IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	

Director of Public Prosecutions (Cth)		
		
v		
		
Lucas Robbins (a pseudonym)		

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JUDGE:	His Honour Judge Holding	
WHERE HELD:	Melbourne	
DATE OF HEARING:	15 November 2021	
DATE OF SENTENCE:	16 December 2021	
CASE MAY BE CITED AS:	CDPP v Robbins (a pseudonym) 	
MEDIUM NEUTRAL CITATION:	[2021] VCC 2172		

REASONS FOR SENTENCE
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Subject:	Criminal Law – Sentencing. 
Catchwords: 	Using a carriage service to access child abuse material; possessing or controlling child abuse material obtain or accessed using a carriage service; admitted offence taken into account under s 16BA of Commonwealth Crimes Act; exceptional circumstances required to order release forthwith; serious offending; exceptional good character; plea of guilty and cooperation with law enforcement during the pandemic; significant remorse and insight into offending; good prospects of rehabilitation; lessened need for specific deterrence.
Legislation Cited:	Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth); Penalties and Sentences Act 1992 (Qld); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic).
Cases Cited:	DPP (Cth) v D'Alessandro (2010) 26 VR 47; DPP (Cth) v Garside (2016) 50 VR 800; R v De Leeuw [2015] NSWCCA 183; R v Verdins (2007) 16 VR 269; R v Tootell ex parte AG [2012] QCA 273; R v Kelly (Edward) [2000] QB 198; Worboyes v R [2021] VSCA 169.
Sentence:	18 months’ imprisonment, with release forthwith on entering into recognizance of $2,000.00, to be of good behaviour for three years; Community Corrections Order of two years’ duration. 

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APPEARANCES:
	Counsel	Solicitors	
For the CDPP	Katherine Holdsworth	Scott Bruckard, Commonwealth Solicitor for Public Prosecutions	
			
For the Accused	Raphael de Vietri	Gallant Law	

HIS HONOUR:

Introduction 

1	Lucas Robbins, you have pleaded guilty to Charge 1, using a carriage service to access child abuse material, contrary to sub-s 474.22(1) of the Criminal Code (Cth) and Charge 2, possessing or controlling child abuse material obtained or accessed using a carriage service, contrary to sub-s 474.22A(1) of the 
Criminal Code (Cth). 
2	The maximum penalty for each charge is 15 years' imprisonment. 
3	You have also admitted, in relation to Charge 1, that the following offence can be taken into account in accordance with s 16BA of the Crimes Act 1914 (Cth), namely: Item 1 – On 7 December 2012 at Melbourne in Victoria, you used a carriage service to access child pornography material, contrary to sub-s 474.19(1) of the Criminal Code (Cth) . 
Circumstances of the offending 
4	The circumstances of your offending are detailed in the prosecution opening which was exhibited on the plea. I act upon the facts as outlined in the opening which were not disputed by you.  I will briefly summarise those circumstances and the prosecution opening should be read in conjunction with these remarks. 
5	On 29 December 2020, investigators from the Box Hill Sexual Offence and Child Abuse Investigation Team (SOCIT) attended your Wheelers Hill address for the purpose of executing search warrants under the Crimes Act 1914 (Cth). 
6	You were present during the execution of the warrants. Devices seized by investigators included your black Seagate hard drive and Thermal Lake PC tower. 
Charge 1:  Access child abuse material 
7	Analysis of the computer data recovered from your Thermal Lake PC tower revealed your download history from the Emule peer-to-peer file sharing website.  This platform was used by you to access files of child abuse material on six separate dates between 10 September 2020 and 15  November 2020. 
8	The names of the files in your download history included titles such as:
•	'13yo Latina girl fucked in ass by dad';
•	'5yo Girl pt3 drugged cum in mouth'; and
•	'11yo Asian girl facial and fucked'. 
16BA Scheduled offence:  Use carriage service to access child pornography 
9	Analysis of your download history for the Emule peer-to-peer file sharing website further revealed that you accessed a file of child pornography on 7 December 2012 entitled;
•	PIFFY AND HARD NIPPLES – 11yo-14yo PRIVATE GIRLS – [Homemade, 12yo, pre-teen, kids, Lolita, jailbait, 9yo, 10yo].
10	Although you are not to be punished specifically for this admitted offence which is to be taken into account, I can have regard to that offence in considering that Charge 1 was not an isolated incident.  I may legitimately increase the penalty that might otherwise have been appropriate in respect of Charge 1 in view of the fact that  this other offence is being taken into account.
Charge 2: Possess child abuse material 
11	Analysis of your black Seagate hard drive revealed that it stored a total of 667 files that were later categorised as child abuse material.  The 667 files located on the hard drive had each been deleted and were only able to be accessed as a result of the forensic analysis of the device.
12	When the search was completed you were conveyed to Box Hill police station and participated in a record of interview.  You made admission to police that you had only purchased the hard drive 'in the past few months'. You said your practice was to download such material, retain in in your possession, and then delete the file at some stage within the following week. On the basis of these admissions, Charge 2 is particularised as occurring between 1 November 2020 and 29 December 2020. 
13	The files were classified using the Automated Child Exploitation Categorisation Scheme (ACECES), as follows:

Category 	Images	Video 	Total 	
1: No Sexual Activity 	315	14	329	
2: Solo/Sex Acts between Child	140	37	177	
3: Child/Adult-Non- Penetrate	29	17	46	
4: Child/Adult Penetrate	43	71	114	
5:Sadism/Bestiality/Child Abuse	1	0	1	
6: Animated or Virtual 	0	0	0	
Total 	528 image files	139 video files	667 files 	

14	For example, the image and video files possessed by you included:
(a)	Category 1:  an image file depicting a pre-pubescent female partially naked, wearing fish net/pattered stockings lying on a bed in a sexualised positioned with her buttocks exposed through the fishnet/patterned stocking;
(b)	Category 2:  A video file of a pre-pubescent female naked and moving around with her legs open and vagina exposed. This female then exposes her buttocks in the air in a sexualised manner exposing her anus which is open.  The video then zooms in on her open anus;
(c)	Category 3:  A video file of an adult male body with an erect penis and with legs straddled over the torso of a naked pre-pubescent female. The female within the video is masturbating the male's penis until he ejaculates semen onto her face.  The female within the video is emotionally distressed and is crying in the video;
(d)	Category 4:  a video file of a pre-pubescent female who is naked and is partially lying on a naked adult male who is also naked.  The female depicted is engaging in oral sex with the male's penis; and
(e)	Category 5:  an image of a pre-pubescent female who is naked and has her legs tied in an open position with yellow coloured rope exposing her vagina. 
15	You  admitted in your record of interview that when using the peer-to-peer network that provided you with this material, you would enter such search terms as, 'teen', 'pre- teen', 'hardcore' or 'PTHC' (referring to 'Pre-teen Hard Core'). 
16	You said, 'You don't have to hunt them out one at a time because they're all in categories and there’s, you know like a big bunch of them and you just select the lot and download the lot sort of thing and it's a mixed bag of stuff…You'd just have a bunch of files going and you would just leave it going till they're downloaded and then you would sift through them and, yeah.' You said that as a result of this, you could have child exploitation material which could also include adult porn and non-porn material. It was clear from the analysis of your equipment and  your admissions in the interview that you downloaded these files intending to access and obtain child abuse material.  You admitted that you had been engaging in such conduct 'on and off in the last few years I suppose'. 
17	You admitted that you had been downloading child exploitation material for your own sexual gratification.  Although, at times in your interview you tried to resile from that proposition and claim that the material did not gratify you. 
18	In relation to how long you would keep the material, you indicated that it would vary between 'days, maybe a week' but then you would say to yourself, 'what am I doing?’ You indicated you would become disgusted with yourself, delete the material, and then after some months like a smoker with an addiction go back to it again and repeat the same behaviour. You stated that sometimes you would delete the material without even having looked at it.  You indicated that when you were  doing this you were frightened and terrified of the very scenario, that in fact eventuated, namely, the police attending at your premises with the result that your world would be, 'turned into a nightmare'.
19	The Prosecutor clarified during the plea hearing that the forensic analysis could not reveal precisely which files downloaded by you were viewed or how many times such files might have been viewed. It was the case that all the files had been deleted by you and could only be recovered using specialised forensic software. 
Applicable Sentencing Principles
20	In sentencing for Commonwealth offences, the court is required to have regard to the matters set out in part IB of the Crimes Act 1914 (Cth) ('the Act'), and in particular the non-exhaustive list of matters set out under s 16A(2). Section 16A(1) of the Act requires the court to impose a sentence which is of a severity appropriate in all the circumstances of the offence.
21	Sections 20(1)(b)(ii) and (iii) of the Act specifically concern offenders convicted of a Commonwealth child sex offence. The effect of this provision is that if a court is sentencing an offender in relation to a Commonwealth child sex offence and is of the view that a sentence of imprisonment is warranted, the court cannot order immediate release under a recognisance release order unless the court is also satisfied of the view that there are 'exceptional circumstances'.  It is agreed that Charges 1 and 2 before me are Commonwealth child sex offences. 
22	The prosecution in this case have submitted helpful and comprehensive submissions on sentence that have referred me to relevant Court of Appeal authority. 
23	In DPP (Cth) v D'Alessandro,  the Court of Appeal set out a number of propositions that have been accepted by appellate courts in respect of child pornography offences, including the following:
'First, that the problem of child pornography is an international one. Secondly, that the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration. Thirdly, that those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it. Fourthly, that those who make up that market cannot escape responsibility for such exploitation.  Fifthly, that limited weight must be given to an offender's prior good character'.
24	In DPP (Cth) v Garside, the Victorian Court of Appeal stated that in construing and applying Commonwealth legislation, it was necessary to apply the principle of comity and accordingly respect the decisions of intermediate appellate courts of other jurisdictions concerning the same legislation.
25	The majority went on to cite with approval the decision of the New South Wales Court of Appeal in De Leeuw, which expanded upon the relevant sentencing principles in respect of child pornography in the following terms:
(a) Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted: (citations omitted). 
(b) The objective seriousness of the offending is ordinarily determined by reference to the following factors:
(i) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(ii) the number of items of images possessed;
(iii) whether the material is for the purpose of sale or further distribution;
(iv) whether the offender will profit from the offence;
(v) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;
(vi) the length of time for which the pornographic material was possessed:  (citations omitted). 
(c) General deterrence is the primary sentencing consideration for offending involving child pornography: (citations omitted). 
(d) Less or limited weight is given to an offender's prior good character: (citations omitted). 
(e) Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the internet as a means of allowing people to access and obtain child pornography: (citations omitted). 
(f) Offending involving child pornography is difficult to detect given the anonymity provided by the internet: (citations omitted). 
(g) The possession of child pornography material creates a market for the continued corruption and exploitation of children: (citations omitted). 
(h) There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime — children are sexually abused in order to supply the market: (citations omitted). 
(i) The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending: (citations omitted).
26	It is to be noted that in Garside, Priest JA dissented in relation to principle (a) expressed above, namely, whether it was correct as a matter of law that unless exceptional circumstances exist, a sentence involving immediate imprisonment is normally warranted.  It is apparent that this dissenting view has  now been resolved by ss 20(1)(b)(ii) and (iii) of the Act, in circumstances where the sentencing judge has formed the view that the offending warrants a sentence of imprisonment.  In those cases immediate release can only now be ordered in circumstances where exceptional circumstances are found to be present.
27	There is agreement between the parties that  s 17A of the Act still imposes an obligation on the court to only pass a sentence of imprisonment after having considered all other available sentences and decided none of those alternative sentences are appropriate in all the circumstances of the case.  Defence Counsel, Mr de Vietri, submits that in all the circumstances of this case, the imposition of a Community Correction Order would be an appropriate sentence, and the court is not obliged to consider whether there are exceptional circumstances before considering such an option. I will return to that submission later in these reasons. 
Personal Circumstances and Psychological assessment
28	Your Counsel has outlined your personal history which is also detailed in a psychological assessment and report prepared by psychologist Simon Candlish.
29	Mr Candlish has a Masters in psychology and 18 years' experience in the forensic field. He was employed by Corrections Victoria for a number of years where he managed a team of 10 psychologists responsible for risk assessments and intervention recommendations for sexual offenders across the state of Victoria.  He has supervised over 500 sexual offender risk assessment reports and is trained in the various actuarial assessment tools designed for assessing the risk profiles of sexual offenders. His report is both comprehensive and detailed. I have read the report carefully in its entirety but make reference only to the parts of the report necessary to explain my reasons for sentence. 
30	In reviewing your personal history, Mr Candlish noted a number of features of your life that he regarded as relevant to the context in which you offended.
31	You grew up in a family where you had a twin brother, an older brother, and a younger brother.  However your parents separated when you were eight years of age. Your father ceased contact with you and has been absent in your life since that young age. Your twin brother had severe medical problems and you recall watching him suffering from regular seizures. 
32	You managed to complete Year 12 and worked in a chemical factory for two or three years from the age of 17. You then obtained employment in a management position in an RSL for nine years. You did not enjoy these positions and they were not remunerative, and eventually you managed to qualify as a paramedic.
33	From 1990 to 2021 you worked as a paramedic until you were charged with these offences.  You describe Ambulance Victoria as 'a great workforce'. Whilst you developed positive working relationships you describe yourself as tending to 'shy away from people' and you have had only one close friend over the last 20 years.  Although you found this work rewarding it was stressful. You had a significant workload, responding to approximately 600 to 800 jobs per year. Unsurprisingly you witnessed a number of traumatic work related events such as being unable to save a premature baby who had suffocated, as well as not being able to revive a drowned girl. You witnessed horrendous scenes as a result of attending serious car accidents.
34	Mr Candlish  formed the view that over  time the combined impact of organisational issues, unmanageable workload and various traumatic incidents had a considerable effect on you and your well-being. This occurred in the context of what became a deteriorating marriage. 
35	You married in 1995, and you have three children to that marriage: two sons (aged 22 and 17), and a daughter (aged 11). Your wife works as a nurse and you describe her as strong willed and dutiful. She has strong Catholic faith. 
36	You reported to Mr Candlish that after about 10 years together your marriage became 'sexless' with 'no emotional interaction'.  Over the last ten years you have experienced erectile dysfunction that you attribute to poor circulation but which 
Mr Candlish assesses as having a psychogenic component that would be best treated through specialist psychological intervention. You coped with your deteriorating marriage  by  maintaining a routine of work and study. You wrote articles relating to first aid treatment and paramedic practice that were published in a number of educative journals and papers.  You spent much time on your computer at home with feelings of isolation.  You had started to view pornography in the early 2000's and this increased over time.  You started to use the peer-to-peer network to download movies and then started to download pornography. 
37	Mr Candlish states as follows:
'Mr Robbins has displayed an avoidant coping style, with emotional withdrawal and use of internet pornography to meet his sexual needs.  He avoided discussions about his marital issues.  He was emotionally lonely, socially isolated, highly stressed, and likely experiencing periods of lowered mood.  Mr Robbins has also experience chronic stress associated with the nature of his work and has relied on detachment as a form of coping.  His use of pornography also represents a form of self-soothing in response to his chronic symptoms of stress.
'Mr Robbins has obtained child abuse material through peer-to-peer sharing sites and despite some initial shock, he has become aroused to this material.  Mr Robbins’ sexual arousal, pattern of sexual objectification through  regular pornography consumption and his gradual desensitisation have contributed to his offending.
'Mr Robbins highly likely experienced sexual arousal to the child abuse material he viewed, however it is less clear if he would meet criteria for a paedophilia disorder.  His deviant arousal has occurred in the context of desensitisation and objectification after sustained immersion in pornographic contact via the internet and his progressive interest in prurient themes.  He is also aroused by adult females and has a history of sexual activity with adult females'.
38	Although Mr Candlish regards your work-related stress, isolation and emotional loneliness as contributing to your offending you are not assessed to meet the threshold for a psychological condition.  As a result it is not submitted that  any of the sentencing principles relating to mental health as discussed in Verdins  has any application to the sentence that I impose.  
39	Mr Candlish assessed you as being remorseful.  He states you broke down in tears on a number of occasions, revealing considerable underlying distress, guilt and sadness.  He describes you as showing appropriate acknowledgement of the seriousness of your behaviour.  You stated to him that your use of child abuse material was 'an appalling breach of my own standards, there are clearly serious issues I need to address, I am responsible, I didn't need to press the button'.  He states that you appeared to be 'highly ashamed' and spoke with 'disgust in himself'. He says that you have discussed the serious impact of your behaviour and you are wanting to make amends. 
40	Mr Candlish administered a number of psychometric tests and actuarial risk assessment tasks upon you and exercised well researched clinical approaches in determining your risk of reoffending.  He concluded that you were considered to fall into the 'Low- risk' category.  He stated:
'Mr Robbins appears to show good prospects for rehabilitation of his sexual offending behaviour based on his presentation, his history, and his assessed risk level.  Given the potential for Mr Robbins’ risk level to continue to reduce over time, particularly through the ongoing achievement of pro social goals, it would be useful for him to continue to have opportunities to pursue such goals in the wider community with support provided'.
41	In relation to such supports you have you have sought the following assistance:
42	You have completed two online courses sponsored by St Vincent's Hospital titled 'THIS WAY UP', designed to assist people in learning strategies to deal with such conditions as depression, anxiety and post-traumatic stress disorders. 
43	You have attended six counselling sessions with the principal psychologist for Ambulance Victoria, Dr Megan Dobbie.  This counselling has focussing on retirement planning and transition out of work.  Dr Dobbie has written a letter where it is apparent she is aware of the charges, and whilst she does not deal with sex offending behaviours she has assisted you in a supportive capacity. 
44	Under the referral from your general practitioner you have been placed on mental health care plan for psychological treatment for depression and counselling regarding alcohol consumption.  A report has been tendered by psychologist, 
Ms Melissa Mizzi who has conducted eight counselling sessions with you between June and November 2021. Ms Mizzi states in her report, 'Mr Robbins has expressed a genuine desire to attend to his psychological functioning namely in relation to his offending behaviour. Mr Robbins has reported feelings of remorse in relation to his offending behaviour. Mr Robbins intends to commit to a treatment pathway that addresses his offending behaviour and that identifies causes and triggers and underlying factors that will lead him to rehabilitative position'. 
45	You have recently engaged the services of Peter Hanley, psychologist, with a view to completing a specialist sex offender treatment program. A letter from Mr Hanley  was tendered on your plea, part of which states: 
'Mr Robbins presented as an intellectual man with 'avoidant' personality traits and prominent anxious distress in the context of his legal issues and family breakdown.  He reported a history of relationship problems in the context of feelings of inadequacy, performance anxiety, and communication problems. He demonstrated incipient insight into his offending behaviour.  He was accepted into the sex offender treatment program (SOTP) with goals of developing insight, enhancing his coping skills, modifying his sexual behaviour, improving his social interpersonal skills, and developing a relapse prevention plan to reduce his risk of recidivism'.
The Defence submissions
46	The defence submit that in all the circumstances of your case a community corrections order is open as an appropriate sentence.  In the alternative, they submit that if jail is to be considered there are exceptional circumstances that justify immediate release upon a recognisance release order.
47	It is submitted that when one has regard to the number of images and their classification as well as the fact that the images were not distributed or involved any commerciality, the objective assessment of the circumstances of the offending place the offences at the 'lower end of the medium range of seriousness'. 
48	The defence submit that you have already been devastated by the results of being charged.  You have had to resign from your employment.  Your wife has left you and currently prevents you from seeing your children. Your wife is now raising your children on her own and has, along with your 11-year-old daughter, needed the assistance of  psychological counselling.  It is not put that the family hardship is  itself an exceptional sentencing consideration but that these matters are in themselves a significant punitive aspect upon you, which moderates the need for specific deterrence.  
49	There is no dispute between the defence and prosecution you entered a plea of guilty at an early stage, at a committal mention hearing on 14 May 2021, and are entitled to a significant discount in circumstances where your plea was entered during the COVID-19 pandemic.
50	Consistent with the plea of guilty, the defence rely upon your cooperation with the law enforcement authorities, and what is submitted to have been a 'full and frank' record of interview. 
51	The defence also place reliance upon what is submitted to be your 'exceptionally good character' and contribution to the community through a long and dedicated service with Ambulance Victoria. The defence acknowledge the sentencing principle that for offending of this type the courts normally place less weight on a person's good character and place more weight on principles of general deterrence.  However, it is submitted that the evidence of your good character and contribution to society is in itself exceptional, and distinguishable from a person who comes before the court simply with the claim of no prior convictions. 
52	The defence also rely upon the assessment of Mr Candlish that you have good prospects of rehabilitation and are assessed as low risk of reoffending. They point to the fact that you have complied since being charged with very strict bail conditions regarding your use of the internet. They rely upon this as evidence that you are likely to comply with conditions imposed under a Community Correction Order or Recognisance Release Order.
Prosecution Submissions
53	The prosecution submit that the objective circumstances surrounding this offence do not make it an offence 'at the lower end of the medium range of seriousness'.  The distribution of the material, or an aspect of  commerciality would be aggravating features of the offending. The absence of features of aggravation are not circumstances of mitigation. They point to the fact that the material encompasses a wide range of activity, some of which depicted a pre-pubescent girl emotionally distressed and crying as an adult male ejaculated semen on her face. The prosecution stress that the presence of lower category material (as compared to higher category material) is not a mitigating factor and does not materially diminish the gravity of the offending. 
54	The prosecution point to the fact that there were 667 files and that 'the significance of quantity lies more in the number of different children who are depicted and thereby victimised'.  Reliance is placed upon the seriousness of the offending and submit that the only appropriate sentencing disposition is a term of imprisonment involving an actual period of time to be served in custody. 
55	The prosecution acknowledge the early plea of guilty entered in circumstances of the pandemic, and your prior good character, but submit that these factors are not exceptional circumstances under s 20(1)(b)(ii) and (iii) of the Act and therefore the Court, in compliance with those provisions, must impose some period of actual custody.  
56	The prosecution submits that even if there is positive evidence relating to the low risk of re-offending and positive prospects of rehabilitation such matters should be given less weight and that general deterrence is the paramount consideration. 
57	To assist me, the prosecution have provided a 'Table of Comparative cases' and submit that such cases have relevant similarities which can be used by the Court to gauge a 'yardstick' as to the appropriate sentence in this case.  I note that many or all of these decisions are prior to the comparatively recent imposition of the 'exceptional circumstances' test. 
Analysis
58	I have carefully perused the 'Table of Comparative cases' and found them to be of assistance with general sentencing principles. However such cases must be judged according to their own individual features and I find that there are particular circumstances of this case that are not directly comparable to any one of the cases in that table.  
59	I reject the defence submission that in all the circumstances of this case a Community Corrections Order is an appropriate sentence. Charge 1 involves six instances of access in circumstances where you admit you contemplated the nightmare scenario of police raiding your premises.  You were fully cognisant of the serious criminality you were engaging in when accessing this material. The number of child victims is significant.  The extent to which some of them have been degraded, humiliated and subjected to the most exploitative behaviour is awful.  Your conduct contributes to the market for this material and encourages such exploitation.  Although there is some overlap in the criminal conduct between the charges, in the sense that it was the accessing of the material that enabled you to possess the material, the possession and retention of the material even for limited periods of time constitutes separate criminal conduct.  I note, for example that you possessed a total of 114 files of category 4 material including some 71 videos of this vile and depraved material.
60	Charge 1 is not to be regarded as an isolated instance. It is concerning that the date of the offence to be taken into account in respect of that charge occurred almost 8 years prior. 
61	The maximum penalty being 15 years in respect of both Charges 1 and 2, and the appellate authorities that stress the serious nature of this type of offending, along with the repeated instances of accessing this material and the nature and quantity  of material possessed all lead me to the conclusion that the offending can only be appropriately punished by the imposition of a custodial sentence. 
62	Having reached that conclusion I must consider whether I am satisfied that there are, 'exceptional circumstances' that would allow me to order your release immediately upon the entering of a recognisance release order. 
63	As to the meaning of 'exceptional circumstances' the prosecution have referred me to Queensland Court of Appeal authority, where that expression was considered  in the context of the Penalties and Sentences Act 1992 (Qld).  Like this case, a provision of that Act required an actual term of imprisonment to be served in respect of a conviction for certain offences, unless the court found that there existed 'exceptional circumstances'.  Like the Commonwealth provision, the phrase was not specifically defined within the Act.  The court cited with approval the following statement: 
'We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art.  It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon.  To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered'.  
64	After reviewing further Australian authorities in relation to similar expressions the Court stated:
'What emerges then, is there is no one clear prescription for what circumstances are capable of being regarded as exceptional.  Consideration must be given not only to the unusualness of individual factors but to their weight; and factors which taken alone may not be out of the ordinary may in combination constitute an exceptional case'.
65	The phrase, 'exceptional circumstances' must be construed within its statutory context, giving full weight to the legislative norm, which is that offending of this type will usually  attract an immediate term of imprisonment. The  requirement represents a high hurdle that will not often be surmounted. A combination of factors may be relied upon which considered individually may not be exceptional and due regard must be had to the use of the word 'exceptional'.
66	I am satisfied that there is a combination of factors that together do constitute such exceptional circumstances. I accept that your offending conduct took place in a situation where colloquially described you were somewhat vulnerable. You were passive, isolated, your marriage dysfunctional, and under mounting significant pressure from your onerous work.  Your offending behaviour is to be contrasted with that of another not subject to what I accept were significant personal stressors.
67	First, although normally in cases such as this, less weight is attached to evidence of good character, I accept the defence submission that your employment history is one of quite extraordinary service  to the community.  I was informed during the plea that there are different levels of service that are provided by Ambulance Victoria and to perform in the MICA service is to attend at some of the most demanding emergencies experienced.  Amongst the material tendered on the plea is the 15-year service medal with an accompanying congratulatory letter that states in part, 'There is widespread agreement that to perform this role in high end ambulance care for 15 years or more is particularly meritorious'. 
68	Along with the medals for over 30 years of dedicated service and a safe driving award I was particularly impressed with over 40 letters of repeated congratulations for attending emergency situation that spanned from 1990 to 2019. There was references amongst those letters to your attending in situations where you were 'off duty' and in a variety of situations including one where you managed to compassionately deal with a suicidal person who was self-harming. The letters speak of you consistently acting in a professional and caring manner towards those in distress. You have also appeared to put real effort into conquering academic challenges and as a result have been able to write a number of articles that have been published relating to first aid. These contributions and the demonstration of such pro-social values are in stark contrast to your offending. In my view your history of employment is deserving in terms of the contribution you have made. I also find that such a long term employment history performing a role where you demonstrated caring for others is an encouraging indicator of your prospects of rehabilitation. 
69	Second, I do regard your plea of guilty entered in the time of the pandemic as warranting a perceptible amelioration in your sentence. It is relevant in that it provides an unprecedented utilitarian benefit, given the backlog of trials in this  court, and there is an increased risk of custodial hardship in gaol as custodial authorities impose additional restrictions in order to cope with the spread of the virus. 
70	Third I find that you have demonstrated significant remorse.  In your interview you made frank admissions and have cooperated with authorities in explaining your conduct. Tendered on your plea was a letter from you to the court where you acknowledge that your conduct involved morally repugnant decisions, and spoke of your desire to commit to being a productive and contributing member of the community.
71	Fourth, I find the fact that all of the files the subject of the possession charge were  deleted, consistent with what you said in the interview.  You said you would look at the files for some time and then become disgusted with yourself and delete the files.  I also find that attitude consistent with your statements of remorse and insight into the depravity of your own conduct. The fact that you were deleting the files rather than collecting a quantity for later use encourages me that you were to some extent appreciating the repugnance of your offending whilst succumbing to it. 
72	Fifth, you have made efforts since being charged to obtain professional psychological supports intended to reduce the chance of you re-offending. In particular you have now completed a number of counselling sessions to address some of your problems and have enrolled in an appropriate sex offender treatment program with psychologist Peter Hanley. I accept the defence submission, that your efforts since being charged and the compliance with bail conditions restricting your use of the internet are strong indicators that you are likely to abide with the lawful obligations of the sentence that I will impose. 
73	Sixth, I accept the views expressed in the report of Mr Candlish. He appears to be a person with particular expertise in this field and expresses the view that with appropriate support your risk of reoffending will diminish 'over time, particularly through the ongoing achievement of pro-social goals'. 
74	Seventh, the corollary of this is that if you are not able continue taking advantage of these supports your rehabilitation may be impeded. Immediate imprisonment of you would most likely see you surrounded by others who have offended in a similar manner. Such offenders are likely to possess  cognitive distortions with denial of the deviant nature of this type of offending. I regard you being in the company of such others as detrimental to your ongoing rehabilitation.  I note Mr Candlish expresses the view in his report that, 'Any ongoing distorted attitudes, sustained isolation from others and problems meeting his sexual needs in healthy manner might perpetuate Mr Robbins’ risk for further sexual offending'. Sight cannot be lost of the fact that your individual rehabilitation not only benefits you, but also ensures the protection of the community and will lead to a reduction in the demand for this vile, exploitative and corrosive material.
75	Eighth, I accept that the process of your arrest, detention prior to bail, interrogation and journey through the system of criminal justice system, in combination with the public outing of your conduct has been a salutary experience for you.
76	Ninth, as a consequence of your offending, you have lost your employment, career, marriage and you are currently estranged from your children. The impact of this cannot be underestimated. There is in my view a lessened need for specific deterrence in the individual circumstances of your case. 
77	I am of the view that the Commonwealth sentencing options provides me with wide scope in imposing a sentence that will both reflect the seriousness of your conduct, the importance of general deterrence, as well as imposing a punitive aspect and treatment that will promote your ongoing rehabilitation. 
78	I note that in imposing this sentence it is necessary for me to have regard all relevant matters known to the court and to balance the competing sentencing considerations.  In  addition I must  have  regard to  s 16A(2AAA) of the Act and impose conditions and a sentence that allows sufficient time for you to undertake a rehabilitation program. 
Sentence
79	Would you please stand, Mr Robbins.  In respect of Charge 1, you are convicted and sentenced to 18 months' imprisonment.  In respect of that charge I order that you be released forthwith upon entering a recognisance in the amount of $2,000 to be of good behaviour for a period of three years from today.
80	In respect of Charge 1 you  are also to comply with the following further conditions, pursuant to s 20(1B) of the Crimes Act 1914 (Cth) for a period of two years:
•	You are to be under the supervision of the Deputy Commissioner, Community
Correctional Services and Sex Offender Management or his or her nominee;  
•	You are to attend for assessment and, if assessed as suitable, treatment for sex offender programs or programs to reduce re-offending as directed by Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee;
•	You are to undertake such treatment or rehabilitation programs that community corrections officer reasonably directs; 
•	You are to report to the RINGWOOD community corrections centre, (60-62 MAROONDAH HIGHWAY RINGWOOD VIC 3134) by 4pm on 20 December 2021; 
•	You are to report to and receive visits from a community corrections officer or officers; 
•	You are to be subject to the supervision of a community corrections officer appointed in accordance with this order;
•	You are to notify an officer at the specified community corrections centre of any change of address or employment within 2 clear working days after the change; 
•	You are not to travel interstate or overseas without the written permission of the probation officer; and
•	You are to obey all reasonable directions of the community corrections officer.   
81	In respect of Charge 2, you are convicted and placed on a Community Corrections Order of two years' duration. In addition to the core conditions of that order I impose the following conditions: 
•	300 hours of unpaid community work (s 48C of the Sentencing Act 1991 (Vic));
•	Mental Health assessment and treatment (s 48(D)(3)(e) of the Sentencing Act 1991 (Vic));
•	Supervision (s 48E of the Sentencing Act 1991 (Vic));
•	And that you undertake any programs to address offending behaviour as deemed necessary by Corrections (s 48(f) of the Sentencing Act 1991 (Vic)). 
82	I impose a special condition of the Community Corrections Order that you undertake and complete the sex offender treatment program conducted by Central Melbourne Psychology supervised by psychologist Peter Hanley or his nominee, and that you continue to abide by any lawful directions relating to ongoing treatment as directed by Mr Peter Hanley for the duration of the Order, or until Mr Hanley otherwise directs. 
83	Charge 1 is a class 2 offence under the Sex Offenders Registration Act 2004 (Vic), and a registrable offence.  I order that you be subject to a Sex Offender Registration Order and comply with the reporting obligations under that Act for a period of eight years from today. 
84	Mr Robbins, the provisions of the Commonwealth Crimes Act 1914 provides that I must explain the consequences of these orders to you and entering into a community corrections order is something that requires your compliance and your consent.  In a moment I am going to stand down so that these orders can be prepared and I will be asking you to sign the orders and acknowledge your understanding of the orders.
85	In relation to Charge 1, you are going to be placed on a, what is called a recognisance release order in an amount of $2,000.  You do not have to pay that amount but you need to understand that it is in effect a gaol sentence that allows your release upon you giving the undertaking that you will be of good behaviour and comply with the recognisance release order.  If you fail to comply with that, the consequences are likely to be that you will forfeit $2,000 and perhaps of more significance, you will be brought back to be dealt with and what will be considered is whether you have to serve that 18 months of imprisonment.
86	That promise runs for three years from today and you need to bear that in mind.  In relation to the community corrections order, you have heard the conditions that I am imposing.  You are being asked to complete 300 hours of community work - unpaid community work.  And in me considering that, I have considered that you have certain skills that can provide for the community and you are a person who is likely to be able to undertake that work.  It is a punitive component of the order.
87	Of course the other conditions that you have heard me read out relate to your psychological treatment and your ongoing commitment to receiving that psychological treatment.  I am going to ask you now, are you prepared to enter into a community corrections order and abide by those conditions that I have announced?
88	OFFENDER:  I am, Your Honour.
89	HIS HONOUR:  All right, I am going to stand down for a moment so that those orders can be prepared.
(Short adjournment.) 
90	HIS HONOUR:  I have seen the signature on the relevant documents, copies will be provided to the parties and they will be placed on the court record.  That brings this proceeding to an end.  I just wanted to say to you, Mr Robbins, in those very long reasons that I read out, I hope it was apparent to you just how close you came to serving a period of actual imprisonment.
91	OFFENDER:  I do, Your Honour.
92	HIS HONOUR:  I found that there were some exceptional circumstances that justified me making the sentence that I did.  If you will appreciate of course a large part of that or a significant part of that was your prior history and your good character.
93	OFFENDER:  Yes. 
94	HIS HONOUR:  Of course that is all gone now.  You have been convicted of a very serious offence.  And of course, Mr de Vietri will explain to you the consequences of my orders but be under no illusion, you know, you are on tender hooks for the next three years and I am expecting that what I have been told in those expert reports will come to fruition that you will abide by these conditions.  It is just plain as day.  If you do not where are you going to end up.  Can I thank you, Ms Holdsworth for your very helpful submissions and you too, Mr de Vietri, for the work you have put into this case.  I will adjourn the court now, thanks.
95	MR de VIETRI:  As Your Honour pleases.
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