Cullinan-Smayle v The King [2025] VSCA 109 | Case summary | Zoe

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Cullinan-Smayle v The King [2025] VSCA 109

[2025] VSCA 109

Court of Appeal (Vic)|2025-05-22|Before: Mr JJ, Orr JA, Kaye JA

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General information, not legal advice.

At a glance

Source facts

Court

Court of Appeal (Vic)

Decision date

2025-05-22

Before

Mr JJ, Orr JA, Kaye JA

Source

Original judgment source is linked above.

Judgment (252 paragraphs)

[1]

The applicant pleaded guilty in the County Court to 23 charges relating to the online sexual exploitation of children, which consisted of 17 charges of using a carriage service to transmit child abuse material (s 474.22(1) Criminal Code (Cth)) ('Criminal Code');[1] two charges of using a carriage service to cause child abuse material to be transmitted to himself (s 474.22(1) Criminal Code); one charge of using a carriage service to cause child pornography material to be transmitted to himself (s 474.19(1) Criminal Code);[2] two charges of using a carriage service to procure a child under the age of 16 years for sexual activity (s 474.26(1) Criminal Code); and one charge of possessing or controlling child abuse material obtained or accessed by using a carriage service (s 474.22A(1) Criminal Code). In addition, pursuant to s 16BA of the Crimes Act 1914 (Cth) ('Commonwealth Crimes Act'), the applicant consented to the Court taking into account on sentence five further offences to which he admitted his guilt ('schedule offences').[3] The schedule offences consisted of three further instances of using a carriage service to transmit child abuse material to himself (s 474.22(1) Criminal Code) and two instances of using a carriage service to transmit indecent communications to a person under 16 years of age (s 474.27A(1) Criminal Code).
Following a plea presented on his behalf, the applicant was sentenced, on 31 March 2023, to a total effective term of 10 years' imprisonment, with a non-parole period of 6 years and 7 months. That sentence was comprised as follows:

[103]

In summary, the applicant's offending was committed over three periods of time, namely, between late 2017 and late 2019 (charges 1 and 2), between April 2020 and June 2020 (charges 3 and 4), and in May 2021 (charges 5 to 23). The offending involved 18 identified child victims, and a number of other unidentified children. Nine of the charges against the applicant are rolled-up charges (charges 2, 5, 6, 7, 8, 9, 13, 16 and 23).
The applicant's offending involved: the use of social media to procure two children for sexual activity; requesting, and, in response, receiving self-produced child abuse material from those two children; sending child abuse material to one of those child victims; exchanging child abuse material with Heels, which consisted of a large amount of images, videos and written material; and possessing or controlling 3,019 images and videos of child abuse material across two electronic devices.
The offending by the applicant, and by Heels, was set out in detail in a comprehensive prosecution opening on the hearing of the plea. In her reasons for sentence,[6] the judge summarised the offending and, in doing so, understandably and properly, desisted from describing in detail the offending, which was disturbing and distressing. For the purposes of this application, it is sufficient for us, generally, to adopt the same course as that taken by her Honour. In doing so, it is convenient to note the judge's assessment of the gravity of each of the offences. For the purposes of ground 2, we will also note the sentence imposed on Heels in respect of the charges which were common to both the applicant and Heels.
In assessing the gravity of the offending, the judge adopted the INTERPOL Baseline Scale for categorising child abuse material. By that system, Category 1 incorporates material that depicts a real prepubescent child involved in a sex act and witnessing a sex act, or material which focuses on the anal or genital region of the child. Category 2 incorporates other child abuse material which is illegal in Victoria but which does not fit within Category 1.
At the time of the offending, the applicant and Heels were each 32 years of age. They had been living together for some time in Berwick. The applicant was employed as a chef, and he ran a business selling baked goods. He held a Working with Children Check, which he had registered with multiple performing arts organisations as a volunteer. He had been involved in the amateur performing arts scene in south-east Melbourne for some 10 years. The applicant and Heels often took part in musical productions together.
At the time of the offending, Heels also held a Working with Children Check, registered with multiple organisations. He was employed: by Fountain Gate Secondary College as a music teacher, teaching small group and private music lessons to students; by Triple Threat Academy (a performing arts school) as a singing teacher; by Songbirds School of Performing Arts as a private piano and singing teacher; and by Masquerade Talent Studios (a performing arts studio) as a singing teacher, pianist and director.

[104]

Charge 1 on the indictment against the applicant alleged that, between 1 December 2017 and 13 December 2019, he used a carriage service to transmit communications to victim A, with the intention of procuring victim A, who was a person under the age of 16 years, to engage in sexual activity, contrary to s 474.26(1) of the Criminal Code.
At the time of the offending, victim A was aged between 14 years and 17 years. When he was 14 years old, he accepted a friend request from the applicant on Snapchat. They had not previously known each other. They commenced by engaging in general conversation, in the course of which the applicant asked victim A about his interests and his sexual preference. During the next two to three months, they exchanged messages. The applicant told victim A that he was homosexual, that he was in an open relationship with his partner, and that his partner did not meet his sexual needs.
At some point, victim A became uncomfortable with the applicant and unfriended him on Snapchat. The applicant persisted in communicating with victim A on Instagram, and victim A then added the applicant back as a friend on Snapchat. The applicant, on numerous occasions, asked victim A to meet him face-to-face, so that they could engage in sexual activity. The applicant sent victim A messages that said things like, 'Let's have sex, oral, fucking'. The applicant planned meetings with victim A in victim A's local area. Victim A felt uncomfortable and afraid as a result of those messages, and he declined to meet with the applicant. By his plea, the applicant accepted that his communications with victim A on Snapchat and Instagram were intended to procure victim A for sexual activity. It was that conduct that constituted the offence that was the subject of charge 1.
Offence 1 on the s 16BA schedule, which was taken into account in sentencing the applicant on charge 1, was that between 1 December 2017 and 13 December 2021, the applicant used a carriage service to transmit indecent communications to a person under 16 years of age, contrary to s 474.27A(1) of the Criminal Code. That offending consisted of the applicant, between those dates, sending to victim A between 6 and 12 photographs and videos of himself, naked and/or masturbating.
The judge characterised the offending by the applicant, that was the subject of charge 1, as particularly egregious, taking into account matters such as the period of time over which the offending occurred, and the applicant's persistence toward a vulnerable child.[7] The applicant was sentenced on charge 1 to 4 years' imprisonment.
Charge 2 on the indictment alleged that, between 1 December 2017 and 20 September 2019, the applicant used a carriage service to cause child pornography material to be transmitted from victim A to himself, contrary to s 474.19(1) of the Criminal Code.
Charge 2 was based on the conduct of the applicant in requesting, on at least 12 occasions, that victim A send to him nude photographs or videos of himself masturbating or engaging in sexual activity with adult men, or children of either sex. In response, victim A sent the applicant 12 photographs and videos of himself naked, exposing his penis or masturbating. In addition, the applicant sent messages to victim A, asking him whether he had access to children. The applicant also asked victim A on numerous occasions to engage in sexual activity with other people, especially children to whom victim A had access, and to take photographs and videos of that activity to send to the applicant. The applicant's mobile telephone, when searched, was found to contain images and videos of victim A and victim A's nephew, who was born in 2015. Those images had been sent by victim A to the applicant in response to the applicant's request for a video of victim A playing with his nephew, and were not child abuse material. The applicant also sent victim A messages, asking that victim A bounce his nephew on his lap and engage in sexual activity with him. Victim A refused to participate in that behaviour.
Offences 2 and 3 on the s 16BA schedule, which were taken into account in sentencing on charge 2, related to the encouragement, by the applicant, of victim A to continue sending pornographic images of himself when he was almost 16 years of age, and after he had turned 16.
The judge characterised the offending, that was the subject of charge 2, as constituting a serious criminal offence.[8] The applicant was sentenced to 4 years' imprisonment on that charge.
Charge 15 on the indictment alleged that, on 7 May 2021, the applicant used a carriage service to transmit child abuse material relating to victim A, contrary to s 474.22(1) of the Criminal Code.
On that date, the applicant used the application Telegram to send to Heels (his co-offender) seven videos of victim A that constituted Category 2 child abuse material. They included videos of victim A masturbating and penetrating his anus with his fingers.
After the applicant had sent five of those videos to Heels, Heels responded, acknowledging that victim A was 'illegal', and expressing his desire to perform a sexual act on victim A. The applicant replied, suggesting that victim A would be responsive to that act, and sent Heels a further video of victim A.
In her reasons for sentence, the judge considered that the videos, that the applicant forwarded to Heels, were serious examples of child abuse material. The offending by the applicant was described as objectively serious, given that: victim A was known to the applicant and the offending constituted a breach of his trust; the consequences for victim A were apparently irrelevant to the applicant; and the transmission of the videos was obviously intended to sexually arouse Heels.[9] The judge sentenced the applicant to 2 years and 6 months' imprisonment on charge 15.
Heels' participation in the Telegram messages was the subject of charge 20 on Heels' indictment. The judge noted that the offending was a further example of Category 2 child abuse material being exchanged between Heels and the applicant, which had occurred on a single day.[10] Her Honour imposed a sentence of 2 years' imprisonment on Heels. On appeal, that sentence was reduced to 1 year imprisonment.
Charge 22 on the indictment alleged that, on 21 May 2021, the applicant used a carriage service to transmit child abuse material to victim A, contrary to s 474.22(1) of the Criminal Code.
On that date, the applicant used the application Telegram to send six image files, containing both Category 1 and Category 2 child abuse material, to victim A, who was then 17 years of age.
The material comprised images of a number of male children, aged between one year and 14 years: being orally penetrated by an adult male's erect penis; having their penis held by an adult hand; and having their penis and genitals exposed.
The judge noted that the fact that those images were forwarded to a young adult, from whom the applicant was seeking further pornography, was a feature of his manipulative and self-centred behaviour. The judge described the applicant's offending as objectively serious.[11] The applicant was sentenced, on charge 22, to 3 years' imprisonment.

[105]

Charges 3 and 4 concern conduct of the applicant involving victim B, who was then 15 years of age. Victim B had been a student at one of the talent studios where Heels had previously worked.
Charge 3 alleged that, between 1 April 2020 and 22 June 2020, the applicant used a carriage service to transmit communications to victim B, a person under 16 years of age, with the intention of procuring victim B to engage in sexual activity with him, contrary to s 474.26(1) of the Criminal Code.
In April 2020, the applicant started to message victim B on Instagram, and they chatted about victim B's musical theatre performances and other daily interests. At some point in April or May 2020, the applicant escalated the conversations to involve sexual topics. He started to send victim B nude photographs of himself, he told victim B that he wished that victim B was homosexual, and he asked victim B whether he had ever previously watched pornography. The applicant encouraged victim B to masturbate in particular ways, and to send him photographs of himself doing so, and also to send other intimate images of himself. Victim B complied with that request, and sent to the applicant about five sexually explicit photographs and videos of himself. In addition, the applicant requested video calls with victim B. At the end of their conversations, the applicant requested victim B to delete messages he had sent. He pressed victim B to do so 'because otherwise we'll be found out'. As the judge noted, this demonstrated that the applicant was aware of the serious criminal conduct involved in his communications.[12]
By his plea to charge 3, the applicant accepted that his communications with victim B on Instagram were intended to procure victim B for sexual activity.
Offence 4 on the s 16BA schedule, which was taken into account in sentencing the applicant for charge 3, was an offence of using a carriage service to transmit indecent communications to a person under the age of 16 years, contrary to s 474.27A(1) of the Criminal Code. The offence consisted of the applicant sending to victim B, over the same period as that covered by charge 3, between four and seven sexually explicit photographs and videos of himself, naked, with a sex toy, and masturbating.
In sentencing the applicant on charge 3, the judge noted that the applicant's behaviour had been manipulative, exploitative and self-centred, and that the applicant had disregarded the harm that he undoubtedly caused to victim B by such behaviour.[13]
Taking into account the number of weeks over which the offending occurred and the age of victim B, as well as the applicant's persistence in the conduct, the judge regarded the offence, constituted by charge 3, as objectively serious.[14] The applicant was sentenced on that charge to 3 years and 6 months' imprisonment.
Charge 4 on the indictment alleged that, between 1 April 2020 and 22 June 2020, the applicant used a carriage service to cause child abuse material to be transmitted to himself from victim B, contrary to s 474.22(1) of the Criminal Code. During that period, the applicant persuaded victim B to transmit to him intimate images, which constituted Category 2 child abuse material, on Instagram. Screen captures of the images were saved to the applicant's iPhone on 16 December and 17 December 2020. The judge considered that the offence, that was the subject of charge 4, was of 'slightly less objective seriousness'.[15] The applicant was sentenced, on charge 4, to 2 years and 6 months' imprisonment.

[134]

The images and videos depicted child victims, both male and female, aged from between approximately two to three months to 14 years.
The contents of some of the images and videos were described in the prosecution opening. As an example, and as the judge noted, on 3 May 2021 the applicant sent Heels 17 image and video files that depicted both male and female children being variously sexually penetrated by an adult male, or holding an adult male's erect penis in close proximity to their face, or adults ejaculating onto a child's face or body.[46] As the judge noted, they represented 'very serious forms of Category 1 material'.[47]
On the five occasions on which the applicant sent Telegram messages to Heels, those messages contained discussions of the images the applicant had sent Heels, and explicit sexual references to the children in those images. Many of the descriptions related to sexual encounters the applicant wished to engage in with young or very young children. A number of the conversations described aggressive acts against the children or sexual activity with the children in public places, and much of the conversations related to the applicant's profoundly depraved excitement at seeing or imagining children being raped by adults. On one occasion, the applicant referred to a 'baby gangbang' and to a child being used as a 'fuck toy'.
Again unsurprisingly, the judge described the offence, that was the subject of charge 5, as a very serious form of the offence taking into account the number of images of real children, the degree of physical sexual abuse suffered by them, and the duration of the offending (three weeks).[48] The applicant was sentenced to 6 years' imprisonment.
Heels' receipt of this material (and other material) was the subject of charge 7 on Heels' indictment, which alleged that, between 3 May 2021 and 26 May 2021, Heels used a carriage service to cause child abuse material (the material that was the subject of charge 5 on the applicant's indictment, as well as the material that informed charges 7 to 21 on the applicant's indictment) to be transmitted to himself (by the applicant). The judge noted that Heels intentionally caused the applicant to send the material to him, by asking him to do so, and that he also actively engaged in the exchanges about sexual activity with children. The judge considered the offence to be above mid-range in objective gravity, taking into account the range of days over which the offending occurred, the number of conversations or images sought, the ages of the children, and the nature of sexual activity depicted.[49] Heels was sentenced to 5 years and 6 months' imprisonment on the charge. On appeal, that sentence was reduced to 3 years' imprisonment.
Heels' transmission of child abuse material to the applicant over the same period was the subject of charge 8 of Heels' indictment. Charge 8 alleged that Heels used a carriage service to transmit to the applicant 16 image files depicting male child victims, aged between two to three months and 14 years, and 10 Telegram messages in which he described sexual activity with unidentified and hypothetical child victims. On that charge, Heels was sentenced to 6 years' imprisonment. On appeal, the respondent conceded that the sentence imposed on that charge was manifestly excessive, and Heels was re-sentenced to 4 years' imprisonment.
Charge 6 on the applicant's indictment alleged that, between 3 May 2021 and 20 May 2021, the applicant caused child abuse material to be transmitted to himself using a carriage service contrary to s 474.22(1) of the Criminal Code.
Charge 6 was a rolled-up charge capturing all the child abuse material, which Heels sent to the applicant, and which was also the material that supported charges 6, 8, 10, 14 to 21 and 24 to 27 against Heels. By his plea of guilty, the applicant accepted that he had intentionally caused Heels to send the material to him by asking him to do so, and that he had actively engaged in exchanges of messages with Heels about sexual activity with children. Many of the children were personally known to the applicant and Heels. The judge noted that the aggravating features of the offence included the range and dates of the offending, the number of children involved, and the significant breach of trust entailed in the offending.[50] The applicant was sentenced to 5 years and 6 months' imprisonment.
Charge 23 on the indictment alleged that, on 27 May 2021, the applicant possessed or controlled child abuse material in the form of data contained in a data storage device and used a carriage service to obtain or access that material contrary to s 474.22A(1) of the Criminal Code.
Charge 23 was a rolled-up charge. It comprised the possession or control by the applicant of child abuse material obtained or accessed using a carriage service that was contained on his Apple iPhone 12 and Western Digital portable hard drive. In total, the applicant possessed 3,019 image and video files containing child abuse material. The files consisted of 2,566 images and videos that were Category 1 child abuse material, and 453 images that were Category 2 child abuse material. The judge considered that the offending represented a very serious example of the charged offence.[51] The applicant was sentenced to 6 years' imprisonment.
Charge 28 on Heels' indictment concerned a like offence committed by Heels. The charge was a rolled-up charge that reflected the possession or control, by Heels of child abuse material obtained or accessed using a carriage service that was contained on his Apple iPhone 12, his Apple iMac computer, and a Verbatim 16GB USB. In total, Heels possessed 820 images and video files containing child abuse material. The files consisted of 411 images and videos that contained Category 1 child abuse material, and 409 images and videos that contained Category 2 child abuse material. Heels was sentenced to 6 years' imprisonment. On appeal, that sentence was reduced to 4 years' imprisonment.

[135]

The applicant was born in February 1989. He had an unremarkable childhood, although when he was about 16 years of age, he and his brother were effectively evicted from the family home. Nevertheless the applicant completed Year 12 at school.
After the applicant left home, he subsequently commenced a relationship with Heels at the end of 2010. They lived together until they were both arrested on 27 May 2021. It appears that their relationship was quite stable.
After leaving school, the applicant commenced work in the hospitality industry, and he qualified as a chef in about 2016. Until he was arrested on the present matter, he was regularly employed as a chef in the food services industry.
Following his arrest, the applicant has been placed in the same cell as Heels in the Hopkins Correctional Centre.
The applicant was examined by Dr Dion Gee, a forensic psychologist, in December 2022. Dr Gee expressed the view that the applicant did not fulfil the diagnostic criteria for a paedophilic disorder, but presented with an enduring paraphilia disorder. He considered that the applicant had not made any attempt to refrain from offending, and that he had responded rapidly to situational cues that supported and facilitated the sexual offending.
Dr Gee also considered that the applicant demonstrated reduced insight into his mental health needs and psychological wellbeing, and that he had a compromised appreciation of the need for self-regulation, as well as his risk profile and potential future risks. In that respect, Dr Gee considered that the applicant, at the time of examination, presented with at least a moderate risk of reoffending sexually in the future. That risk was underpinned by several offence-specific risk markers. On the available material, Dr Gee did not consider that the applicant presented as an explicit risk towards prepubescent boys, but considered that it was likely that any sexual violence by him, if it was to occur, would be against pubescent male children with whom he engaged on social media.
Dr Gee considered that it did not appear that imprisonment would weigh more heavily on the applicant than on a person of normal mental health. Dr Gee expressed the view that the applicant required ongoing monitoring of his mental health. In particular, he required engagement in a best-practice group-based sexual offender intervention program of moderate to high intensity. Dr Gee considered that the applicant would benefit from engaging in psychological intervention to address some of the dysfunctional, dependent and avoidant features embedded within his personality.
On the plea, counsel for the applicant noted that the applicant acknowledged that he was the instigator of the conduct that he engaged in with Heels. In mitigation, counsel relied on the applicant's plea of guilty which, it was submitted, had substantial utilitarian value. In addition, counsel relied on the applicant's lack of previous convictions, and his history of regular employment.

[145]

In essence, counsel for the applicant submitted that the sentences imposed on the applicant were manifestly excessive, particularly in view of the sentences imposed on Heels, as moderated on appeal.
Counsel noted that the total effective sentence, imposed by the primary judge on Heels, was 11 years' imprisonment, compared with the total effective sentence of 10 years' imprisonment imposed on the applicant. Following his successful appeal, Heels was re-sentenced to a total effective sentence of 8 years' imprisonment. It was submitted that the totality of Heels' offending was more substantial than that of the applicant.
In particular, it was submitted that Heels was sentenced on more charges than the applicant, and that a number of those charges were more serious than those relating to the applicant. In that respect, counsel submitted that the nature of the State offences, to which Heels pleaded guilty, were more serious than the offending that was the subject of charges 1 to 4 against the applicant. In addition, it was submitted, the Commonwealth offences, to which Heels pleaded guilty, comprising charges 4, 11 and 12 on Heels' indictment, did not involve the applicant, and were serious offences. In those circumstances, it was submitted that, as a consequence of the re-sentencing of Heels, the total effective sentence of 10 years' imprisonment, imposed on the applicant, was manifestly excessive, and offends against the principle of parity of sentencing.
In support of that proposition, counsel submitted that most of the mitigating factors that were relevant to both Heels and the applicant were fundamentally similar. Neither had any previous convictions, and both pleaded guilty early. Counsel accepted that there were three relevant differences in the mitigating factors that applied to the applicant and Heels respectively. First, it was accepted that the applicant had influenced Heels to participate in the offending. Secondly, Heels had made frank admissions to police, upon his arrest. Thirdly, the applicant's offending had occurred over a longer period of time than Heels, whose offending was confined to the month of May in 2021. On the other hand, in that respect, it was noted that 12 of the charges against the applicant concerned offending, by him, on single dates, namely, charges 10, 11 and 12 (6 May 2021); charges 14 and 15 (7 May 2021); charges 17 and 18 (14 May 2021); charge 19 (18 May 2021); charges 20 and 21 (20 May 2021); charge 22 (21 May 2021); and charge 23 (27 May 2021).
Counsel acknowledged that it was not submitted, on behalf of the applicant, that any of the individual sentences on charges 1 to 4 (inclusive) were affected by error. Specifically, it was not submitted that those sentences were manifestly excessive, save that the periods of cumulation, and the commencement dates, directed by the trial judge, were subject to the submission that the overall total effective sentence of the applicant is manifestly excessive having regard to the issues of parity relating to Heels' total effective sentence as adjusted on appeal.
Counsel noted that all of the offences that were the subject of charges 5 to 23 - which constituted 19 of the 23 charges against the applicant - were committed in May 2021. It was submitted that, as in the case of Heels, to a large extent, the offending committed in that month overlapped, and that much of it involved text-based child abuse material. In particular, charge 6 related to the child abuse material, which was sent by Heels to the applicant, which also supported charges 6, 8, 10, 14 to 21 and 24 to 27 in Heels' indictment.
Counsel for the applicant then methodically took the Court through the circumstances of each of charges 5 to 23 and the sentences imposed on the applicant for those offences and compared them with the sentences imposed on Heels in respect of corresponding charges. Counsel's submissions in that respect were comprehensive and helpful.
Counsel noted that the applicant was sentenced to 6 years' imprisonment on charge 5, which was a rolled-up charge concerning the applicant's conduct in using a carriage service to transmit child abuse videos and images to Heels, as well as child abuse material describing unidentified victims. Counsel submitted that although this was not a charge that was explicitly common to both the applicant and Heels, there were two charges against Heels that were relevant from a parity perspective.

[148]

In response, counsel for the respondent noted that, in allowing the appeal by Heels, this Court had concluded that a number of the sentences imposed on individual charges, and cumulation effected between those sentences, were manifestly excessive. Counsel for the respondent accepted that, while the overall offending, and mitigating factors, between the applicant and Heels were not identical, nevertheless, a significant amount of the offending in each case was based on substantially the same facts and circumstances. Accordingly, counsel accepted that a number of the individual sentences imposed on the applicant, and the orders for cumulation, were manifestly excessive. The respondent thus conceded that, in view of the resentencing of Heels, there is now a disparity between several of the individual sentences imposed on each of the two offenders, such that the applicant would have a justifiable sense of grievance. Accordingly, it was conceded that the sentencing discretion in this case is reopened and the applicant should be resentenced.
In that respect, counsel for the respondent submitted that the offending by the applicant was objectively very serious. It was committed over three distinct periods of time, and it involved a large number of identifiable victims (18 children), and many unidentified children. In addition, the applicant admitted five schedule offences. Counsel noted that the applicant's offending reflected a diverse range of conduct, including: use of social media to procure two children for sexual activity; requesting and receiving self-produced child abuse material from those children; sending child abuse material to one of those two children; exchanging child abuse material with Heels, consisting of a large amount of images and videos and written material; and possession of 3,019 images and videos of child abuse material across two electronic devices. Counsel further noted that the offending was committed by the applicant for his own, and Heels', sexual gratification.
Counsel submitted that the offending conduct, by the applicant towards victim A and victim B, was particularly serious. Four charges (charges 1, 2, 15 and 22) were concerned with victim A. Counsel noted that the applicant had admitted three schedule offences that were to be taken into account in sentencing for charges 1 and 2. Two charges (charges 3 and 4) concerned victim B, who was known to Heels through a talent studio in which Heels worked. Counsel submitted that, in each case, the offending against those two children was predatory, and characterised by an abuse of power and breach of trust.
Counsel noted that Heels was sentenced on six State charges, which related to contact offending and other sexual offending in the presence of a child, concerning two child victims, who were aged between 8 and 10 years old. The victims were Heels' students and the offending occurred during private tuition sessions. Heels filmed the offending. The victims were unaware of the offending. Counsel submitted, in that respect, that although the particular offences committed by the applicant and Heels were different, there were relevant similarities between them, in that they each had 'direct' contact with the children. While Heels had physical contact with his victims, the applicant had direct contact with the children via social media. It was further submitted that, in the case of Heels, the children were not aware that the offending was being committed against them, whereas, in the applicant's case, the children were so aware.
Counsel further noted that 14 of the charges against the applicant concerned the transmission, by the applicant to Heels, of written child abuse material that depicted 16 identifiable child victims, whose ages spanned between two months old and 13 years old. In each case, the offending involved a significant breach of trust. On a number of occasions, the offending was preceded by the exchange, between the applicant and Heels, of photographs of the children to magnify the sexual gratification they gained from the child abuse material. In that way, it was submitted that the offending was more serious than that involved in the transmission of written material concerning hypothetical children. The material contained descriptions of fantasised sexual activity that included extreme content involving the depiction of children as victims of rape, violence, cruelty and degrading treatment.
Counsel further noted that three charges (charges 5, 6 and 23) involved the applicant possessing, sending or receiving images or videos of child abuse material. It was submitted that, in particular, charge 5 was serious because the child abuse material sent by the applicant to Heels depicted children between the ages of two months old and 14 years old, and included depictions of extreme content, including children being penetrated by adults and the subject of degrading treatment. Charge 23 was serious in view of the large number of files possessed by the applicant, the majority of which (2,566 files) consisted of Category 1 child abuse material, depicting real and prepubescent children.
In particular, counsel submitted that the offending by the applicant, that was the subject of charge 5, was considerably more substantial than the offending by Heels on charge 8 of the Heels indictment. Charge 5 against the applicant comprised him sending 637 images and video files of children on multiple occasions, and descriptions of children on five occasions. By contrast, charge 8 on the Heels indictment involved Heels sending 16 images of children, as well as descriptions of children.
Counsel further submitted that there are some differences between the offending by the applicant and that of Heels. In particular, the offending by Heels occurred over a shorter period of time. Both the applicant and Heels pleaded guilty to a charge of possessing child abuse material, but the applicant's offending was of greater objective gravity, primarily because he possessed substantially more child abuse material than Heels.
On the other hand, counsel noted that Heels pleaded guilty to 28 charges and he admitted seven schedule offences. Four of the charges, to which Heels pleaded guilty, were State charges, which involved contact offending, and other sexual offending in the presence of two child victims, aged between eight and 10 years, who were his students.
Counsel further noted that there are similarities in the mitigating circumstances relevant to both the applicant and Heels. Both the applicant and Heels pleaded guilty at an early stage, and neither has a criminal record. However, Heels cooperated with law enforcement by making extensive admissions in his recorded interview with police. On the other hand, the applicant cooperated to a more limited degree by making substantially fewer admissions.

[151]

"child abuse material" means:

(a) material that depicts a person, or a representation of a person, who:

(i) is, or appears to be, under 18 years of age; and

(ii) is, or appears to be, a victim of torture, cruelty or physical abuse;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(b) material that describes a person who:

(i) is, or is implied to be, under 18 years of age; and

(ii) is, or is implied to be, a victim of torture, cruelty or physical abuse;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(c) material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:

(i) is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

(ii) is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(d) material the dominant characteristic of which is the depiction, for a sexual purpose, of:

(i) a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or

(ii) a representation of such a sexual organ or anal region; or

(iii) the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;

in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(e) material that describes a person who is, or is implied to be, under 18 years of age and who:

(i) is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

(ii) is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(f) material that describes:

(i) a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or

(ii) the breasts of a female person who is, or is implied to be, under 18 years of age;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(g) material that is a doll or other object that resembles:

(i) a person who is, or appears to be, under 18 years of age; or

(ii) a part of the body of such a person;

if a reasonable person would consider it likely that the material is intended to be used by a person to simulate sexual intercourse.

[164]

The offences of access to and possession of child pornography are regarded as very serious, involving morally depraved conduct that is extremely harmful to children. Those who are inclined to exploit children, by involving them in the production of child pornography, are encouraged by the fact that there is a market for that material. In other words, the possession of child pornography material creates a market for the continued corruption and exploitation of children by fuelling demand for that material. In that way, it normalises behaviour, which is depraved and exploitive of children.

In that context, it is relevant that offending involving accessing or possession of child pornography occurs on an international level and is becoming increasingly prevalent, with the advent and proliferation of the Internet as a means of enabling people to access and retain child pornography.

In any case, the objective seriousness of the offending is ordinarily determined by reference to a number of different factors, a number of which were conveniently identified by Johnson J in De Leeuw in the following terms:

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 or 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.

In recent times, offending involving child pornography has proliferated, and is difficult to detect in view of the anonymity that is provided by the Internet. Its increasingly pervasive and toxic influence informs the inherent gravity of the offending and the importance of the role of sentencing in addressing the grave harm occasioned by it.

It is for those reasons that the purpose of general deterrence is accorded primacy in sentencing offending involving child pornography. In essence, it is necessary that the sentences imposed by the courts are such that those persons, who might contemplate being involved in the depraved and pernicious reception of child pornography, well understand that if their offending is detected, they will lose their right to be at liberty within society for a substantial period of time. It is only in that way that the courts can perform the vital function of providing protection to vulnerable children.[66]

[169]

It has been recognised that there is a relevant, and important, difference between cases in which child abuse images and text are created from the offender's own imagination, and cases (such as the present) in which the images depict, and the text concerns, actual children.[70]
In a case such as the present, in which the offenders discussed perverted fantasies concerning real children who were known to them, in some cases prompted by an exchange of images and videos of those children, and did so for their own depraved sexual gratification, the moral culpability of the offenders, and the objective gravity of the offending, is necessarily more substantial. In addition, in a case such as this, in which the child abuse material was exchanged by use of the internet, there is a material risk of further dissemination of, or access to, the material in the longer term. The potential for such consequential emotional harm and trauma to the innocent victims and families must be regarded as an inherent aspect of the offending committed by both the applicant and Heels.
Those considerations necessarily inform an assessment of the inherent objective gravity of offending of the kind committed by the applicant in the present case, and an assessment of the offender's moral culpability for that offending. In cases such as the present, the inherent gravity and harmfulness of the kind of conduct engaged in ordinarily means that the sentencing purposes of general deterrence and denunciation must be given significant, if not primary, priority. It is necessary that sentences imposed in cases such as this case constitute a clear message to those in the community, who might be minded to engage in the kind of offending committed by the applicant, that, upon apprehension, they will lose their right to remain in society for a substantial period of time. It is in that way that the courts may, and should, play an important role in preventing the kind of harm inherent in such offending. Further, it is important that, ordinarily, the sentences imposed in cases such as this be sufficient to reflect the condemnation, by the courts and the community, of the degrading and malignant conduct inherent in such offending.

[170]

The first proposed ground of appeal is that the individual sentences, the orders relating to commencement dates (that thus provided for cumulation), the total effective sentence and the non-parole period fixed were each manifestly excessive. In order to establish that ground, the applicant must demonstrate that the sentences in question were wholly outside the range of sentencing options available to the judge. By its nature, such a test is necessarily a stringent requirement. It is not sufficient for the applicant to establish that the individual sentences, the orders for cumulation, or the total effective sentence and non-parole period were longer than this Court might have imposed in the circumstances. Rather, the applicant must demonstrate that the sentences were so excessive as to bespeak error by the judge in the exercise of the sentencing discretion.[71]
The second proposed ground of appeal is that the sentences imposed on the applicant now contravene the parity principle, having regard to the sentences that the co-offender (Heels) is now serving as a consequence of his successful appeal to this Court. The principle of parity may apply in a case, such as the present, in which a co-offender has successfully appealed sentence.[72]
The effect of the principle of parity in sentencing has been well-established since the decisions of the High Court in Lowe v The Queen[73] and Postiglione v The Queen.[74] The principle is based on the proposition that equal justice requires that, all things being equal, like co-offenders should be treated equally, subject to the qualification that relevant differences between the culpability of the offenders, and matters personal to them, be properly accommodated in the exercise of the sentencing discretion.
Sentencing error on the basis of disparity may occur where, taking into account the differences between the roles of the offenders in the offence, their respective levels of culpability, and their personal circumstances, there nevertheless is such a marked discrepancy between the sentences passed on co-offenders as to produce a justifiable sense of grievance in the objective bystander. The imprecise nature of sentencing in each case, and the discretionary nature of sentencing, involving the balancing and synthesis of relevant considerations, is such that it may only be concluded that sentencing error on the basis of disparity has occurred where the appellate court considers that it was not open to the sentencing judge to differentiate in the sentences of the co-offenders in the way in which the judge did.[75]
In the present case, the principle thus applies where, as a consequence of the successful appeal against sentence by Heels, it would not be possible to justify the differentiation that has resulted between the sentences imposed on the applicant, and the sentences that are now imposed on Heels. In particular, the principle is relevant to the sentences imposed on the 17 of the 23 charges against the applicant, which corresponded with charges on which Heels was sentenced.

[174]

First and foremost, the applicant accepted, as he did on the plea, that he was the person who was the instigator of a significant number of the offences that were, in effect, jointly committed by himself and Heels. Indeed, counsel for the applicant on the plea made clear to the sentencing judge that it was the applicant who took responsibility as the instigator of the offending. That concession, properly made, was consistent with the circumstances of a number of the offences, that were jointly committed by the applicant and Heels, as outlined in the prosecution opening.
Secondly, the applicant accepted that after their apprehension by police, there was a significant difference in his degree of cooperation and the cooperation by Heels.
In the prosecution opening, it was noted that, while the applicant was cooperative with police, he only made limited admissions in the course of his interview. When asked to clarify his understanding of what child abuse material was, he said, 'Child pornography that would've been found on my computer or on my phone'. The applicant otherwise opted to exercise his right not to answer any further questions.
On the other hand, Heels participated in a recorded interview and made full and candid admissions. He told police which devices belonged to him, and he admitted that he used Facebook, Facebook Messenger, Instagram, and other social media platforms. He admitted that he used Telegram, Facebook, Facebook Messenger and Snapchat to communicate with the applicant. He admitted he had child abuse material stored on his phone, desktop computer and hard drive, and he described that material. He said that he had the material in order to watch it, and that he did so for erotic pleasure. He also described (in reasonably graphic terms) some of the child abuse material that comprised his own written descriptions of sexual activity with children. In the course of the interview, he said, 'I know wholeheartedly that what I've done is incredibly wrong and disgusting and such ... I am an adult and I know full well I am in control of my actions'. He proceeded to say that he engaged in the conduct because it aroused the applicant, and he enjoyed the fact that he was arousing the applicant in that way. Plainly, those admissions, made by Heels, and his candour and cooperation with police, were a relevant mitigating circumstance that, to a substantial degree, was not available to the applicant.

[175]

As noted, the offending that was the subject of charges 1 to 4 on the applicant's indictment did not correspond with any of the offending alleged against Heels. Counsel for the applicant, correctly, did not seek to raise any issue of parity relating to the sentences imposed on the applicant on charges 1 to 4, with the sentences imposed on Heels for the State offences, namely, charges 1, 2, 3, 5, 22 and 23 on Heels' indictment.
Further, counsel did not submit that the individual sentences imposed on the applicant on charges 1 to 4, or the periods of cumulation in respect of those sentences, were manifestly excessive. That concession by counsel was correct.
The offending that was the subject of charges 1 to 4 was particularly serious. The objective gravity of the offending, and the applicant's moral culpability for it, was high. Charges 1 and 2 concerned offending by the applicant that took place over two years. The offending that was the subject of charges 3 and 4 occurred over a period of approximately 10 weeks. The offending consisted of persistent conduct, by the applicant, that was directed to sexually exploiting two young victims for the applicant's own depraved purposes. Four schedule offences are relevant to the sentences imposed on charges 1 to 3. In sentencing the applicant on charge 1, the judge took into account one schedule offence of using a carriage service to transmit indecent communications to a person under 16 years of age. In sentencing the applicant on charge 2, the judge took into account two schedule offences of using a carriage service to cause child abuse material to be transmitted to himself. In sentencing the applicant on charge 3, the judge took into account one schedule offence of using a carriage service to transmit indecent communications to a person under 16 years of age. Taking into account the nature and gravity of the offending comprised by charges 1 to 4, as well as the admitted schedule offending relevant to charges 1 to 3, the sentences imposed on each of those charges, the periods of cumulation directed in relation to them, and the total effective sentence (5 years and 6 months' imprisonment) imposed in respect of those charges, were within range.
On the issue of parity, as we have noted, counsel for the applicant did not seek to compare the offending by the applicant, that was the subject of charges 1 to 4, with any of the offending committed by Heels on which he was sentenced. In particular, counsel did not seek to compare that offending with the offending that was the subject of State charges against Heels, which comprised charges 1, 2, 3, 5, 22 and 23 on Heels' indictment. Heels was sentenced to a total effective sentence of 4 years and 9 months' imprisonment on those charges, with a non-parole period of 3 years. On appeal, Heels' total effective sentence on those charges was reduced to 4 years and 6 months' imprisonment with a non-parole period of 3 years. The differential between the total effective sentence imposed on Heels on appeal on those charges, and the total effective sentence imposed on the applicant on charges 1 to 4 on his indictment, was appropriate and, of itself, could not constitute a basis for impugning the sentences imposed on the applicant on those charges.

[176]

It is next convenient to consider the sentence imposed on the applicant on charge 23. As noted, charge 23 was a rolled-up charge, comprising the possession or control, by the applicant, of child abuse material that totalled 3,019 image and video files containing such material. A high percentage of those files - 85 per cent - comprised Category 1 child abuse material, namely, material that depicted a real pre-pubescent child involved in a sex act or witnessing a sex act, or material which focused on the genital or anal region of a child.
By comparison, the corresponding charge against Heels (charge 28) was a rolled-up charge that concerned the possession or control, by Heels, of 820 images containing child abuse material. Just over 50 per cent of those images (411 images) comprised Category 1 child abuse material.
In those circumstances, this Court, applying the principle of parity of sentencing, reduced the sentence of 6 years' imprisonment imposed on Heels to a sentence of 4 years' imprisonment. It was not submitted, on this application, that the differential between that sentence and the sentence imposed on the applicant on charge 23 gives rise to any impermissible disparity. Counsel did submit that, in the circumstances, the sentence imposed on the applicant on charge 23 is manifestly excessive and should be reduced. That submission may be readily rejected. For the reasons that we have discussed, and as the authorities have emphasised, the kind of offending engaged in by the applicant comprised conduct that creates and stimulates the market for the continued corruption and exploitation of innocent and vulnerable children, by fuelling demand for that material. The amount, and nature, of the material possessed by the applicant, which is the subject of charge 23, was such that the sentence of 6 years' imprisonment, with effectively a non-parole period of 4 years, in respect of that charge, was within range.
We turn, next, to a consideration of the sentences imposed on charges 5 to 22 inclusive, which (with the exception of charges 17 and 22) were the focus of the submissions, made by the applicant, based principally on the principle of parity.

[177]

A comparison of the sentence imposed on the applicant on charge 5, with a corresponding sentence imposed on Heels, is not straightforward. The applicant submitted that charge 5 on the applicant's indictment corresponded, in different ways, with each of charges 7 and 8 on Heels' indictment.
As we have noted, charge 5 on the applicant's indictment (using a carriage service to transmit child abuse material) comprised a rolled-up charge consisting of multiple occasions on which the applicant transmitted to Heels a total of 637 image and video files containing child abuse material, as well as five occasions on which the applicant transmitted child abuse material to Heels in the form of Telegram messages containing written descriptions of sexual activity with unidentified child victims. We have earlier described the content of some of the material that was the subject of charge 5.[78] As we have noted, the judge described the offending, that was the subject of charge 5, as a very serious form of the offence. That evaluation by the judge of the offending was not in issue on this application.
On charge 7 on Heels' indictment, Heels was charged with causing the material, that was the subject of charge 5 against the applicant, as well as the material that informed charges 7 to 21 on the applicant's indictment, to be transmitted to himself from the applicant. As we have noted, Heels was sentenced to 5 years and 6 months' imprisonment on that charge, which, on appeal, was reduced to 3 years' imprisonment.
The difference between the sentence imposed on the applicant on charge 5 (6 years' imprisonment) and the sentence of 3 years' imprisonment ultimately imposed on Heels on charge 7, is quite substantial. Nevertheless, we do not consider that that difference has the effect that the sentence imposed on charge 5 contravenes the principle of parity of sentence. The criminality involved in charge 5 on the applicant's indictment and charge 7 on Heels' indictment is different. While there is a body of child abuse material that is common to both charges, the charges are directed to different conduct (namely, the transmission of that material by the applicant and the receipt of that material by Heels). It might also be observed that, as we have noted, there were other mitigating circumstances available to Heels on the plea, which were not available to the applicant.
The applicant also sought to draw a comparison with charge 8 on Heels' indictment, which concerned the child abuse material that Heels transmitted to the applicant between 3 May 2021 and 26 May 2021, comprising material that has been described earlier.[79] On that charge, Heels was sentenced to 6 years' imprisonment. On appeal, the respondent conceded that the sentence imposed on that charge was manifestly excessive, and Heels was re-sentenced to 4 years' imprisonment.
The offending by Heels, that comprised charge 8, was offensive and disgusting. However, the material Heels transmitted to the applicant in this period was no more egregious than the material that the applicant transmitted to Heels in this period, which was the subject of charge 5 against the applicant. Charge 8 on the Heels indictment concerned a considerably less child abuse material than charge 5 on the applicant's indictment. In view of the significant difference in the amount of material involved in the respective charges, we do not consider that the sentence imposed on Heels on charge 8, on appeal, is such that the principle of parity requires a reduction in the sentence imposed on the applicant on charge 5.
For those reasons, there is no error in the sentence imposed on charge 5 of the applicant's indictment.

[179]

A comparative analysis of the sentences imposed on the applicant on charges 7 to 21 (inclusive) with corresponding sentences imposed on Heels is more straightforward.
On charge 7, the applicant was sentenced to 2 years' imprisonment. Charge 7 was a rolled-up charge, consisting of four occasions on which the applicant sent child abuse material to Heels, in the form of Telegram messages containing sexually explicit references to victim C, between 3 May 2021 and 20 May 2021. Charge 21 on Heels' indictment concerned child abuse material sent by Heels to the applicant on the third and fourth occasions that were the subject of charge 7 against the applicant. Heels was sentenced to 2 years' imprisonment on charge 21. On appeal, that sentence was reduced to 1 year and 6 months' imprisonment. On this application, counsel for the respondent, quite fairly, conceded that the same reduction in sentence should be accorded to the applicant in respect of the sentence imposed on charge 7. That concession was appropriate. Accordingly, the sentence imposed on the applicant on charge 7 will be reduced to 1 year and 6 months' imprisonment.
Charge 8 on the applicant's indictment concerned two occasions between 3 May 2021 and 21 May 2021 when the applicant transmitted to Heels child abuse material in the form of Telegram messages containing written descriptions and explicit sexual conversations concerning victim D. The applicant was sentenced to 1 year and 6 months' imprisonment on that charge. The corresponding charge on the Heels indictment, charge 10, concerned Heels transmitting to the applicant child abuse material concerning victim D in the same Telegram messages. The comments made by the applicant and Heels in those messages were most disgusting. Heels was sentenced on charge 10 to 1 year and 6 months' imprisonment. On appeal, that sentence was reduced to 1 year imprisonment. The offending in each case was relatively similar. The prosecution conceded that the principle of parity requires that the appeal in respect of the sentence imposed on charge 8 should be allowed, and that the sentence should be reduced to 1 year imprisonment. That concession was correct. Accordingly, the sentence imposed on the applicant on charge 8 will be reduced to 1 year imprisonment.
Charge 9 on the applicant's indictment is a rolled-up charge, comprising three occasions on which the applicant sent child abuse material, in the form of Telegram messages, containing descriptions of imagined sexual activity with victim E, together with a video depicting an unknown male child engaged in sexual activity. As we have earlier noted,[80] the judge appropriately described the contents of the messages as 'depraved and disgusting'. The applicant was sentenced to 2 years' imprisonment on charge 9. Heels' participation in these messages was the subject of charge 13 on Heels' indictment. That charge did not include one of the conversations and exchanges that was the subject of the applicant's charge. However, Heels also fell to be sentenced by reference to a schedule offence of producing child abuse material for use through a carriage service. The schedule offence concerned Heels' production of a video in which he exposed his penis and masturbated in a toy tent at one of the performing arts studios, while orally describing fantasised sexual activity with victim E. This video was sent to the applicant. Heels was also sentenced to 2 years' imprisonment on charge 13 on Heels' indictment. On appeal, that sentence was maintained.
On this application, it was submitted on behalf of the applicant that the applicant's sentence should be less than that imposed on Heels, primarily because the schedule offence was to be taken into account in sentencing Heels. We do not consider that the schedule offence relating to Heels is a sufficient basis to differentiate between the sentences imposed on the applicant and Heels respectively. The applicant was involved in a greater number of instances of transmitting child abuse material relating to victim E than Heels, and most of the child abuse material concerning victim E was prompted by the applicant sending photos of victim E. The applicant also sent Heels the video of the unknown male child engaged in sexual activity, which constituted Category 1 child abuse material. Accordingly, the sentence imposed on the applicant on charge 9 will be maintained.
Charge 10 on the applicant's indictment concerned the applicant's transmission of child abuse material relating to victims I and J (two year old twin boys) to Heels on 6 May 2021. The applicant was sentenced to 2 years' imprisonment on that charge. The corresponding charge on the Heels indictment was charge 16, which involved the transmission of child abuse material relating to the same victims in the same conversation. Heels was sentenced on charge 16 to 2 years' imprisonment. On appeal, his sentence was reduced to 1 year and 6 months' imprisonment. As the respondent properly concedes on this application, there was no relevant difference between the offending by the applicant and Heels. It follows that the sentence imposed on the applicant should also be reduced, on charge 10, to 1 year and 6 months' imprisonment.
Charge 11 on the indictment concerned the applicant's transmission to Heels of child abuse material relating to victim F, who was then just two months old, also on 6 May 2021. Victim F's mother was a personal friend of the applicant and Heels. The judge correctly described the offending by the applicant as a confronting breach of trust involving a very young child that caused disquiet in the victim's family, and, as such, characterised the offending as serious.[81] The applicant was sentenced to 2 years' imprisonment on that charge. The corresponding charge on Heels' indictment was charge 14, which concerned the transmission of disgusting suggestions by Heels relating to victim F. Heels was sentenced to 2 years' imprisonment on that charge. On appeal, that sentence was reduced to 1 year imprisonment. There is no relevant distinction between the offending by the applicant and Heels. The principle of parity of sentence requires that the sentence imposed on the applicant on charge 11, be reduced to 1 year imprisonment.
Charge 12 on the applicant's indictment concerned the applicant's transmission to Heels, again on 6 May 2021, of child abuse material relating to victim G. As we have earlier noted,[82] the offending involved the applicant sending Heels a number of video files containing Category 1 child abuse material (which did not depict victim G), which prompted Telegram messages between the applicant and Heels, in which they discussed performing invasive and demeaning sexual acts on victim G, who was then 13 years of age. The judge correctly described the offending as a confronting breach of trust, and, as such, as being objectively serious. The applicant was sentenced to 2 years' imprisonment on charge 12. Heels' participation in the Telegram messages relating to victim G was the subject of charge 15 on Heels' indictment. Heels was sentenced to 2 years' imprisonment on that charge. On appeal, the sentence was maintained. On this application, it was accepted that the sentence on charge 12 was not affected by any error.
Charge 13 on the applicant's indictment was a rolled-up charge comprising two occasions on which the applicant sent Category 2 child abuse material to Heels in the form of Telegram messages containing explicit sexual references to victim H, who was then 11 years of age. We have described those messages,[83] which the judge, again correctly, described as involving a confronting breach of trust. The applicant was sentenced on charge 13 to 2 years and 6 months' imprisonment. Heels' participation in the messages concerning victim H was the subject of charge 18 on the Heels indictment. Heels was initially sentenced on that charge to 2 years and 6 months' imprisonment. On appeal, his sentence was reduced to 1 year and 6 months' imprisonment. Having considered the content of the messages, it is not possible to discern any relevant differentiation between the culpability of the applicant and that of Heels in respect of the offending. It follows that, in accordance with the principle of parity, the sentence imposed on the applicant on charge 13 must be reduced to 1 year and 6 months' imprisonment.
Charge 14 on the applicant's indictment concerned the applicant's transmission to Heels, on 7 May 2021, of child abuse material relating to victim K, who was then just nine months of age. The exchange of messages between the applicant and Heels was quite egregious. The judge, again correctly, considered that the offending that was the subject of charge 14 was objectively serious. The judge sentenced the applicant to 2 years' imprisonment on that charge. Heels' participation in the exchange of messages concerning victim K was the subject of charge 19 on Heels' indictment. The judge sentenced Heels to 2 years' imprisonment on that charge. On appeal, the sentence was reduced to 1 year and 6 months' imprisonment. The respondent has conceded that the principle of parity requires this Court to resentence the applicant on charge 14. We agree that the application of that principle requires that the sentence, imposed on charge 14, be reduced to 1 year and 6 months' imprisonment.
Charge 15 on the applicant's indictment concerned the applicant using Telegram, again on 7 May 2021, to send Heels seven videos of victim A engaged in sexual activity with himself, which constituted Category 2 child abuse material. These videos were followed by an exchange of messages relating to victim A, as described earlier.[84] The applicant was sentenced to 2 years and 6 months' imprisonment on charge 15. Heels' participation in the offending was the subject of charge 20 on Heels' indictment, concerning the response that he made to the videos, to which we have just referred. Heels was sentenced to 2 years' imprisonment on that charge. On appeal, the sentence was reduced to 1 year imprisonment.
The difference in the conduct of the applicant, and the conduct of Heels, that comprised the offending was, quite plainly, substantial, and required there to be a significant differentiation between the sentences imposed on them respectively. The applicant, in a gross breach of victim A's trust, initiated the offending by sending the videos of victim A containing child abuse material to Heels, with the intention of sexually arousing Heels. In the circumstances, we consider that the reduction of the sentence imposed on Heels does not enliven the principle of parity of sentencing. Instead, the sentence imposed on the applicant, in respect of charge 15, is appropriately proportionate to the sentence imposed on Heels on appeal. The sentence imposed on the applicant on charge 15 will be maintained.
Charge 16 on the applicant's indictment was a rolled-up charge consisting of four instances, between 7 May 2021 and 21 May 2021, in which the applicant sent child abuse material to Heels containing fantasised descriptions of sexual activity with victim L, who was then eight years of age. Heels was victim L's first piano teacher. Each occasion comprising charge 16 has been described above.[85]
In sentencing the applicant on charge 16, offence 5 on the applicant's s 16BA schedule was taken into account, which concerned a further conversation on Telegram of a sexual nature relating to victim L, which the applicant caused to be transmitted to himself, after offering to buy Heels gifts if he could get victim L to touch Heels' penis. The applicant was sentenced to 3 years' imprisonment on charge 16.
The corresponding charge on Heels' indictment was charge 9, which was a rolled-up charge reflecting four occasions, between 3 May 2021 and 21 May 2021, on which Heels sent the applicant child abuse material relating to victim L, which we have described earlier.[86] On the first occasion, Heels sent the applicant two videos he had filmed of himself and victim L, each of which contained Category 1 child abuse material. On the subsequent occasions, Heels sent the applicant a further video of himself and victim L, and expressed a wish to penetrate victim L. In sentencing Heels on charge 9, offence 1 on Heels' s 16BA schedule was taken into account, which concerned Heels producing four videos of himself and victim L that contained Category 1 child abuse material with the intention of transmitting those videos to the applicant or others. Heels was sentenced for the offending on charge 9 to 4 years and 6 months' imprisonment. On appeal, his sentence was reduced to 2 years' imprisonment.
In considering the question of parity relating to the sentence imposed on the applicant on charge 16, it is important that the offending involving victim L commenced with Heels, on 3 May 2021, first sending to the applicant the two videos that he had filmed of himself and victim L, each video containing Category 1 child abuse material. The offending by each of the applicant and Heels that then followed was most egregious. However, as reflected in the sentences imposed on Heels and the applicant by the primary judge, the offending by Heels was more serious than the offending by the applicant, particularly as Heels was the producer of the offensive videos depicting victim L, and it was Heels who sent those videos to the applicant. In view of the reduction, on appeal, of the sentence imposed on Heels on charge 9 on Heels' indictment, it follows that the sentence imposed by the judge on the applicant on charge 16 is required to be reduced to conform with the principle of parity. On that basis, and applying that principle, we would re-sentence the applicant on that charge to 18 months' imprisonment.
Charge 17 on the applicant's indictment concerned the applicant using a carriage service, on 14 May 2021, to transmit to Heels child abuse material prompted by the sharing of four photographs of victims M and N, two brothers who were then aged 10 years and eight years respectively. The child abuse material consisted of written descriptions of imagined sexual acts performed on both children. The circumstances of the offending have been described in more detail above.[87] There was no equivalent charge brought against Heels. The applicant was sentenced, on charge 17, to 2 years and 6 months' imprisonment. It was submitted on his behalf that that sentence was manifestly excessive, in that the criminality involved in charge 17 was akin to the criminality involved in the offending that was the subject of other charges against Heels, and which had resulted in sentences of between 1 year and 18 months' imprisonment.
The sentence imposed on the applicant on charge 17 was certainly stern, bearing in mind the sentences imposed on Heels on a number of the charges in which the offending was at least as serious, and particularly taking into account the sentence imposed on Heels on appeal on charge 9 of Heels' indictment, which we have just discussed. Applying the principle of parity, we would reduce the sentence imposed on the applicant on that charge to 2 years' imprisonment.
Charge 18 on the applicant's indictment concerned the applicant's response to two photos of victim O, a nine year old child to whom Heels gave music lessons, which Heels sent to him. In messages exchanged in response to the photos on 14 May 2021, the applicant described his wish to engage in oral sex with victim O, and suggested that the child perhaps wanted Heels to also perform a sexual act on him. This constituted Category 2 child abuse material. The applicant was sentenced, on that charge, to 2 years and 6 months' imprisonment.
The corresponding charge on the Heels indictment was charge 24, which was a rolled-up charge. On 14 May 2021 and 21 May 2021, Heels sent to the applicant two videos he had filmed of himself and victim O, which contained Category 1 child abuse material. In addition, in sentencing Heels on charge 24, offence 2 on Heels' s 16BA schedule was taken into account, which concerned Heels' production of child abuse material with the intention of transmitting that material using a carriage service. The material the subject of the schedule offence was three videos depicting victim O (including the two videos sent to the applicant), each of which contained Category 1 child abuse material. Heels was sentenced on charge 24 to 4 years and 6 months' imprisonment, which, on appeal, was reduced to 3 years' imprisonment.
Quite plainly, the offending by Heels, that was the subject of charge 24, was substantially more serious than the offending by the applicant, that was the subject of charge 18 on the applicant's indictment. It follows that, applying the principle of parity of sentencing, the applicant will be re-sentenced on charge 24 to 1 year and 6 months' imprisonment.
Charge 19 on the applicant's indictment concerned the transmission, by the applicant, to Heels, of child abuse material relating to victim P on 18 May 2021. The applicant sent to Heels a Telegram message containing nine photos of victim P, aged between one week and four years of age. The photos prompted an exchange of Telegram messages concerning victim P, in which the applicant made suggestions about sexual acts he wished to perform on victim P. Heels responded with an egregious remark about imagined sexual activity involving victim P. The judge sentenced the applicant to 2 years and 6 months' imprisonment.
Heels' participation in the offending was the subject of charge 25 on Heels' indictment. Charge 25 was a rolled-up charge which also included a further occasion on which Heels used a carriage service to transmit child abuse material to the applicant relating to victim P, comprising a video of Heels masturbating over a printed photo of victim P. In sentencing Heels on that charge, offence 4 on Heels' s 16BA schedule was taken into account, which involved Heels' production of child abuse material, namely the video, with the intention of transmitting it to the applicant. Heels was sentenced to 2 years and 6 months' imprisonment. On appeal, his sentence was reduced to 2 years' imprisonment.
Applying the principle of parity, we consider that the applicant's sentence on charge 19 must also be reduced. In the circumstances of the offending, the applicant was, to a material degree, less culpable than Heels. Accordingly, he should be re-sentenced to 18 months' imprisonment.
Charge 20 on the applicant's indictment concerned the applicant transmitting to Heels child abuse material depicting victim Q, who was then five years of age. Victim Q had attended a talent studio at which Heel worked. On 20 May 2021, Heels sent to the applicant four photographs of victim Q, which prompted an exchange of messages on Telegram. In that exchange, the applicant, on five occasions, made obscene suggestions relating to imagined sexual activity with victim Q, which comprised Category 2 child abuse material. Heels responded to each of them in quite short terms, with one exception, when he responded in a manner that constituted Category 2 child abuse material. The applicant was sentenced on charge 20 to 2 years and 6 months' imprisonment.
The corresponding charge on Heels' indictment was charge 27, on which Heels was also sentenced to 2 years and 6 months' imprisonment. On appeal his sentence was reduced to 1 year and 6 months' imprisonment.
Applying the principle of parity, we consider the applicant's sentence on charge 20 must also be reduced. Accordingly, he should be sentenced to 1 year and 6 months' imprisonment.
Charge 21 on the applicant's indictment concerned the applicant transmitting to Heels child abuse material depicting victim R on 20 May 2021. Victim R was then seven years of age and a student at one of the studios at which Heels was employed. He had been taught by Heels. Heels sent to the applicant six photographs of victim R. There then ensued an exchange of messages on Telegram that contained sexually explicit references to victim R, which we have described in more detail above.[88] The judge appropriately characterised the conversations as 'depraved and obscene'. The applicant was sentenced to 2 years and 6 months' imprisonment on that charge.
Heels' participation in the Telegram messages concerning victim R was the subject of charge 26 on Heels' indictment. On that charge, Heels was sentenced to 2 years and 6 months' imprisonment. On appeal, the sentence was reduced to 1 year and 6 months' imprisonment.
The respondent has conceded that the principle of parity requires the same reduction to be made to the applicant's sentence. That concession is appropriate. Applying the principle of parity, accordingly, the sentence of the applicant on charge 21 must be reduced to 1 year and 6 months' imprisonment.

[181]

A consideration of the total effective sentence to be imposed on the applicant, on re-sentencing him, is not straightforward. The sentences imposed on the applicant, on the charges on which he has succeeded, do not directly affect the total effective sentence of 10 years' imprisonment imposed by the sentencing judge. If the orders for cumulation, made by the sentencing judge on the other charges on which the applicant has not succeeded - and specifically, the orders for cumulation in respect of the sentence imposed on charges 5 and 23 - remain, then the sentences, on the charges on which the applicant has succeeded, will expire well before the expiration of the total effective sentence.
Counsel for the applicant specifically addressed that issue. He submitted that the principle of parity should apply, so as to result in a proportionate reduction of the total effective sentence imposed on the applicant. Specifically, counsel submitted that the reduction, on appeal, of the total effective sentence imposed on Heels, from 11 years' imprisonment to 8 years' imprisonment, should be reflected in a commensurate reduction in the total effective sentence that is to be served by the applicant.
In considering that proposition, three points are of relevance.
First, a comparison of the totality of the respective offending by the applicant and Heels is quite difficult. The sentences imposed on the applicant on charges 1 to 4, totalling 5 years and 6 months' imprisonment, have not been affected by our conclusions on this appeal. That offending included two rolled-up instances of using a carriage service to procure two children under the age of 16 (victims A and B) for sexual activity over two separate and lengthy periods. It cannot be meaningfully compared with the offending by Heels that was the subject of separate State charges against him (charges 1, 2, 3, 5, 22 and 23 on the Heels indictment), which involved 'contact' offending and other offending by Heels in the presence of two child victims during private tuition sessions, of which the victims were unaware. On these charges, Heels was sentenced, on appeal, to 4 years and 6 months' imprisonment with a non-parole period of 3 years. The differences in the offending, as reflected in the different sentences imposed on the applicant for charges 1 to 4 and Heels for the separate State charges, also account for some of the differential in the total effective sentence to be served by Heels, and the total effective sentence imposed by the sentencing judge on the applicant.
Secondly, the sentences imposed on the applicant on charges 5 and 23 of the applicant's indictment, totalling 6 years' imprisonment, have also not been affected by our conclusions on this appeal. Although these charges have some parallels with charges in Heels' indictment (charges 7, 8 and 28), the applicant's offending on each charge was significantly graver than Heels' offending, for the reasons discussed above.[90] The applicant's total effective sentence must reflect this consideration.
The third relevant factor, in considering the total effective sentence, is that, as noted, there were two important sentencing considerations, which necessarily account for a differential between the sentences imposed on the applicant, and those imposed on Heels, and their respective total effective sentences. First, the applicant was the instigator of the offending that was the subject of charges against both himself and Heels, that is, the offending that was the subject of 16 of the applicant's charges (charges 5 to 16 and 18 to 21 inclusive). Plainly, the applicant's culpability in respect of those offences was therefore greater than that of Heels. Secondly, on apprehension, Heels made full and candid admissions to the police, which is a relevant sentencing consideration in a case such as this. The applicant did not have such a consideration available to him on determination of his sentence. Each of those two points constituted important mitigating factors taken into account in determining Heels' sentence.[91]
Each of the three factors, which we have discussed, are of importance in determining the question whether, having regard to the total effective sentence now imposed on Heels, the total effective sentence imposed on the applicant should be regarded as manifestly excessive, particularly applying the principle of parity.
Nevertheless, notwithstanding the matters that we have discussed, the fact remains that the applicant has succeeded on this application in respect of the sentences imposed on 12 of the 23 charges on which he was sentenced. That outcome necessarily must effect some reduction in this Court's overall assessment of the gravity of the applicant's offending and his moral culpability, and which should be reflected in some reduction in the total effective sentence.
Based on that proposition, it is, therefore, appropriate that the total effective sentence imposed on the applicant should be sufficiently reduced to take that consideration into account. On that basis, the total effective sentence imposed on the applicant should be reduced to 9 years' imprisonment. The most appropriate, and least complicated, mechanism by which to produce that result is, in effect, to reduce the period of cumulation of the sentences imposed on charges 5 and 23, on the sentences imposed on charges 1, 15 and 22, from a period of 6 years to a period of 5 years, and also to adjust the period of cumulation on the sentence imposed on charge 6 from a period of 4 years to a period of 3 years, which will be reflected in the commencement dates of each sentence. We will fix a non-parole period of 6 years.
The effect of our conclusions is that the applicant's total effective sentence will exceed the total effective sentence imposed on Heels following his appeal. We acknowledge that this was not the case after the original sentences were imposed. However, we are satisfied that it is appropriate, particularly given the three factors we have identified in [241] to [243] above.

Cullinan-Smayle v The King [2025] VSCA 109

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Cullinan-Smayle v The King [2025] VSCA 109 (22 May 2025)