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

THE DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
RAYMOND IOANE (A PSEUDONYM)		
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JUDGE:	HER HONOUR JUDGE DAWES 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	15 March 2022	
DATE OF SENTENCE:	11 April 2022	
CASE MAY BE CITED AS:	DPP v Ioane (a pseudonym)	
MEDIUM NEUTRAL CITATION:	[2022] VCC 539		

REASONS FOR SENTENCE
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Subject:	Criminal law – sentence 
Catchwords: 	Sexual penetration of a child under the age of 16 years; indecent act with a child under 16 years; persistent sexual abuse of a child under 16 years; involve a child in the production of child abuse material; use carriage service to access child pornography; use carriage service to make child pornography available; use carriage service to cause child pornography to be transmitted to self; use carriage service to solicit child pornography; possess child abuse material; destruction of evidence; fail to comply with order to provide information to police
Legislation Cited:	Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic); Crimes Act 1914 (Cth)
Cases Cited:	Bugmy v The Queen [2013] HCA 37; R v Verdins (2007) 16 VR 269; DPP (Cth) & DPP v Swingler [2017] VSCA 305
Sentence:	Total effective sentence: 12 years; eligible for release after 8 years and 6 months  
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APPEARANCES:
	Counsel	Solicitors	
For the Crown	Mr S. Devlin	Solicitor for the Director of Public Prosecutions	
			
For the Accused	Ms J. Kretzenbacher	Greg Thomas Barrister & Solicitor	

HER HONOUR:

1	Raymond Ioane, you have pleaded guilty to the following 12 charges:
Charge on indictment	Offence	Maximum Sentence	
1	Sexual penetration of a child under the age of 16 years	25 years	
2	Indecent act with a child under 16 years	10 years	
3	Persistent sexual abuse of a child under 16 years (9 particulars)	25 years	
4	Involve a child in the production of child abuse material	10 years	
5	Use carriage service to access child pornography material 	15 years	
6	Use carriage service to make child pornography material available 	15 years	
7	Use carriage service to cause child pornography material to be transmitted to himself 	15 years	
8	Use carriage service to solicit child pornography material 	15 years	
9	Possess child abuse material	10 years	

10	Destruction of evidence	5 years or 600 penalty units (or both)	
11	Fail to comply with order to provide information to police 	5 years or 300 penalty units (or both)	
12	Non-prohibited person in possession of an unregistered Category A  longarm 	2 years or 120 penalty units	
2	You have also pleaded guilty to two related summary charges: 
Summary Charge	Offence	Maximum Sentence	
31	Contravene bail condition	3 months	
133	Possess cartridge ammunition 	40 penalty units	
3	You were born in Samoa, moved to New Zealand when you were young and then moved to reside in Australia in 2011.  You met your partner in 2013 and commenced a relationship with her.  The relationship ended after approximately seven years.  
4	The victim of your offending involving sexual abuse and the production of child abuse material (“CAM”) is the daughter of your former partner, who was aged between 7 to 14 years at the relevant time.  You were aged between 28 to 35 years at the time of your offending.  You are now aged 37 years. 
5	The Summary of Prosecution Opening has been tendered and is agreed to be an accurate account of events.  A general summary of the facts will form part of this sentence.  
6	In September 2019, the New Zealand Department of Internal Affairs (“DIA”) was contacted by Mega.nz, a publicly available website, to report suspicious links sent to user accounts.  The links were reviewed by the DIA and found to contain CAM.  A referral package from the DIA was received by the Australian Centre to Counter Child Exploitation on 5 November 2019.  Subsequent investigations revealed that the relevant accounts containing CAM were connected to your use.  
7	Police attended at your address, on 18 June 2020.  You had separated from your partner three weeks prior to this date.  They executed 
three search warrants.  You accompanied police to your bedroom to discuss the nature of the allegations.  In the course of conversation, you claimed that the address on the search warrant was incorrect.  The informant left your room to check the validity of the warrant, while two other police members remained with you.  
8	You picked up a torch and struck your Apple iPhone several times with force, until you were overpowered by police.  You caused extensive damage to your mobile phone.  
9	You were restrained and a field interview was conducted.  You were asked to provide the PIN number or password for your phone, which you refused to do.  Subsequent forensic examination determined that the damage you caused to the iPhone prevented the recovery of any information from that device. 
10	Your vehicle was parked in the driveway of the premises.  A search was conducted and the following items were located: 
•	One black coloured Samsung Galaxy mobile phone;
•	One black and silver coloured Apple iPhone;
•	One white coloured Apple iPhone;
•	One double-barrelled shotgun;
•	One .308 round of ammunition. 
11	The shotgun, without a serial number, was located in the boot.  It was under the carpet and wrapped in plastic bags, laying on top of the spare tyre.  You are not the holder of a licence under the Firearms Act 1996.  The ammunition, which was not compatible with the shotgun, was located in the compartment of the driver's side door.  
12	You were arrested and conveyed to the Police Station and a record of interview was conducted.  You were charged with offences relating to the firearm.  Your explanation for its possession was for your own protection.  You were released on bail with conditions that included that you were to reside at your address.  
13	All of the mobile phones that were seized from your vehicle were examined.  Forensic analysis revealed that two of them, being the Samsung Galaxy mobile phone and the black and silver coloured Apple iPhone contained images and video files of CAM.  Child exploitation material is classified in accordance with the categorisation system that is summarised on page 6 of the Prosecution Opening.  
14	The material has been categorised as follows:  
•	Category 1 (no sexual activity) – 1051 images and videos;
•	Category 2 (solo sexual acts between children) – 220 images and videos.
•	Category 3 (adult/child non-penetrate) – 592 images and videos.
•	Category 4 (adult/child penetrate) – 826 images and videos.
•	Category 5 (sadism/bestiality/child abuse) – 46 images and videos.
•	No animated or virtual images or videos of CAM were found (category 6).
•	In total, 6,641 images and videos were located on both mobile phones, 3,906 of which did not contain child exploitation material.

15	A description of the contents of the images and videos has been provided in the Prosecution Opening.  I have not viewed the material as the descriptions appear to contain sufficient detail, and your counsel has agreed with the accuracy of the prosecution summary.  The child exploitation material ranges from low level child pornography through to explicit and offensive material, demonstrating a high degree of depravity.  The CAM that you accessed and had in your possession falls within five categories, depicting victims ranging in age from approximately two years to 16 years.  
16	Analysis reveals that approximately 40 per cent of the CAM falls within Category 1, where there is no sexual activity.  The material includes depictions of female children aged between three to 16 years, exposing their breasts, anus or vagina.  
17	The Category 2 images depict female children aged between five to 14 years, masturbating themselves, inserting fingers or items into their vagina, or performing sexual acts with other children of a similar age.  
18	The Category 3 images depict non-penetrative sexual activity between adults and male and female children, aged between two to 16 years.  Within the files there are adult hands touching or exposing a vagina and children in close proximity to an adult male's erect penis.  
19	The Category 4 images consist of penetrative sexual activity and include male and female children, aged between two to 14 years, being anally or vaginally penetrated by an adult male penis or other items.  They also include images of children performing fellatio.  
20	The Category 5 images include degrading contact where male and female children aged between two to 12 years are blindfolded and perform sexual acts on adults, children penetrated by a dog, a dog licking a boy's penis and an animal licking a child's vagina.  
21	I consider that while a large portion of the material in your possession has been classified as Category 1, this does not distract from the seriousness of the highly disturbing material which falls within the higher categories.  The number of images and videos in these categories in your possession was not insignificant.  Charge 9 relates to the possession of this material on one day, 18 June 2020.  
22	A Cellebrite extraction report of your Samsung Galaxy phone revealed the following relevant information:  
•	You gained access to four Mega.nz links enabling your access to over 5,000 files containing CAM between 22 October and 6 November 2018.  This offending has resulted in a rolled-up charge, being a collection of identifiable charges, bundled together in a single charge.  It relates to your accessing the child pornography material using a carriage service, over a period of approximately two weeks.  
23	A Cellebrite extraction report of your black and silver Apple iPhone revealed the following relevant information:  
•	A series of messages on the KIK application were located.  These KIK messages were compared with a spreadsheet of Mega.nz links which were received by you.  You received Mega.nz links containing CAM on 21 occasions between 5 February and 6 September 2019, with a varying number of files containing CAM, ranging from one to 22,123 files within each link.  Charge 7 is a rolled-up charge relating to similar offending where you received CAM over a seven month period.
•	You made CAM on Mega.nz links available to other KIK users on 26 occasions between 1 February and 17 July 2019.  Within each link that you sent, there were a varying number of files containing CAM ranging from one to 22,123 files.  Charge 6 is a rolled-up charge relating to similar offending where you forwarded CAM, over a period of approximately five and a half months.  
•	Between 11 February and 22 February 2019, you were involved in messaging multiple KIK account holders that you believed could supply you with links to CAM, asking for “trades”.  Charge 8 is a rolled-up charge that relates to similar offending where you asked for “trades”, on 34 different occasions over a period of 11 days.  
24	Child pornography is a global problem that causes intrinsic harm.  It is far from being a victimless crime.  It is apparent from the analysis prepared that a significant number of children are involved in the material that you had in your possession.  These children have been exploited for the purpose of producing the images and videos.  The possession of child pornography creates a market for the continued corruption and exploitation of children.
25	Charges 5, 6 and 7 all relate to the transmission of child exploitation material on numerous occasions.  Charges 6 and 7 both involve the use of the 
KIK app to receive and send CAM.  Charge 8 relates to your soliciting this material on the KIK app.  General deterrence is the primary sentencing consideration for all of the offending involving child pornography.  
26	Your explanation for this conduct is that you thought that having access to this material might help to deter you from offending against your partner's daughter.  You were unsure how to address your illicit conduct.  I am told that you were “hooked” on engaging into these chat rooms.  Given the significant number and the nature of the images and videos, in the context of the overall circumstances of your sexual misconduct, it is clear that you received gratification from viewing this material.  
27	Forensic examination of the materials also disclosed that you were involved in the production of CAM.  Charge 4 relates to capturing the images of your sexual abuse of the victim, between 28 July and 19 October 2018.  This is a rolled-up charge relating to similar offending that occurred on seven different occasions over a period of approximately 12 weeks.  These files provide evidence which support six of the nine particulars outlined in Charge 3.  
•	On 28 July 2018, you created 26 video files which depict you inserting your penis into the victim's anus and vagina.  The recordings vary in length from two to nine seconds.  
•	On 8 August 2018, you created 27 video files and one photograph which depict you inserting your penis into the victim's anus and vagina.  The recordings are all nine seconds long, except for the last recording which lasts for four minutes and 58 seconds.  
•	On 11 August 2018, you created five video files which depict your penis positioned next to the complainant's vagina.  The recordings vary in length between two to 59 seconds.  
•	On 12 August 2018, you created 13 video files which depict you inserting your penis into the complainant's anus and vagina.  Each recording is of 
two seconds in length. 
•	On 25 August 2018, you created 18 video files which depict you inserting your penis into the complainant's vagina.  The recordings vary in length from between two to 59 seconds.  
•	On 14 October 2018, you created 16 video files which depict you inserting your penis into the complainant's mouth and anus.  The recordings vary in length of between two to 60 seconds. 
•	On 19 October 2018, you created two video files which depict the complainant's exposed vagina.  The recordings are nine seconds and 
39 seconds in length.  The content of these two videos do not relate to any particulars of the offending in Charge 3.  
28	You disclosed to Ms Gina Cidoni, psychologist, that you were sexually aroused when you viewed the child pornographic material that you created.  I will refer to Ms Cidoni's report later in these reasons.  While you knew it was wrong, you continued to engage in this conduct.  
29	On 29 July 2020 you were arrested.  You had spent three nights staying with your former partner and the children.  This was in contravention of a condition of your undertaking of bail.  
30	You were interviewed by police again and answered “no comment” before you were remanded into custody.  
31	On 29 July 2020, and subsequently on 11 September 2020, police interviewed the victim by way of the VARE procedure.  She disclosed that you had been sexually assaulting her since just after her seventh birthday.  She described a number of specific instances, namely:
•	She was sleeping in the lounge at the family home under a blanket.  You went between her legs with a flashlight and she felt you insert your tongue inside her.  
•	When the victim was between seven to eight years of age, you were watching a movie together in your bedroom and you touched the victim near her vagina.  
•	When the victim was 11 years of age, you pushed her so that she was lying down.  You pulled her pants down and inserted your penis into her vagina.  The victim recalls bleeding afterwards.  
•	When the victim was aged between 11 to 12 years, she was helping you to “unpack stuff”.  At that time, she was lying on her back and she described that you put your “thing” inside her.  
•	On the day prior to your second arrest, you inserted your tongue into the victim's vagina.  She was 14 years of age at this time.   
32	Sexual offences are crimes of violence that cause harm to victims.  There is a presumption of harm to a child who is subjected to inappropriate sexual conduct.  Your offending against your partner's daughter is extremely serious.  It commenced within a short time of the commencement of your relationship with the victim's mother, when the victim was only seven years of age.  
33	You took advantage of her vulnerability and youth when you committed these inappropriate sexual acts.  You repeatedly offended against the same victim over a lengthy period of time, up until the day before you were arrested for a second time.  The final act of sexual penetration occurred when you knew that police investigation into your sexual misconduct was underway.
34	The victim had the right to be safe in your company.  Your offending involved a gross breach of trust and a fundamental betrayal of your obligations towards an innocent young child, over a protracted period.  The frequency of your misconduct clearly normalised behaviour that was, in fact, dreadful, grotesque offending.  You had time to reflect on your offending conduct yet chose to persist with it.  
35	The violation of the victim was aggravated by your filming the sexual activity and then keeping those files.  I am conscious of the need to avoid double punishment for charges 3 and 4 and have taken this into account when considering the relevant penalties.
36	The seriousness of your offending has been conceded.  You accept that the gravity of your misconduct warrants the imposition of a term of imprisonment on each charge.  
37	I am told that you were often affected by alcohol at the time of your sexual offending, although you do not know what triggered your misconduct.  You described to Ms Cidoni that you do not understand why you did it, other than you recognise that you must be unwell and that you need help.  
38	Victim Impact Statements prepared by the victim's stepmother and father have been provided to the Court.  
39	The victim's stepmother writes that your conduct has had a significant impact on her stepdaughter.  She is traumatised, distressed and now suffers from major anxiety panic attacks.  She has begun to hate herself and tried to physically harm  herself.  The damage that your conduct has caused is readily apparent.  The victim's behaviour has changed.  She is no longer vibrant, loving and confident.  She has become very sad, feels lost and disconnected with her family.  Her capacity to trust others has reduced.  Although her mental health is beginning to improve, she needs continuous emotional and mental support.  Not surprisingly, her stepmother writes that it has been heartbreaking as a parent to see the victim struggle through everyday life.  
40	The victim's father writes that your conduct has affected him emotionally and physically.  He believes that the hurt he feels will continue, until his daughter receives the justice that she deserves.  
41	I consider that your conduct would have a profound effect on the victim and her family.  I take the Victim Impact Statements into account.  The victim is not responsible for what occurred.  I hope that she is able to continue to access the appropriate supports and put these events behind her, as she moves on with her life.
42	You were charged with the firearm offences and released on bail on 
18 June 2020.  On 29 July 2020, you were arrested again and interviewed regarding the sexual offending.  You were remanded on that day and have been incarcerated since that time.  You initially faced more than 130 charges and not surprisingly, resolution discussions took place over a lengthy period.  On 20 August 2021, your matter proceeded in the Magistrates' Court by way of straight hand-up brief, where pleas of guilty were entered to the relevant charges.  Your plea was heard on 15 March 2022.  
43	The prosecution agrees that your matter resolved at the earliest opportunity.  Your plea of guilty has a significant utilitarian benefit.  You have saved the Court and the community the time and expense of running a trial.  You have spared the victim and her family members the ordeal of giving evidence.  In those circumstances, you have facilitated the efficient administration of justice and are entitled to a benefit for that. 
44	Your plea of guilty has an additional benefit at the moment, given the delay in jury trials that has resulted from the COVID-19 pandemic.  I consider the utilitarian benefit of your plea to be enhanced by the fact that it was entered at the current time.  The prosecution agrees that the timing of a plea of guilty should attract a more pronounced amelioration of  sentence than at another time. 
45	Your plea of guilty also demonstrates that you have now accepted responsibility for your offending, as opposed to the time of your first arrest, where your conduct precluded the investigative analysis of one of your 
mobile phones.  Your counsel submits that it is also consistent with remorse.  I accept this submission, although it was not immediate.  I will return to the aspect of remorse later in these reasons.  
46	You were born in November 1984 in Samoa.  You are the second youngest of seven children.  One of your siblings passed away from SIDS when you were very young.  
47	You moved to New Zealand with your grandparents and two older brothers, when you were around four or five years old.  Your parents could not afford to accompany you, although your mother now resides there.  Your father died in around 1996, as a result of illness that arose from alcohol abuse.  
48	You lived with your grandparents until your grandmother died when you were around 11 years of age.  From that time, you did not reside in a secure environment.  You were placed into foster care and resided in boys' homes or with other family members.  When you first moved into foster care, you were sexually abused by an older boy, over a period of two and a half weeks.  You attempted suicide twice when you were 12 years old.
49	You absconded from foster care frequently and were homeless for periods of time, living on the streets.  You spent three months in a youth justice home after you were found in a stolen car.  
50	When you were around 16 years old, you resided with an older brother.  He was very strict and disciplined you physically.  You moved out after a short time, as he seriously assaulted you.  You then resided in hostels.  
51	You attended school in New Zealand.  You were often bullied because of your weight.  You were expelled when you were part way through year 10, as you started to respond to being bullied, by fighting back.  
52	You began to work when you were 17 years old.  Since that time you have undertaken various forms of employment in New Zealand and Australia, including working in forestry, an abattoir, and in a foundry.  Most recently, you worked full-time as a forklift driver, until your arrest in 2020.  
53	You began drinking alcohol when you were 12 years old, after your father's death.  Over time, you developed a significant addiction.  You previously attended an alcohol rehabilitation program when you were 17 years old but left prematurely.  
54	You reported to Ms Cidoni that you have been caught attempting to manufacture alcohol approximately six times, while you have been incarcerated.  
55	You commenced using cannabis regularly from 11 to 15 years of age.  You have also dabbled in the use of methamphetamine and GHB.  
56	You had significant issues with drinking and gambling when you lived in New Zealand.  You moved to Australia in 2011, in an attempt to improve your lifestyle.  You have a daughter from a previous relationship, who still resides in New Zealand.  Your mother and your siblings also reside there.  You have not seen your mother in person since 2016, although you saw her via video link in 2020, prior to your remand.  You have a daughter with your former partner, who is now six years old.  You have not had contact with her since you were incarcerated.
57	At the request of your solicitor, you participated in an assessment with psychologist, Ms Gina Cidoni.  In a report to the Court, dated 29 November 2021, she made the following findings: 
•	Your formative years were traumatic and characterised by instability, bullying, sexual abuse and low academic attainment. 
•	You were exploited while living in the foster care system in New Zealand, from the age of 11 to 16 years.  
•	You previously engaged in anger management counselling when you were around 12 to 13 years old.  You have attempted suicide twice. You have no other formal mental health history.
•	You presented as a depressed and dispirited man.  You are currently prescribed antidepressant medication while in custody.
•	Your persistent depressive disorder and post-traumatic stress disorder (PTSD) developed because of your troubled experiences in childhood.
•	You experience persistent low mood.  You are unhappy with yourself and feel inadequate and alienated from others.  Your coping mechanisms and problem-solving skills are reduced.
•	You have disturbed sleep and night terrors, as a result of your childhood experiences.  You developed a reliance on alcohol in an attempt to cope with these circumstances and alleviate their impact.
•	Alcohol consumption has been a significant problem for you since your adolescence.  This reliance would have delayed processing of your traumatic exposures and further reduced your insight and coping mechanisms, particularly throughout the offending period.
•	You demonstrate deficit of insight relating to your mental health needs and have a reduced appreciation of the connection between your presenting symptomology, including your alcoholism and past life experiences.  It is expected, however, that you would respond to treatment, as you describe in your own words that you “need help”. 
•	Your overall cognitive ability was assessed as in the low-average range.  You presented with a persistent depressive disorder, post-traumatic stress disorder and alcohol use disorder.
•	You fulfil the DSM-5 criteria for a paedophilic disorder.  Your offending occurred against a pre‑pubescent child and you were aroused while viewing the material that you filmed.  You demonstrate “a sustained, focused and intense pattern” of sexual arousal.
•	You are a medium risk of sexual reoffending.  Reoffending is more likely to be against pubescent female children with whom you have a social connection.  You demonstrate an increased potential to produce child exploitation material.
•	You would benefit from participation in a program of intervention concerning your sexually aberrant behaviour.  It would be more appropriate for you to participate in treatment on a one‑to‑one format. You indicated that you are “open to intervention”. You may not be able to access such targeted treatment in a custodial setting, which is also likely to worsen your current presentation.
•	Your overall risk of future sexual violence is moderate. Protective factors include the absence of psychopathy and lack of violence towards the victim. Your alcoholism is a factor that increases your risk.
•	You need assistance for your underlying mental illness to improve your psychosocial functioning.  Intensive treatment for alcoholism is essential and would reduce your risk of recidivism.
•	When discussing your offending, you stated that you experience regret, guilt and remorse for your past deeds.
58	Your counsel has submitted that your childhood and upbringing were characterised by disadvantage, instability, transience, sexual and 
physical abuse.  As a result, you developed an issue with abuse of alcohol from a young age.  
59	The prosecution agrees that your upbringing was very difficult and that you suffered considerable social deprivation as a child and adolescent.  The prosecution also agrees with your counsel's submission that the principles of Bugmy v The Queen are enlivened in your case, and that this is a mitigating factor.  In Ms Cidoni's opinion, your formative years were traumatic and your period of adolescence was underpinned by maladaptive and minimal prosocial experiences.
60	I accept that your dysfunctional childhood reflects a background of considerable social deprivation.  The relevance of such deprivation does not diminish over time.  This is a mitigating factor in your plea.  
61	I also accept that there is a link between your personal development and your history of alcohol abuse, which commenced when you were 12 years of age.  These factors appear to continue to play a part in your lifestyle choices.  It is not submitted on your behalf, however, that abuse of alcohol has a direct link to your offending.  In Ms Cidoni's opinion, alcoholism is a factor that increases your risk of re-offending. 
62	I consider that the principles of Bugmy are applicable to the overall sentencing process here.  I accept that your moral culpability is reduced.  The principles of deterrence, denunciation and just punishment should also be moderated, although they are still relevant and should not be eliminated entirely.  This is 
counterbalanced, however, by the principle of community protection which remains a relevant sentencing consideration and must play a significant role in determining the appropriate sentence.  
63	You have no criminal history in Australia.  Your history in New Zealand outlines a number of appearances in Court between 2001 and 2010, when you were aged between 17 and 25 years.  It appears that your criminal history in New Zealand is reflective of your disadvantaged and chaotic lifestyle at the time.  You have no prior matters relating to sexual offending.
64	You have not had any access to treatment for sexual offending while in custody.  Intervention from an appropriate program is required.  It is expected by Ms Cidoni that you will respond, as you recognise that you require help. 
65	You have spent a significant portion of your time on remand in protective custody and this is expected to continue.  It is submitted on your behalf that 
limbs 5 and 6 of Verdins, being hardship in custody and the risk of deteriorating mental health, are relevant considerations, in light of your diagnosis of PTSD and persistent depressive disorder.  In Ms Cidoni's view, you require assistance for your underlying mental illness.  However, you may not be able to access the recommended treatment while in custody, which is likely to worsen your condition.  She describes your current presentation as “concerning”. 
66	The prosecution does not take issue that you currently suffer from these disorders.  Further, that you are unlikely to serve your sentence in an open prison environment.  In light of your mental health issues, it is conceded that your time in custody will be more difficult than for other prisoners.  
67	I accept that you are more vulnerable to the effects of imprisonment than a person who does not have those mental health issues, particularly as you are likely to serve your sentence in protective custody.  
68	These factors enliven the fifth limb of Verdins.  I also accept that the sixth limb is enlivened and a term of imprisonment may have an adverse impact on your mental health, as you are not likely to have access to the most appropriate treatment.  
69	You are not an Australian citizen and you expect to be deported at the end of your sentence.  There is no certainty as to which country you would be deported.  In all the circumstances, it is unlikely that you will see your daughter if this occurs.  
70	I take into account the loss of opportunity to remain permanently settled in Australia as a result of your offending and the uncertainty of your future when you are released from custody.  I accept that there is a real prospect that you will be deported, either at the conclusion of your sentence or at an earlier date, as determined by the Adult Parole Board.  
71	The prosecution accepts that your precarious situation will weigh heavily on you and is an added burden for you while you are in custody.  It is a relevant consideration in the sentencing process.  
72	You have been in custody for 621 days.  I take into account that measures taken by Corrections to deal with the COVID-19 pandemic have added to your hardship as a prisoner, particularly as this is the first time you have been incarcerated and as you have spent a significant portion of your time on remand in protection.  The prosecution concedes as much.  
73	The emotional impact of being unable to have personal visits has increased the burden of your imprisonment.  I am aware that vocational and educational programs are more limited at the current time, although you have been able to undertake some educational courses.  Unfortunately, you have not been able to access any sex offender treatment programs to assist your rehabilitation.  
74	The duration of the more onerous conditions within a custodial environment is unclear, given the evolving nature of the pandemic.  These hardships justify a sentencing benefit.  
75	Your prospects of rehabilitation present a complex picture.  I consider that your insight into your offending behaviour is compromised, as you struggle to understand the reason for your offending.  However, I accept that you experience regret and remorse for your conduct.  
76	Regrettably, you were unable to resist the temptation to avoid your offending over a period of seven years.  Your successful reintegration into the community requires the involvement of a significant level of treatment and compliance by you.  It is in your own interest to address your rehabilitation when you have access to the appropriate programs while in custody. You will be the subject of supervisory orders if you are released on parole.  There is no dispute that you are to be declared as registrable for life, on the 
Sex Offender’s Register.  
77	I consider that your future prospects are likely to be guarded.  This will remain so unless and until you are able to comply with long-term treatment and change the direction of your life. 
78	A term of imprisonment for your offending is the only appropriate disposition.  In that case, you are to be sentenced on Charges 3, 4 and 9 as a serious sexual offender.  While the principle of community protection is a relevant consideration for all charges, it becomes the principal purpose for which the sentences on these charges are imposed.  This is a factor that must be given weight and results in a sentence that is longer than it would otherwise be. 
79	I take into account the maximum penalty for these offences and current sentencing practices.  I have considered the principle of totality, as well as 
s 16B of the Crimes Act 1914 (Cth), when imposing an appropriate sentence for both the State and Federal offences.  
80	It is accepted that in respect of the State offences, the only sentence reasonably open is a term of imprisonment with a non-parole period.  In respect of the Federal offences, it is submitted on your behalf that the Court should impose a sentence with a recognisance release order.  
81	Imposing terms of imprisonment for an offender charged with a number of State and Federal offences, on a joint indictment, is potentially complex.  I have carefully considered s 19 of the Crimes Act 1914 (Cth) as well as the sentencing principles outlined in DPP (Cth) & DPP v Swingler.  I am unable to backdate a Federal sentence; that is, to start it from a date earlier than its imposition. 
82	I accept that Charge 4 has some overlap with the particulars of 
sexual offending outlined in Charge 3, given that you filmed some of your persistent sexual abuse of the victim.  When imposing the sentence, I have considered that the circumstances of your overall offending occurred throughout the same period of time.  I have also taken into account that the Federal offences were committed within the time frame of the State offences, with some form of explanatory connection.  There is also an overlap between some of the Federal offences.  
83	The overall criminality of the State offending and the fact that you will be sentenced as a serious sexual offender for offences, including Charge 3, has an impact on the length of sentence.  
84	It is not possible to achieve cumulation of any part of the Federal sentence on the head sentence for the State offences, as the Federal sentence must commence no later than the end of the State non-parole period, whether you are released on parole or required to serve the entire sentence. 
85	I will impose a partially cumulative Federal sentence on the State 
non-parole period.  The term of the Federal sentence will be fully covered by the State sentence.  In those circumstances, I will exercise my discretion not to impose a recognisance release order for the Federal offending.  I have slightly moderated the non-parole period for the State sentences, as I am also sentencing for the Federal offences. 
86	Having regard to the principle of totality, I have moderated the orders for cumulation that I would have otherwise made.  
87	I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct.  
88	Balancing these factors as best I can, I sentence you as follows:
State offences

Charge	Offence	Sentence	Cumulation	
1	Sexual penetration of a child under the age of 16 years	4 years’ imprisonment	1 year	
2	Indecent act with a child under 16 years	1 year and 6 months’ imprisonment	4 months	
3	Persistent sexual abuse of a child under 16 years	9 years and 8 months’ imprisonment	Base 	
4	Involve a child in the production of child abuse material	2 years’ imprisonment	6 months	
9	Possess child abuse material	2 years’ imprisonment	6 months	
10	Destruction of evidence 	9 months’ imprisonment	Nil	
12	Non-prohibited person in possession of an unregistered Category A longarm	8 months’ imprisonment	Nil	
Summary charge 31	Contravene bail condition	1 month imprisonment	Nil	
Summary charge 133	Possess cartridge ammunition 	$350 fine, with conviction	- 	
Total Effective Sentence:	12 years’ imprisonment	
Non-Parole Period: 	7 years and 6 months	
Pre-Sentence Detention:	621 days	
Other orders: 
•	You are sentenced as a serious sexual offender on charges 3, 4 and 9. 
•	You are registrable for life pursuant to the Sex Offenders Registration Act 2004 (Vic). 
•	Applications for forfeiture and disposal granted (unopposed). 
•	The $350 fine is to be referred to Fines Victoria and I will not grant a stay for the payment of that fine. 	

Federal offences

Charge	Offence	Sentence	Cumulation	
5	Use carriage service to access child pornography material	1 year and 4 months’ imprisonment	Nil	
6	Use carriage service to make child pornography material available	2 years’ imprisonment	Nil	
7	Use carriage service to cause child pornography material to be transmitted to himself	2 years and 3 months’ imprisonment	Nil	
8	Use carriage service to solicit child pornography	1 year imprisonment 	Nil	
11	Fail to comply with order to provide information to police	6 months’ imprisonment	Nil	
Total Effective Sentence:	2 years and 3 months’ imprisonment	
Commencement: 	To commence 1 year and 3 months prior to the expiration of the state non-parole period 	
89	Overall, my intention is to sentence you to a term of imprisonment of 12 years.  
90	You will be eligible for release on parole after 8 years and 6 months.  
91	The applications for forfeiture and disposal are granted and I note that they were not opposed.  
92	Pursuant to s 6AAA, had the matter not proceeded as a plea of guilty, the sentence I would have imposed is a total effective sentence of 15 years, with a non-parole period of 10 years and 9 months. 
93	Mr Devlin and Ms Kretzenbacher, I am going to leave the Bench in a moment.  If you would like to go through the sentences again with 
Ms George, I am happy for you to do that on link.  Ms Kretzenbacher, I will also give you an opportunity to speak with your client before the link to the prison ends.  I think we have got the link until half past 1 pm.  Are there any further orders sought, Mr Devlin?
94	MR DEVLIN:  No, Your Honour.  I am just doing the mathematics but there is no further orders sought, Your Honour.  Your Honour's covered it.
95	HER HONOUR:  All right, thanks.  Ms Kretzenbacher, is there anything further that you want to raise?
96	MS KRETZENBACHER:  No, thank you, Your Honour.  
97	HER HONOUR:  All right, I will just leave the Bench so that you can have a discussion between yourselves and my associate, Ms George.  If you need me to come back on, just let me know.  Otherwise I will give you a chance just to have a quick word to your client before the link is cut.  Thank you. 
98	MS KRETZENBACHER:  As Your Honour pleases.
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