CDPP v McNamara [2025] VCC 1936

Charge 2: Use a carriage service to transmit child abuse material contrary to s474.22(1) of the Code

Charge 3: Use a carriage service to access child abuse material contrary to s474.22(1) of the Code

Charge 4: Possess or control child abuse material obtained or accessed using a carriage service, contrary to s474.22A(1) of the Code.

1. Charges 1 carries a maximum penalty of five years' imprisonment.
2. Charges 2, 3 and 4 each carry a maximum penalty of 15 years' imprisonment.

1. The agreed facts of your offending are set out in the Summary of Prosecution Opening for Plea (Exhibit A).

Charge 1 - Use carriage service to cause offence

1. On 22 May 2024, you spoke to an unidentified user (User A) in a 'secret chat' on Telegram (See Annexure C) during which you discussed you having raped 'a cute little boy'. User A said he could 'listen to every story you have for hours', and you called him a 'good boy'. A depraved and highly offensive conversation followed between you and User A whereby you both discussed in detail what you want to do to the boy. This included you telling User A what you did to the 'cute little boy', and that you 'would've love[d] to take [the boy] in a room for ever to rape... him'. It is not alleged that any of the conduct referred to in the chat occurred.

1. Between 27 and 28 May 2024, you spoke to a user 'faggotboi', an account controlled by your partner Mitchell Seibel, in a 'secret chat' on Telegram. The offending the subject of this charge is confined to a message you sent on 27 May 2024 when you wrote 'Hey' and then sent your partner one video, which ran for 51 seconds depicting a boy aged about eight, lying on his back on a bed. A man is 'positioned over the child's face' and causing the child to engage in oral sexual intercourse.
2. Two minutes later, a 'system message' was sent to you notifying you that your partner 'took a screenshot' of the chat.

1. On 6 June 2024, two 'system messages' were sent after you took two screenshots - about 25 seconds apart - of a message sent to you by your partner on 28 May 2024 which contained 16 images, 10 of which were child abuse material depicting children between the ages of about three and eight being sexually penetrated by adult men. The contents of the screenshots are unknown however as they were not identified on the mobile.

Charge 4 - Possess or control child abuse material

1. Your mobile phone was found to contain 157 child abuse material files, including 131 images and 26 videos.
2. Of these, 107 files were 'Category 1' - depicting real pre-pubescent children under 13 years. (90 images and 17 video files). 50 files were categorised as 'Category 2 - depicting other illegal content, child under 18 years old' (41 images and 9 video files).
3. All the child abuse material found on your mobile device was unique. The files were found in a 'hidden album' on your mobile, a password protected album in your photo library.
4. The material depicted boys as young as one, up to 16 years of age, engaged in sexual acts with men and other boys. Some of the material was particularly depraved and violent. Some of the files depicted boys sexually posing or masturbating.

1. A search warrant was executed at your home on 3 July 2024, and your mobile telephone was seized. Police subsequently located child abuse material on the device which was also logged into two social medica accounts on which child abuse material was located.

a. you denied possessing or accessing child abuse material.

1. When asked about a video police found in the 'hidden album' on your mobile which depicted a 10-year-old boy engaged in sexual activity, you said you 'wouldn't know' anything about it or how it ended up in your hidden album.

c. You said you had previously seen 'child pornography' online, but only accidentally. You said when 'something comes up [online] ... and it looks not right ... I basically ... block it or get rid of it.'

1. You screen recorded adult pornography you found online which you enjoyed, and then saved that to your hidden album.
2. When viewing adult pornography online, you would intentionally search for material depicting people with pubic hair, which you believed to be a sign the person was an adult.
   1. You said you accessed your Telegram account weekly, even if you simply needed to delete 'scam' messages you had received.
3. When asked if your partner had ever sent child abuse material to you, you answered 'nuh', and then said if your partner did send material to you, 'he would get in very big trouble. I don't put up with it.'
4. You said you 'honestly ... [could not] recall' anything about the Telegram chat with 'faggotboi' (your partner's account) on 27 May 2024, which police found on your mobile.
5. You denied taking screenshots of that chat on 6 June 2024. However, you told police you could remember hearing your mobile in your pocket taking screenshots on one occasion, saying the buttons 'must have squeezed down in my pants.'
6. You also remembered receiving a notification from Telegram that your partner was taking screenshots of the chat, but you ignored the notification.

1. You grew up in Melbourne. Your parents separated in 2001. Your father died in 2024 at the age of 71 from a cardiac arrest. Your mother is now 61 and you have two sisters, aged 41 and 37.
2. You told Mr Warren Simmons psychologist that your mother was the victim of sexual assault as a child and had a bipolar affective disorder. As a result, your father experienced quite a degree of physical abuse, and you were physically disciplined by her until aged 16. Your childhood was otherwise without problems, and you got along generally well with your siblings, and you always had what you needed.
3. At 16 you were diagnosed with Duchenne's dystrophy, a form of muscular dystrophy which meant you would not survive beyond adolescence. You could not engage in sports and did not have much activity in your life. This initial diagnosis was later revised to one of Beker's dystrophy which meant your life expectancy would be far longer than anticipated.
4. You attended Kew East Primary school, where you had a teacher's aide from the Yooralla Society to assist you with physical difficulties. You reported struggling academically at school and in 2003 you were diagnosed with autism. You attended school in Queensland from 1998 until 2004, as your mother wanted a change and to spend time with her family. You reported positive relationships with your peers and teachers.
5. You attended Cowan High School in Queensland where you experienced bullying from age 14 because you were in a wheelchair which your mother insisted you use even though you could move around. After struggling academically, in Year 7 you were sent to Currimundi Special School which focussed on teaching life skills, and you stayed there for two or three years until 2004. After this, you returned to Melbourne to live with your father, and you worked with him rebuilding race cars until 2009.
6. You have received Disability Support Pension and have not worked since 2010. You are currently supported by NDIS.
7. You were introduced to alcohol by your father when you were 21, after which you drank beer every day for a 12-month period. You ceased drinking alcohol when your grandfather told you to. You do not have substance abuse issues at present. You identified as gay when you were 19 but did not disclose your sexuality until 2005.
8. You have had three romantic relationships. For the past two years, you have been in a relationship with Mitchell Seibel, your personal carer who is younger than you. You met online and he then moved to Melbourne to live with you. You said your relationship is pretty good but there were initial issues with Mitchell adjusting to your disability. You report that you have been sexually inactive for two years.
9. I have had regard to the written reference dated 26 November 2025 provided by Mr Seibel and to oral evidence he gave in court. Mr Siebel testified that he is your primary carer, but you also have a day carer and a night carer who attend on Mondays, Wednesdays and Fridays. He said:
   • You have a form of muscular dystrophy
   • Your physical difficulties have worsened over time, and you can no longer lift your arm over your head or anywhere near it. You have trouble lifting a mug
   • You use a wheelchair to get around and have no movement in your legs. Your immobility means there is always a potential for infection. You use maxi taxis for transport.
   • You need to be put to bed at night and you cannot shower yourself or attend to your own toileting.
   • You need your food to be cut up into little pieces unless it is finger food.
   • You are not self-sufficient in any way.
   • Your mental health is poor and you sometimes express that you feel you have no future and no reason to live.
   • You have autism which means you are often anxious, and Mr Siebel must speak on your behalf. You have poor social skills, you do not understand all cues and your speech sometimes gets confused.

1. The principles and considerations in sentencing for offending involving child abuse are well settled. I have set them out in my sentencing remarks, but I will not repeat them here:[1]
2. I have also had regard to the matters applicable in sentencing for Commonwealth offences including s16A(2) which sets out a non-exhaustive list of factors that must be taken into account as far as these are relevant and known to the Court. I have had regard to the following factors set out in s16A(2):

16A(2)(a) Nature and circumstances of the offending

1. Your offending is clearly very serious. You have pleaded guilty to four charges involving three different types of child abuse offending namely, transmitting, accessing and possessing child abuse material and to one charge of using a carriage service to cause offence.
2. You possessed 157 child abuse material files, including 26 videos and 131 images and none were duplicates. This material was secreted in a hidden folder on your mobile which was clearly designed to conceal the material.
3. Whilst numerically the number of items you possessed is towards the low end compared to other cases involving much larger collections, it must be stressed that quantity is a secondary indicator of the seriousness of offending. The primary indicator is the type of material and its degree of depravity[2] and the material you accessed and possessed was highly depraved and abhorrent. It depicted many different actual children, with most being prepubescent boys under 13 years old engaged in sexual acts with men or other boys, masturbating themselves or posing sexually. One video was particularly cruel and violent depicting the rape of a child aged around one.
4. Many real children were depicted being sexually abused in the material and each of those children is presumed to have suffered harm. These children were harmed to fuel a market for child abuse material - a market that individuals like yourself help to maintain with your desire for material.
5. Charge 2 involved you sending a child abuse material video to your partner in a 'secret chat' on Telegram which is an encrypted messaging application. The video ran for 51 seconds. As the prosecution submitted, the use of an encrypted application and a secret chat to send the video shows some degree of planning, and a clear knowledge of the wrongfulness of your actions. By sending material to another you became an active participant in the child abuse market. Obviously, material that is transmitted to others may potentially be distributed even further thereby widening the market.
6. In terms of Charge 3, the day after you transmitted the child abuse video to your partner on 27 May, he sent you 10 child abuse material images, and six images of persons of indeterminate age. Ten days later, on 6 June you took two screenshots of that chat, but the contents of the screenshots are not known. By taking the screenshots of the contents, you accessed up to 10 child abuse material images which depicted boys between about three and eight years of age being sexually penetrated by adult men.
7. The offending on Charge 1, use carriage service to cause offence also occurred via the transmission of messages to User A on Telegram in a 'secret chat'. The messages in the chat were cruel and sadistic, describing sexual fantasies relating to kidnapping, rape, strangulation, beating and murdering people.
8. I accept these communications involved fantasies and you were never going to do the things you spoke of. I also accept that you did not profit by selling child abuse material which would aggravate your offending.

1. The prosecution accepted that you pleaded guilty at the first reasonable opportunity, namely at the first committal mention. Your plea warrants a clear reduction in the sentence to be imposed to reflect its utilitarian value in saving the community the time and expense of a trial and to reflect its demonstration of acceptance of responsibility, willingness to facilitate the course of justice and remorse.
2. In terms of remorse I do accept that you have now expressed some remorse in addition to your plea in acknowledging the material was 'horrible', and expressing some empathy for the child victims depicted, but I do note that initially you completely denied the offending when interviewed by police.

1. Specific deterrence, denunciation, punishment, and protection of the community are very important considerations in sentencing for offending involving child abuse material.[3]

1. General deterrence is the primary sentencing consideration given the prevalence and ready availability of this material and the need to protect children from abuse.[4] Where general deterrence is primary, personal mitigatory factors such as prior good character, age, prospects of rehabilitation et cetera must therefore be given less weight than might otherwise be given.[5]

16A(2)(m) Character, antecedents, age, means and physical or mental condition

1. You are 38 years old. You have no prior convictions of any type and no outstanding matters, noting again however that this factor is given less weight in sentencing for offending of this nature. You do not have any issues with drugs or alcohol.
2. In terms of your mental health, you have no mental disorders or any intellectual disability and accordingly no reliance was placed on any of the limbs of Verdins. Mr Simmons did not explore the reasons why you engaged with child abuse material in his report apart from noting you were engaging in fantasy sharing with no intention to act out those fantasies.
3. You have Beker's Muscular Dystrophy which is an incurable degenerative muscle disease that has a reduced life expectancy. You require significant daily care as you are effectively immobile. You are considerably overweight and are using Ozempic to lose weight. You develop pressure sores because of your weight and need to be lifted from your bed to your wheelchair with a hoist. You have severe and progressive sleep apnoea which has worsened since 2020, you use a CPAP machine which was your father's as you could not secure NDIS funding for your own. You have autism.
4. I accept these diagnoses based on the letter from your GP Dr Crowe, your physical presentation in court, the evidence from Mr Siebel and the fact of your receipt of NDIS and DSP. I accept there are no specialist reports as to your condition because there is nothing that can be done to treat or cure muscle deterioration.
5. I accept that you would find imprisonment far more onerous than another prisoner given your physical conditions.[6] Reliance was placed on Mr Simmons' report to the effect that you would need significant support in custody and there is a risk of health complications from confinement.

16A(2AAA) Regard to the objective of rehabilitation

1. I have had regard to s16A(2AAA) of the Crimes Act which provides when sentencing for a Commonwealth child sex offence, in addition to any other matters, I must have regard to the objective of rehabilitating you and I do so. In your case, Mr Simmons concluded that no mental health interventions were required in your case as no mental health condition contributed to your offending. However, he did not address or deal with the possible reasons underlying your engagement specifically with child abuse material, for instance, any sexual distortions you may have surrounding children and whether these underpinned your offending. I intend to impose a mandatory condition that you undertake any treatment and rehabilitation programs, which may include the Sex Offender Treatment Program, if these are deemed necessary.

1. Mr Simmons opined that you present with a low risk of engaging in further offending relating to child abuse material. You have no prior convictions, and you have expressed a degree of remorse for your offending. You did however engage in three different types of child abuse offending, your offending was not on one occasion only, and it is not clear at all what led you to engage with the material in the first place. It is also the case that whilst Mr Siebel is a loving partner and carer, he too has been convicted of very serious child abuse material offences and is currently subject to a recognisance release order and on the Sex Offender Registry. Your rehabilitation it seems to me must also be contingent on his, given that you both offended by sharing material with each other and because he is proximate to you, has influence over you and has been assessed as having a moderate to high risk of reoffending and with symptoms consistent with a paedophilic disorder and deviant sexual interests. In my view though, your prospects of rehabilitation are still good especially as your convictions have had a salutary effect on you and you will be subject to conditions.

1. I must have regard to the sentence imposed on your partner Mitchell Siebel who was sentenced on 30 May 2025 to two years and nine months' imprisonment but was released forthwith on a recognisance release order to be of good behaviour for two years. He was also placed on a Community Correction Order for State offending with significant treatment and other conditions attached. Mr Siebel's offending was a lot more serious than yours and whilst he relied on significant mitigating factors, there is no basis on which I could do anything other than impose a lesser sentence on you.

1. Section 19(5) of the Act provides a presumption in favour of full cumulation between sentences imposed for Commonwealth child sex offences although s19(6) permits the court not to impose full cumulation if, in all the circumstances, this will still result in appropriately severe sentences. I will not impose complete cumulation between the charges, nor did the prosecution suggest I should do so, as to do so would breach the principle of totality and I am able to construct a sentence of appropriate severity without needing to impose wholly cumulative sentences.
2. I do intend to impose a modest degree of cumulation between the sentences imposed to reflect the different and discrete types of offending each having different elements and directed at different vices. I do so mindful of the principles of totality and proportionality and the need to avoid imposing a crushing sentence.

1. I was provided with a table of intermediate appellate sentences for offences involving child abuse material. All sentences involved the imposition of a recognisance release order as the total effective sentences were all of three years or less. These sentences are of assistance in illustrating the relevant sentencing principles, however as frequently occurs, it is very difficult to find cases of sufficient factual similarity to be of any substantive assistance and so each case must ultimately be decided on its own facts and circumstances.

1. There does not appear to be any dispute between the parties that your offending warrants the imposition of a term of imprisonment. Further, both parties submitted, and I accept, that because the sentence I would impose is unlikely to exceed three years' imprisonment based on comparative sentences, you would be subject to a recognisance release order and not a non-parole period.[7]
2. Your counsel noted sub-section 20(1)(b)(ii) of the Act which provides that when sentencing a person for an offence which is a Commonwealth child sex offence and the total sentence does not exceed three years there is a presumption in favour of an actual period of the sentence of imprisonment being served prior to release on a recognisance unless there are exceptional circumstances that justify the offender being released immediately. In other words, a person may only be released immediately on a recognisance if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances (s20(1)(b)(iii)).
3. Your counsel relied on several factors which, in combination, were said to amount to exceptional circumstances such that you be released forthwith with no requirement to serve a custodial component of the term of imprisonment. These included your:

b) Utilitarian value of your plea, your acceptance of responsibility and remorse

d) Significant support within the community, particularly from your partner

g) Difficulties at school where you were bullied from the age of 14 due to being in a wheelchair

h) Serious physical ill health including BMD, a constant requirement for care, and a reduced life expectancy, obesity and constant pressure sores

i) The more onerous nature of imprisonment given your physical condition

1. The Crown ultimately accepted that you had demonstrated exceptional circumstances.

1. What constitutes exceptional circumstances is not defined in the Act. I have had regard though to one of the many judicial determinations of the meaning including more recently, in Bredal v R[8] where the court provided some guidance as to the threshold requirement noting that a) it is a matter for a court to determine whether the circumstances of a particular case are, or are not, exceptional, but this is not a licence to ignore the statutory threshold; A combination of factors may amount to exceptional circumstances; Consideration of whether exceptional circumstances have been established involves an assessment of the factors relevant in determining a sentence more generally, but 'The purposes of sentencing will remain at the forefront' and '...the greater the objective seriousness of an offence, the more difficult it will be to establish the existence of exceptional circumstances'.

1. I am satisfied pursuant to s17A that when the objective seriousness of your offending and the need for general deterrence, just punishment and denunciation are balanced with the mitigating factors relied upon, that no other sentence is appropriate in your case than a sentence of imprisonment.
2. In terms of whether exceptional circumstances have been established, I accept that in your case the combination of matters relied upon do amount to circumstances that are exceptional.
3. I will proceed to sentence.

1. On Charge 1, you are convicted and sentenced to four month's imprisonment. I direct that the sentence commences today, 18 December 2025.
2. On Charge 2, you are convicted and sentenced to six months' imprisonment. I direct that the sentence commences two months after the commencement of the sentence imposed on Charge 1.
3. On Charge 3, you are convicted and sentenced to three months' imprisonment. I direct that the sentence commences one month after the commencement of the sentence imposed on Charge 2.
4. On Charge 4, you are convicted and sentenced to 12 months' imprisonment. I direct that the sentence commences at the expiration of the sentence imposed on Charge 3.
5. That amounts to a total effective head sentence of 18 months' imprisonment.
6. I order that you be released immediately upon giving recognisance pursuant to s20(1)(b)(iii) of the Act in the sum of $500 to be of good behaviour for 18 months.
7. Pursuant to s20(1B) of the Act, you are also required to comply with the following mandatory conditions for a period of 18 months:

a) You are to be under the supervision of a probation officer

b) You are to obey all reasonable directions of the probation officer

c) You are not to travel interstate or overseas without the written permission of the probation officer

d) You are to undertake treatment and rehabilitation programs as directed by the probation officer if deemed necessary.

1. Charges 2, 3 and 4 are class 2 offences under the Sex Offenders Registration Act 2004 (Vic) and accordingly you are declared a registerable offender as defined under s6(1) of that Act and are required to comply with reporting obligations under the Act for life.
2. Pursuant to s6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty, I would have imposed a sentence of 22 months imprisonment with your release on a recognisance release order after serving three months of the term of imprisonment.
3. Thank you very much Ms Randazzo for your assistance, it was very helpful. And as always, Mr Cullen, for yours as well.

[1] DPP (Cth) v Garside [2016] VSCA 74; R v Howe [2017] QCA 7; DPP (Cth) v Zarb [2014] VSCA 347; R v De Leeuw [2015] NSWCCA 183 at [116]; DPP (Cth) v Watson [2016] VSCA 73 at [47].

[2] DPP v Latham [2009] TASSC 101, [35].

[3] Walker v The Queen [2008] NTCCA 7 at [34]; R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 at [65].

[4] DPP (Cth) v Garside [2016] VSCA 74; R v De Leeuw [2015] NSWCCA 183 at [116].

[5] Heathcote (a pseudonym) v The Queen [2014] VSCA 35 [at 35]; Gajjar v R [2008] VSCA 268; (2008) 192 A Crim R 76.

[6] R v Van Boxtel (2005) 11 VR 259, [29] - [34].

[7] s 19AC(1) Crimes Act 1914 (Cth)

[8] [2024] NSWCCA 75, [61], [63] - [64] per Dhanji, J.