CDPP v Weerawardane [2026] VCC 17

1. I turn now to the matters raised at your plea which I am required to take into account in sentencing you.
2. I begin with your plea of guilty and co-operation with authorities. At the execution of the search warrant, you provided investigators with the password to your iPhone upon compulsion. You gave a 'no comment' record of interview. Consequently, there is no evidence of co-operation with the authorities at the outset.
3. You pleaded guilty on 3 March 2025 which is a plea at the earliest opportunity before the commencement of any committal proceedings. It is the case that your plea was made in the face of a strong prosecution case, but nevertheless it shows that you have accepted criminal responsibility for your actions, and in conjunction with your statements to psychologists, which are indicative of some insight into the impact on your victims, I find that you are remorseful and have shown contrition for your behaviour. Your plea also of course has significant utilitarian value, obviating the need for a trial.
4. Turning to your personal circumstances, your character and antecedents.
5. You were born in August 1971 so you are presently 54 years old.
6. You have no criminal history.
7. You were born in Sri Lanka. You are an only child. You report a stable and happy childhood. Your family migrated to Australia when you were 11. You became an Australian citizen in 1989.
8. You completed high school and went on to complete a certificate in Hotel Management from the Box Hill TAFE. You worked at the Hilton hotel for many years. In around 2015 you qualified as a Disability Support Worker and worked in this role until your employment was terminated in September 2024 as a result of this offending. You have worked thereafter doing some gardening and landscaping.
9. You were married in 2004 and have two adult sons with whom you have good relationships. You and your wife divorced. You had a second long-term relationship, and you have a third son who is now six years old. This relationship ended amicably, and you regularly see your son. Your former partner provided a reference tendered at your plea. She describes you as a decent and trustworthy person and a fantastic father to your son. There were also references tendered from colleagues and friends who describe your offending as out of character.
10. You are presently single and living with your mother. Your father is deceased.
11. A medical report was tendered from cardiologist Dr Kuhendra Balakrishnan. You suffer from hypertrophic cardiomyopathy which is a thickening of the heart muscles which is being treated with medication.
12. You have never abused drugs, alcohol or prescription medication.
13. You began treatment with Kim Dowse, psychologist in September 2024.You have had 14 sessions with Ms Dowse, who found you to be remorseful. Ms Dowse will continue to treat you in the future.
14. You also saw David Ball, forensic psychologist on 9 January 2026. Dr Ball also had access to Ms Dowse's counselling report and to the Summary of Prosecution Opening.
15. Dr Ball found no evidence of cognitive impairment and assessed you to be of average intelligence.
16. You told Dr Ball you were addicted to pornography but now you had stopped using pornography of any kind. You denied being sexually attracted to children and teenagers. You said you purchased a pornography package and the child abuse material was in it. You expressed remorse and told Dr Ball that through your counselling with Ms Dowse you had come to understand that the children involved were often targeted because of their poverty and that your consumption of the material 'feeds the producers and organised crime and gives the victims no chance to escape'.
17. Dr Ball concluded that you did not meet the diagnostic criteria for any mental illness, personality disorder, substance use disorder or mood disorder, nor the diagnostic criteria for paedophilic disorder.

1. The New South Wales Court of Criminal Appeal in the case of R v De Leeuw[2] summarised the facts that have been consistently applied in determining the objective gravity of the possession of child abuse material:

(a) First, the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted.

(b) Secondly, the number of items possessed.

(c) Thirdly, whether the material is for the purpose of sale or further distribution.

(d) Fourthly, whether the offender will profit from the offence.

(e) Fifthly, the number of children depicted and therefore victimised.

(f) Sixthly, the length of time that the material was possessed.

1. Applying these criteria you possessed a not insubstantial amount of child abuse material, including videos which ran over several hours, much of which was of the most depraved kind featuring very young children subjected to penetrative sex acts, some of which involved bestiality and sadism. It is impossible to know how many children were victimised in the material you possessed, but what is certain is that your consumption of this material fuelled the market for the production of this kind of material which involves the victimisation of countless defenceless children. You possessed the material for your own sexual gratification and did not seek to distribute or profit from the material. The charge concerns a single day only and you will be sentenced accordingly. However it is stated in the opening, and this is not disputed, that police were alerted to you accessing child abuse material as early as February 2024. Weighing up all these factors I consider that your offending is a mid-range example of the offence.
2. Your moral culpability is high.

1. General deterrence and denunciation are at the forefront of the sentencing exercise in cases involving sexual exploitation of children. The courts have made it clear that child sex offenders must receive sentences that reflect the exceptionally serious nature of their crimes and that the courts must impose sentences to deter those who would participate in the abhorrent trade in child sexual abuse material and child sexual exploitation.
2. I also accept the prosecution submission that specific deterrence is engaged in sentencing you given the highly depraved nature of the child abuse material you possessed.
3. You have engaged in counselling and your statements to Dr Ball indicate that you have gained insight into the wrongfulness of your conduct. You have no criminal history and you come before the court for the first time as a middle-aged man with a good work history and no history of anti-social behaviour. I assess your prospects of rehabilitation as good.
4. I was referred to comparable cases by the prosecution which have been of some assistance in sentencing you.[3]
5. Section 17A of the Crimes Act (Cth)[4] imposes an obligation on the court to only pass a sentence of imprisonment after having considered all other available sentences and deciding that none of those alternative sentences are appropriate in all the circumstances of the case.
6. There was no dispute that the only sentence open to me was a term of imprisonment. The issue was whether you have demonstrated exceptional circumstances and are eligible for immediate release under a recognisance order.
7. Sections 20(1)(b)(ii) and (iii) of the Act[5] 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 that there are 'exceptional circumstances'.
8. What constitutes exceptional circumstances for this purpose is not defined in the legislation. Case law, however, provides some assistance as to what may amount to exceptional circumstances. In considering a like provision within the Penalties and Sentences Act 1992 (Qld),[6] the Queensland Court of Appeal observed that:

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.[7]

9. In R v TBE[8] the Queensland Court of Appeal considered the exceptional circumstances requirement of s 20 (1) (b) (iii) of the Crimes Act and concluded;

Whether exceptional circumstances are established on the facts of a particular case involves an assessment which call for a value judgement as part of the instinctive synthesis involved in exercising the sentencing discretion. When considering whether exceptional circumstances exist, the starting point involves identifying the criminality of the conduct revealed by the facts and circumstances of the offending. As was observed in R v Bredal[9] 'the greater the objective seriousness of an offence the more difficult it will be to establish the case is relevantly exceptional'.[10]

10. The Court went on to observed that the fact an offender has pleaded guilty, has no prior criminal history, is remorseful and unlikely to reoffend are simply circumstances of mitigation and some or all of them appear in most, if not all cases of sexual offences against children.
11. The defence, at least in written submissions, submitted that your early plea of guilty, in combination with your voluntary engagement with offence specific treatment, your good prospects of rehabilitation, your lack of a prior criminal history and Dr Ball's opinion that you do not meet the diagnosis of paedophilia amount to exceptional circumstances and that you should be immediately released on a recognisance order. At your plea hearing I raised with Mr Sheales, who appeared on your behalf, my preliminary view was that this combination of factors did not amount to exceptional circumstances. Mr Sheales' submission on disposition focussed on the alternative of a short stint of imprisonment involving actual custody.
12. In accordance with the approach adopted in TBE[11] and Bredal[12] starting with the objective seriousness which I have assessed as midrange given in particular the depravity of much of the material you had, I maintain my preliminary view that the combination of matters relied upon do not amount to exceptional circumstances but remain of course important mitigatory considerations relevant to sentence.

1. The sentence I impose must unequivocally denounce your conduct and give effect to the law's obligation to protect children from exploitation and abuse. I must ensure that you are adequately punished for your offending. It is the duty of the court to do what it can to end the pernicious trade of child sexual exploitation involving as it so often does children who are unprotected and living in impoverished circumstances. The Court performs this duty be sending a clear message to those who commit such crimes and such morally depraved conduct that they will be punished.
2. Taking into account all the matters I am required to I intend to sentence you as follows. If you could stand now please for me, Mr Weerawardane.

1. On Charge 1 you are convicted and sentenced to 2 years' imprisonment.
2. I direct that you serve 6 months' imprisonment before your release on a recognisance order in the amount of $1,000 to be of good behaviour for two years.
3. There is no pre-sentence detention.
4. I make the forfeiture order.
5. You are a registered sex offender for 8 years.
6. But for your plea of guilty I would have sentenced you to 3 years' imprisonment with 2 years to serve before your release on a recognisance order.

[1] Criminal Code 1995 (Cth) s 474.22A(1).

[2] R v De Leeuw [2015] NSWCC 183 at [72].

[3] Phibbs v R [2023] VSCA 123; Mertell v R [2022] ACTCA 69; Henderson v The King [2024] ACTCA 3; R v Cardwell [2021] QCA 112.

[4] Crimes Act 1914 (Cth) s 17A.

[5] Ibid s 20(1)(b)(ii) and (iii).

[6] Penalties and Sentences Act 1992 (Qld).

[7] R v Kelly [1999] UKHL 4; [2000] 1 QB 198, 208 (Lord Bingham of Cornhill CJ), quoted in R v Tootell; Ex parte A-G (Qld) [2012] QCA 273, [18] (Holmes and Fraser JJA and Henry J).

[8] R v TBE [2024] QCA 204.

[9] R v Bredal [2024] NSWCCA 75 at [63].

[11] R v TBE [2024] QCA 204.

[12] R v Bredal [2024] NSWCCA 75.