DPP v Cullinan-Smayle & Heels [2023] VCC 480

DPP (Cth) v D'Alessandro [2010] VSCA 60; Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243; R v Porte [2015] NSWCCA 174; Xiao v R [2018] NSWCCA

4; Burton v R (2020) NSWCCA 127; Worboyes v The Queen [2021]

Sentence: [Mr Benjamin Heels]: 11 years imprisonment with a non-parole period of 7 years and 3 months. Life registration under the Sex Offender Registration Act 2004 (Vic).

[Mr Tristan Cullinan-Smayle]: 10 years imprisonment with a non-parole period of 6 years and 7 months. Life registration under the Sex Offender Registration Act 2004 (Vic).

Ms. Zoe Hough - Office of the Commonwealth Director of Public Prosecutions

Mr. Kieran Reynolds - James Dowsley & Associates (for Mr Heels);

Leanne Warren & Associates (for Mr Cullinan-Smayle).

1. Tristan Cullinan-Smayle, you have pleaded guilty to 23 separate offences relating to the physical or online sexual exploitation of children. You have asked the Court to take into account 5 schedule offences on sentence for those offences. Each of the primary offences carry a maximum penalty of 15 years imprisonment and/or a financial penalty of $199,800.1 The schedule offences carry similar penalties.

1. Benjamin Heels, you have pleaded guilty to 22 offences relating to the online sexual exploitation of children and have asked the court to take into account 7 schedule offences.2 Again, each of the primary offences carry a maximum penalty of 15 years imprisonment and/or a financial penalty of $199,800 and the schedule offences carry similar penalties. You have also pleaded guilty to a further 6 charges of sexual assault or engaging in sexual activity in the presence of a child. Each of those offences carry a maximum penalty of 10 years imprisonment with a standard sentence of 4 years relevant to each.

1. In each case, the schedule offence related to the primary charge places the primary facts into context and/ or is related to the same child. The sentence on the primary offence will reflect this.

1. The facts are contained in the prosecution opening and are not in dispute. A summary of offending, as a whole, will be useful in giving context to the individual charges and the offending as a whole. I will then refer to a number of principles and aggravating features common to your offending. A summary of each individual offence will follow to allow a transparent assessment of the objective seriousness of each. In doing so, I will reckon an appropriate sentence for each

1 Pursuant to section 16AB of the Crimes Act 1914 (Cth).

individual charge. I will then discuss totality considerations and consider how long each offender ought to serve before parole and possible conditions of same.

1. Historically, an array of categorisations and classifications have been used to grade the seriousness of child abuse material, images or otherwise. I mention this at this point as some cases refer to these systems.3 The scales used make little difference as there is no suggestion in this case that the images and text described are not serious forms of child abuse material.

1. In the context of this case, Police used the INTERPOL Baseline System to categorise the child abuse material identified. The system recognises four categories. Categories 1 and 2 are child abuse material. I will utilise this classification system when considering and describing the objective seriousness of each offence and the offending as a whole.

Table 3: INTERPOL categories of child abuse material4

Material that depicts a real prepubescent child (under the age of 13 years approximately):

1. witnessing a sex act; and/or
2. focussed / concentrated on the anal and/or genital region of the child.

4 The prosecution opening contains descriptions of the child abuse materials located. I will also consider the

objective seriousness of each offence having regard to these descriptions.

Other material which is illegal in Victoria, but does not fit within Category 1, as defined in s 473.1 of the Criminal Code.

may be of interest from an investigativ e position.

1. From approximately 2010, you, Mr Cullinan-Smayle, resided with Mr Heels in a relationship. From about 2017, you made online contact with a 14-year-old male child. The online contact quickly became sexually indecent and continued in that vein until your arrest in May 2021.

1. You sought pornographic images of that child from him and mentored him to seek similar images from, and of, others. Between 2018 and 2020, you sought to procure this and one other child victim for sexual activity. I am told that Mr Heels disapproved of this interest. I have no reason to doubt that information.

1. Between February and May 2021, you, Mr Heels, engaged in exchanging child abuse material with three other people, one of whom has been charged in a separate, but related, prosecution. The other two are unidentified.

1. Further, between 2 and 26 May 2021, you exchanged child abuse material with each other using the secret chat function in the online application Telegram. You had, by that time, overcome your prior distaste for child pornography.
2. Tristan Cullinan-Smayle, your date of birth is in February 1989. You were 32 years old at the time of the offending. You held a Working with Children card which you had registered with multiple performing arts organisations. You were involved in amateur performing arts in south-east Melbourne for over 10 years in which you took part in local musical theatre productions as cast or crew. You were otherwise employed as a chef and ran a business selling baked goods

1. Benjamin Heels**,** your date of birth is in November 1988. You were 32 years old at the time of the offending. You also held a Working with Children card that was registered with various performing arts organisations for children and young adults. These organisations included Fountain Gate Secondary College, Triple Threat Academy, Songbirds School of Performing Arts and the Masquerade Talent Studio.

1. You were employed at various times on a voluntary or paid basis at these organisations from 2011 to teach singing, piano and drama. You gave small, private group lessons for children aged 8-17 years. You were, from time to time, involved in other capacities in several musical productions. Both of you often took part in musical productions together.

1. You have each been in custody since your arrest in May 2021.

1. On 27 May 2021, police lawfully executed a search warrant at your home address and located a number of mobile phones, computers and other electronic storage devices. The items and exhibit numbers are noted in the prosecution opening.

1. Each of you provided police with the access passcode for your respective phones as required by order. It was submitted that the cooperation by you, Mr Heels, in complying with that order, ought to afford you some additional benefit over and above that referred to in s 16A(2)(h) of the Crimes Act 1914 (Cth).5 I do not agree.

5 As is sometimes called an Ellis discount. See R v Ellis (1986) 6 NSWLR 603.

The order was a requirement for you. You had no real choice. Any refusal may have diminished the benefit of an early plea to which I shall refer to later.

1. Each of you were invited to participate in a recorded interview with police. Admissions were made in relation to the possession of child abuse material. Police forensically examined the contents of each of your mobile phones and other devices. Each of the devices contained child abuse material. The mobile phones were set up with a number of applications for the purpose of communication with others. You accept that both of you used two Telegram secret chat threads for the bulk of your communications and exchanges of information relevant to the charged offences.

1. The details of your exchanges have, of necessity, been referred to in the prosecution opening. The contents are not in dispute and I will refer to them in general terms during the course of this sentence. I do not propose to replicate large tracts of the exchanges. It is by its nature, Category 2 child abuse material.

1. Nineteen of the children described in your messages were known to both of you. They were either students of Mr Heels or children of friends and acquaintances whom you were connected to on social media. Each of you frequently accessed and shared legal images (INTERPOL Baseline Category 3) of those children. Such exchanges would then prompt an exchange of messages containing Category 2 child abuse material.

1. These exchanges consisted of pornographic and non-pornographic images. The Category 1 images and Category 2 text messages showed and described sexual activity, respectively, with, or upon, known and unknown children. The text exchanges are often lengthy and detail in graphic form, mentally constructed hypothetical sexual situations that each of you imagined you were indulging in with, or on, the child to whom you were referring.
2. The sexual activity described is frequently of a violent and aggressive type of non- consensual sexual contact, sometimes involving the humiliation and subjugation of the subject child. The exchanges apparently fed your own sexual gratification as the supposed perpetrators or voyeurs of those sexual assaults. As I have said, some of the images of known children were non-pornographic (Category 3) but were nevertheless used by you to fuel the text based pornographic Category 2 conversations.

1. I have read this material, as I must, to assess the gravity of the individual Category 2 offences. It is deeply depraved, confronting, explicit, and without exception, provides extreme examples of descriptions of child abuse. It explicitly describes violence, humiliation, and sadistic acts towards young and very young human beings. The children you were discussing were aged between a few months to 14 years.

1. In each text exchange, you both graphically describe sometimes significant physical force being used to coerce male children, including toddlers, to engage in penetrative sexual intercourse with you or others. I reiterate that such messages are, by their very nature, seriously depraved and I assess them to be at the upper end of seriousness of Category 2 child abuse material. Individual assessments of each charge will refer to any further aggravating circumstances.

1. The Category 1 images exchanged include depictions of child victims, both male and female, aged from infancy (2 to 3 months old) to 14 years. The children are depicted naked, with their genitals or anus exposed; masturbating themselves; or penetrating their own anus or vagina with their hands or objects. Some are also engaged in sexual activity with adults, including oral, vaginal, and anal intercourse with adult men.

1. Section 16A of the Crimes Act 1914 (Cth) is relevant for determining sentences for Commonwealth offences. A court must impose a sentence or make an order that

is of an appropriate severity in all the circumstances of the offending.6 The section sets out a number of further considerations, some of which pull in opposite directions.7 Similar requirements exist in relation to State offences with relevant considerations appearing in section 5 of the Sentencing Act 1991 (Vic).

1. I also acknowledge section 17A(1) of the Crimes Act 1914 (Cth) and section 5(4) of the Sentencing Act 1991 (Vic) which place restrictions on imposing prison sentences. Under these sections, I must be satisfied that no other sentence is appropriate in all the circumstances of the case. I am so satisfied. Neither counsel have suggested otherwise.

Principles relevant to child abuse - general deterrence

1. General deterrence is a paramount consideration for offences involving child abuse/child pornography material.

1. In R v Gent,8 the Crown relied upon the statement of Morden ACJO in the Ontario Court of Appeal in R v Stroempl.9 It is an historical observation that shows that offending such as this has been a problem for many decades. It remains a worrying crime affecting the most vulnerable in our society. Justice Morden stated that:

The possession of child pornography is a very important contributing element in the general problem of child pornography. In a very real sense, possessors ... instigate the production and distribution of child pornography - and the production of child pornography, in turn, frequently involves direct child abuse in one form or another ... if the courts, through the imposition of appropriate sanctions, stifle the activities of the prospective purchasers and collectors of child pornography, this may go some distance to smother the market for child pornography altogether. In turn, this would substantially reduce the motivation to produce child pornography in the first place.10

6 Crimes Act 1914 (Cth) s 16A(1).

7 For instance, the impact on a victim or an offender's character, antecedents, age, means and physical or mental condition.

8 [2005] NSWCCA 370 at [43].

9 (1995) 105 CCC (3d) 187 at 191.

1. This passage has been applied in Australia in R v Jones,11 a decision referred to by Malcolm CJ in R v Assheton12 and Williams JA and MacKenzie J in R v Cook.13

1. Further, in R v Booth,14 Justice Simpson stated that:

possession of child pornography is an offence which is particularly one to which notions of general deterrence apply. Possession of child pornography is a callous and predatory crime.15

In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world ... Often, this is in underdeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material. What makes the crime callous is not just that it exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes. 16

1. A similar observation can be made of the Category 2 child abuse material which largely consists of both of you exchanging really disturbing conversations about real children. Most of those children had a personal teacher/pupil relationship with you, Mr Heels, and were personally known to you both. It is not far-fetched to observe that your involvement in musical productions for schools where these children went to learn is a significant aggravating feature of much of your offending.

1. The predatory nature of your behaviour in teaching at those studios, appearing in musical productions, providing entertainment for families, and then exchanging child abuse material about the children you were working with is a chilling scenario. Both of you also participated in behaviour in which you either sought, encouraged or indulged in contact offending. Behaviour such as this not only increases

11 [1999] WASCA 24; (1999) 108 A Crim R 50 at [51].

12 [2002] WASCA 209; (2002) 132 A Crim R 237.

13 [2004] QCA 469.

14 [2009] NSWCCA 89 at [40]-[44].

individual and community fear about child safety, it also fuels both reasonable and disproportionate community responses. It is for that reason that general deterrence remains a prime sentencing consideration for Category 2 child abuse material. Other sentence considerations contained in section 16A remain important to varying degrees.

1. Neither of you have a record of previous convictions of any kind. That being said, your prior lack of offending is of lesser significance in offending of this nature. In Mouscas v R,17 the Court held that as the offence of possessing child pornography is frequently committed by persons of prior good character, it is legitimate for a court to give less weight to character as a mitigating factor, particularly, as general deterrence is necessarily important. This aspect of Price J's judgment was endorsed in DPP (Cth) v D'Alessandro18 in relation to Commonwealth offences.

1. Each of you pleaded guilty to the offences at the first available opportunity. Your early pleas have provided considerable utilitarian value by avoiding the need for a contested hearing and the potential calling of victims and other witnesses to give evidence. In your cases, I also accept the early plea as some evidence of remorse. There was still considerable investigative work to be undertaken to view and categorise up to 3 years of conversations, however, the very early plea will result in an appropriate reduction of your sentence.

1. Courts are required to provide a transparent explanation of any sentences imposed, within reason. In addition to what has been referred to in shorthand as the Worboyes 19 considerations, you have both been in custody for nearly 2 years

17 [2008] NSWCCA 181.

18 [2010] VSCA 60.

19 See Worboyes v The Queen [2021] VSCA 169 for the utilitarian value of guilty pleas during the COVID-19 pandemic.

during the pandemic period, with the harsher custodial conditions that involves. This will be taken into account in the abovementioned, general way.

1. For the State offences, I will make a section 6AAA declaration to reflect the value of such an early plea.20 For Commonwealth offences, the sentencing discount is quantified as a percentage. Such is the usually accepted method of providing that transparency.21

1. The need for just punishment remains an important consideration and does not override any discounts given. Remorse, acceptance of responsibility, and a willingness to undertake rehabilitative therapy also confer further benefits. These considerations will be addressed later.

1. In the context of this offending, I note that Victim A (who provided a statement) was such a child that Her Honour Justice Simpson referred to in Booth. His disquiet at having been manipulated and exploited, and his extended family's grief at the events, are salutary reminders of the consequences such offending imposes on children.

1. The Court has received and read victim impact statements provided by further victims of your offending. Where no such statement is provided, the offending is no less serious. Their statements remind the Court of the usual and ongoing consequences of offending of this nature. The victim's families speak of their diminished trust in other members of the community in general. They also document the ongoing emotional issues your offending has caused.

1. Parents rightly believe that their primary duty is to protect their children from harm and to ensure that their individual potential is encouraged. It is a responsibility shared with the wider community where possible, but a parent has the day-to-day

20 Where imprisonment is concerned, section 6AAA of the Sentencing Act 1991 (Vic) provides that the court must state the sentence it would have been imposed had it not been for an offender's plea of guilty.

responsibility to ensure the safety of their children. There is no greater parental duty. Ensuring children are participating in community-based, child-centric, and safe educational activities is generally undertaken with that duty in mind. To have that activity invaded by the insidious harm perpetrated by this type of offending is destructive to parental confidence in being able to provide that safety. Knowing that the abuse continued for some days or months, and still not knowing what the consequences might be for them in the future would be a terrifying scenario for any parent.

1. This offending is also corrosive to a community's confidence and sense of wellbeing. The disquiet felt about offending such as this extends beyond the children and parents involved to the wider student cohort and community in general whose sense of safety is significantly diminished. As a result, the community's level of fear and distrust can increase. Many people, even innocent people, can become the subject of unfair gossip and innuendo. Fear can make reasonable community members unreasonable.

1. It is not suggested that these are aggravating circumstances for the offending behaviour, nor that the victim impact statements outline circumstances of aggravation. Rather, they serve to remind the Court of the usual consequences of offences such as these.

1. There are a number of considerations which generally increase the objective seriousness of most of the offences. It is convenient to first state them globally . Where they exist in a particular charge, I will reflect this in shorthand.

1. Where the offending is text-based, the contents are as detailed in the prosecution opening for each offence. This is classified as Category 2 offending on the INTERPOL Baseline System. Other offending which relates to child pornography images or video is categorised as Category 1 in the INTERPOL Baseline System. These images and videos are described in the prosecution opening. I have not

viewed those images, and no one has suggested that the descriptions are not accurate, nor individually, very serious examples of child exploitation material.

1. When assessing the objective seriousness of charges relating to the exchange or possession of child abuse material, the following criteria contained in the decision of Minehan v R22 are relevant to the descriptions of the Category 1 material. These criteria are consistent with the criteria outlined in the more recent case of Burton v R.23
   1. The nature and content of the material, including the age of the children and the gravity of the sexual activity or cruelty or physical harm portrayed.

1. Images exchanged by you displayed adults having non-consensual sexual activity with both male and female children. On some occasions, the sexual activity is of an aggressive or obviously forceful nature. Where either of the above is the case, the objective seriousness will be increased.
   1. The number of images or items of material and the number of different children depicted.

1. I note that in a number of the earlier child abuse material cases, there are observations of thousands of images. However, many of those cases do not specify a number of discrete images of different children nor the amount of copies.

1. My experience is that in many reported and unreported cases, an indeterminate number of copies of a single image are held, either on different devices, or saved in different files on one device. The number of discrete images is a far more useful barometer of objective seriousness.

1. In your cases, individual charges relating to the exchange, transmission or receipt of child abuse material, the number of images is relatively small. In the case of the possession charges, I accept that the number of different children depicted is an important consideration. This is not specified in the prosecution opening, however,

22 [2010] NSWCCA 140; (2010) 201 A Crim R 243 at [94].

the number of discrete images is contained in the outline. For each of you, the number of discrete images is significant.

1. In a case of possession, the offender's purpose, whether for his/her own use, sale or dissemination.

1. In this regard, I will take care to avoid any infringement of the principle pronounced in The Queen v De Simoni.24 It is clear from the detail relevant to each offence that many of the images referred to as being possessed are the same images relevant to charges of receiving or transmitting. The charges will be considered separately but consideration will be given to the matter that they are likely the same images when considering matters of accumulation or concurrency.
   1. In a case of dissemination/transmission, the number of personsto whom the material was disseminated/transmitted.

1. The charges against both of you relate to the transmission to one other person per offence.
   1. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.

1. Financial is not suggested in any offending relating to transmission. That Mr Heels committed some offences for emotional gain is not significant.
   1. The proximity of the offender's activities to those responsible for bringing the material into existence.

1. Apart from the offending concerning Victim A, there is no information of any proximity of your activities to those responsible for bringing the material into existence. Therefore, apart from Victim A, there is no such aggravating information. The images taken by Heels while he acted in a sexual manner toward

24 (1981) 147 CLR 383. In that matter, Gibbs CJ stated: the general principle that the sentence imposed on an of fender should take account of all the circumstances of the of fence is subject to a more f undamental and important principle, that no one should be punished for an offence of which he has not been convicted ... The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the of fence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence: ibid at [389].

children are referred to below. Those images are of concern as child abuse material.

1. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating, or transmitting the material

1. The level of planning, organisation and sophistication employed by you was relatively low notwithstanding the use of encrypted communication and requests to delete communications conveyed to some communicants. There was little attempt to hide the offending. You used your own devices and names. Similarly, the fact that you both acted together, but in a loosely organised fashion, is of minor significance.
   1. The risk of the material being seen or acquired by vulnerable persons, particularly children.

1. There is no evidence of there being such risk notwithstanding the employment of Heels in a teaching position.

1. I acknowledge that sections 49D and 49F of the Crimes Act 1958 (Vic) are standard sentence offences to which a standard sentence of 4 years applies. 25 The standard sentence is an appropriate sentencing consideration as is the 10- year maximum penalty for both offences, alongside other circumstances relevant to the offending.

1. Your Counsel submitted that this offending, that is, you surreptitiously filming yourself performing sexual acts behind children unbeknownst to them is at the lowest end of the scale for offences of this nature, reasoning that your offending was concealed from your victims. While this was true at the time of the offending, the nature of such offending is such that it almost invariably becomes known, either through parents, other children, the media during the course of investigation, or later.

25 See Crimes Act 1958 (Vic) ss 49D(2A) and 49F(2A).

1. Even though scrupulous care has been taken to anonymise each victim, there is little doubt that in time, they will come to know of the occurrence of the events and perhaps, their unwitting proximity to them. A number of schools are mentioned. Regardless, their families have to deal with the conundrum of how to deal with the events in both the short and long term.

1. In relation to the creation of child abuse material where images of real children were involved, consideration will be given to the State offences when considering accumulation in order to avoid double counting.

1. It is apparent that there is a degree of overlap between some of the Commonwealth and State offences concerning Mr Heels. A combination of Commonwealth and State offences is not uncommon in a child pornography matter.26 Although the offences overlap, they are not identical. Commonwealth offences focus on the internet and the role it plays as the heart of the child pornography industry, whereas these State offences are not concerned with the ultimate use to which films might be put at a later date.

1. While the children were unaware that their photographs were being taken while you were engaged in sexual activity in their presence, the filming led to those images being exchanged. Therefore, the totality of that offending is not substantially reduced, or even at all, by the fact that the children were unaware of the films being made. Justice Simpson's observation in Booth is particularly apt here.

1. It was submitted by Counsel for Heels that the Category 2 child abuse material offences are inherently less serious than the Category 1 child abuse material offences. The prosecution did not disagree. In general, this is often the case. However, much of the conversation between offenders was of an explicit, aggressive and violent nature concerning your apparent desires of non-

26 See R v Porte [2015] NSWCCA 174 at [55].

consensual sexual activity with young or very young children. This represents offending at the higher end of seriousness for Category 2 child abuse material and perhaps, on occasion, greater seriousness than what relatively benign Category 1 images may reflect.

1. Additionally, nearly all of those exchanges referred to a known victim, of whom photographs had been taken or downloaded. This is entirely different to fantasy conversations about fantasy children which may arguably be an example of lower objective seriousness. I find that your text exchanges about children with whom you had a professional or personal relationship is a circumstance which increases the objective seriousness of that particular offending. There is an inherent breach of trust and the damage that the breach entails.

1. In discussing each charge, any child victim's name will be anonymised by the use of an inconsequential initial. As noted above, I do not propose to repeat certain particulars contained in the prosecution opening. There is significant media interest in this matter and to repeat the conversations would be to further distribute child abuse material.

Offences on Indictment dated 18 August 2022 & sentences - Tristan Cullinan- Smayle

1. Count 1 on the Commonwealth Indictment dated 18 August 2022 provides that between 1 December 2017 and 13 December 2019, you used a carriage service to transmit communications to Victim A with the intention of procuring Victim A, a person under 16 years of age, to engage in sexual activity with you contrary to s 474.26(1) of the Criminal Code (Cth). I note you are to be sentenced taking into account s 16BA of the Crimes Act 1914 (Cth) ('schedule offence 1').

1. Victim A was aged between 14 and 17 years old at the time of the offending. When he was 14 years old, he accepted a friend request from you on the application, Snapchat. You did not know each other prior, but you subsequently engaged in general conversation. You asked about his interests, his sexual preference, and

exchanged personal details over a period of 2 to 3 months. Non-abusive photos were exchanged. Victim A came to see you as a person he could trust and talk to about personal issues.

1. In late 2018/early 2019, Victim A unfriended you. However, you persisted by contacting him on the application Instagram and eventually, contact was renewed. Between 1 December 2017 and 13 December 2019, you asked Victim A to meet you face-to-face on numerous occasions so that sexual activity could occur. Victim A was afraid and did not meet with you. It is not disputed that your communication with the Victim A on Snapchat and Instagram were intended to procure Victim A for sexual activity. The fact that he did not meet your demands to meet personally is of no assistance to you.

(i) Offence 1 on s 16BA schedule

1. In relation to this offending, the facts are that between 1 December 2017 and 13 December 2020, you sent between 6 to 12 photos of yourself naked and/or masturbating.

1. The facts for both offences, including the schedule offence, confirms a high degree of persistence and a significant continuation of offending throughout a lengthy period of more than 2 years while the child was in a formative stage of his development. The child was vulnerable, due to his age, and for other reasons. It can be inferred that you discovered this vulnerability in your discussions with him. Your manipulation of this vulnerable child was persistent, long term and significant.

1. You further encouraged the child to sexually abuse and send photos of his young nephew, who was aged about 2. He refused. According to prosecution's submissions, this request is not relied on with respect to the charged offence. It is a reflection, nonetheless, of the degree of your persistence and manipulation over time in the face of a child's vulnerability and shows a degree of ruthless calculation.
2. Taking into account the years over which the offending occurred, your persistenc e toward a vulnerable child and your requests that he involve other children in your activities, I find that this offending is particularly egregious.

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1. Count 2 on the Indictment is that between 1 December 2017 and 20 September 2019, you used a carriage service to cause child pornography material to be transmitted from Victim A to yourself contrary to s 474.19(1) of the Criminal Code (Cth). I observe that you are to be sentenced taking into account section 16BA of the Crimes Act 1914 (Cth) ('schedule offences 2 and 3').

1. From the commencement of indecent communications with Victim A, you requested, on at least 12 occasions, that he send to send you nude photos or videos of him masturbating or engaging in sexual activity with adult men, or children of either sex.

1. In response, Victim A sent more than 12 photos and videos of himself. 2 such files were located on your phone. They were created in March 2018 and are the subject of this charge.

1. You also sent messages asking whether he had access to other children and, on numerous occasions, to engage in sexual activity with others, especially children, and to take photos and videos of that activity to send.

(ii) Offences 2 and 3 on s 16BA schedule

1. These offences relate to your encouragement of Victim A to continue sending pornographic images of himself when he was almost, or after, he turned 16. Your activities prior to that time provide context for what was obviously a long-term plan. For the reasons outlined above, this is a similarly serious offence.
2. The sentence is 4 years imprisonment.

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1. Count 15 on the Indictment is that on 7 May 2021, you used a carriage service to transmit child abuse material of Victim A contrary to section 474.22(1) of the Criminal Code (Cth).

1. On that date, you used the application Telegram to send Mr Heels, your co- offender, seven child abuse videos of Victim A. These include videos of Victim A masturbating and penetrating his anus. The images are serious examples of Category 1 child abuse material.

1. You forwarded such materials to Heels who replied 1 minute later expressing knowledge that the child was, as he said, 'illegal' before expressing a wish to perform a sexual act on the child. It is obvious that this transmission was intended to sexually arouse your co-offender. The consequences for the victim were apparently irrelevant to you. This offending related to an event over 1 day. While the number of images was relatively small, they concerned a known 14 to 15-year- old child and constituted a breach of trust. For these reasons, I find that the offending is objectively serious.

1. The individual sentence to be imposed is 2 years and 6 months imprisonment.

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1. Count 22 on the Indictment is that on 21 May 2021, you used a carriage service to transmit child abuse material to Victim A contrary to section 474.22(1) of the Criminal Code (Cth).

1. On that date, you again used the application Telegram to send six image files containing both Category 1 and 2 child abuse material to Victim A (who was then aged 18).
2. The prosecution opening documents images of a child being orally penetrated and performing oral sex on an adult male. The children in the materials are between about 1 to 14 years of age. The Category 1 images are at the higher level of seriousness for child pornography; however, the number of images is limited. The fact that they were forwarded to a young adult from whom you were seeking further pornography is, again, a feature of your manipulative and self-centred behaviour. The offence occurred over the span of a day. This offence, similarly, is objectively serious.

1. The individual sentence to be imposed is 3 years imprisonment.

1. While the above offences are each of varying degrees of seriousness, there will be a degree of concurrency to reflect the totality of offending against or involving Victim A.

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1. Count 3 on the Indictment is that between 1 April 2020 and 22 June 2020, you 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 you contrary to section 474.26(1) of the Criminal Code (Cth). I note that you are to be sentenced taking into account section 16BA of the Crimes Act 1914 (Cth) ('schedule offence 4').

1. Victim B was 15 years old at the time of the offending. He had been a student at the talent studio where your co-offender worked as a singing teacher, pianist, and director. You contacted Victim B on Instagram and chatted about the child's musical theatre performances and other daily interests.

1. In about May 2020, you escalated the conversations to sexual topics and encouraged the child to masturbate in particular ways. You also encouraged the child to send photos of him complying with those requests and to send other intimate images of himself to you.
2. Victim B complied and sent you five sexually explicit photos and videos of himself. At your request, video calls were also undertaken. At the end of conversations, you requested that messages be deleted so as not to be found out. This is evidence that you were well aware of the serious criminality of your communications.

1. There is no dispute that your communications with Victim B on Instagram - including messages where you asked the child to videocall with you - were intended to procure B for sexual activity. This is evidenced by your plea. As with other charges, your manipulative behaviour was exploitative and self-centred, disregarding the harm undoubtedly caused to Victim B.

(iii) Offence 4 on s 16BA schedule

1. In all, you sent between four and seven sexually explicit photos and videos of yourself, naked with a sex toy and/or masturbating. This offending is in the context of the primary offence.

1. Taking into account the number of weeks over which your offending extended, the age of the child and your persistence as noted in the schedule offending, this offence is objectively serious.

1. I sentence you to 3 years and 6 months imprisonment.

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1. Count 4 on the Indictment is that between 1 April and 22 June 2020, you used a carriage service to cause child abuse material to be transmitted to yourself from Victim B contrary to s 474.22 of the Criminal Code (Cth).

1. During that time, you persuaded Victim B to transmit intimate, Category 2 child abuse images on Instagram. Screen capture of the images were saved to your iPhone on 16 and 17 December 2020. This offence is of slightly less objective seriousness.
2. The sentence to be imposed is 2 years and 6 months imprisonment.

1. While the offences above involving Victim B are each relatively serious, there will be a degree of concurrency to reflect the totality of offending against or involving Victim B.

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1. Count 7 on the Indictment is that between 3 May 2021 and 20 May 2021, you used a carriage service to transmit child abuse depicting Victim C contrary to s 474.22 of the Commonwealth Criminal Code.

1. At the time of offending, Victim C was 10 years old. He performed in a local musical theatre production which you took part in. Mr Heels was the musical director. On four or five occasions, Heels gave Victim C a lift to and/or from rehearsals.

1. Charge 7 is a rolled-up one which reflects four occasions on which you sent abuse material to Heels in the form of Telegram messages containing written descriptions of Victim C. These are Category 2 child abuse materials.

1. On 3 May 2021, Heels sent you a video of a male child, (not Victim C), attending a piano lesson. The focus was on the child's shorts. An exchange occurred between the two of you in which significant child abuse discussion occurred. This child abuse material related to Victim C. The details of the discussion, which are not challenged as being child abuse material, are as contained in the prosecution opening. Three other explicit sexual conversations concerning the child occurred in that time frame.

1. Although this is Category 2 offending, and the child was apparently unaware of the conversation, activities such as this have the potential to enliven contact offending and therefore increased the risk to Victim C and the community's welfare in general. Each of you were ultimately involved in actual or attempted contact offending in this timeframe.
2. Taking into account the 3 weeks over which the offending occurred, the age of the child, the fact that the child was personally known to you and your co offender, the breach of trust involved and the number of child abuse material conversations, this offence is objectively serious.

1. The sentence I will impose is 2 years imprisonment.

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1. Charge 8 is that between 3 May 2021 and 21 May 2021, you used a carriage service to transmit child abuse material relating to Victim D contrary to s 474.22 of the Criminal Code (Cth).

1. Victim D lives in the United Kingdom and has no known connection to either you or Mr Heels. This is a rolled-up charge reflecting two occasions on which you sent child abuse material to Heels, in the form of Telegram messages containing written descriptions and explicit sexual conversations concerning Victim D.

1. As mentioned earlier, the community's safety is put at risk by such behaviour. However, considering the limited number of conversations and time frame and lack of other aggravating circumstances, I find that this offence is of moderate seriousness.

1. The sentence I impose for this offence is 1 year and 6 months imprisonment.

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1. Count 9 on the Indictment is that between 4 May 2021 and 6 May 2021, you used a carriage service to transmit child abuse material relating to Victim E contrary to s 474.22 of the Criminal Code (Cth).

1. Victim E was 10 years old at the time of the offending. He had been attending a studio connected to Mr Heels for five years with his family. His mother's Facebook

page included the offender, Heels, as a friend, thus giving him access to the page. Heels accessed several photos of Victim E and other children.

1. Charge 9 is a rolled-up charge reflecting three occasions on which you sent child abuse material to Heels in the form of Telegram messages containing written descriptions of Victim E alongside a video depicting an unknown male child.

1. On each occasion, the conversations related to explicit sexual activities that you and your co-offender state desired to undertake with the child. The contents of each conversation are depraved and disgusting.

1. The fact that the child was known to you increases the unease that the child, the child's family and the community rightly feel as a result of this breach of trust. The number of exchanges over 2 days is relatively limited and constitutes an offence of seriousness.

1. The individual sentence I will impose is 2 years imprisonment.

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1. Count 10 on the Indictment is that on 6 May 2021, you transmitted child abuse material relating to Victims I and J using a carriage service contrary to s 474.22(1) of the Criminal Code (Cth).

1. Victims I and J were twin boys who were two years old at the time of your offending. Their family members were engaged in the entertainment industry but not otherwise known to either you or your co-offender. A family member posted non- child abuse images of the children on a social media account.

1. Those images were accessed by you and sent to your co-offender via Telegram. The images were accompanied by sexually explicit conversation concerning the children. The conversations are again confronting.
2. While the offending was committed only over the course of one day, there were two victims. I find that the offending is serious.

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1. Count 11 on the Indictment is that on 6 May 2021, you transmitted child abuse material depicting Victim F using a carriage service contrary to s 474.22(1) of the Criminal Code (Cth).

1. Victim F was two months old at the time of the offending. Her mother maintained a Facebook account and was a personal friend of both you and your co-offender. On the day of offending, Mr Heels sent you a photo of Victim F. You subsequently discussed the child in the form of Category 2 child abuse.

1. This offending occurred over the course of a day and concerned a very young child of a family known to you. As I have stated, offending such as this is a confronting breach of trust that causes disquiet in the family who may, in turn, rightly fear that such conversation encourages contact offending. This was a serious offence.

1. The sentence to be imposed is 2 years imprisonment.

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1. Count 12 on the Indictment is that on 6 May 2021, you transmitted child abuse material depicting Victim G contrary to s 474.22(1) of the Criminal Code (Cth).

1. Victim G was 13 years old at the time of your offending. His family knew both you and your co-offender through their involvement in local musical theatre performances and were friends with you on Facebook.

1. Between November 2019 and March 2020, you and Mr Heels drove Victim G to and from rehearsals. The child subsequently commenced private singing lessons with Heels either personally at the residence, or online.
2. On 6 May 2021, you sent Heels a number of video files containing Category 1 child abuse material. While these did not depict Victim G, they prompted explicit and demeaning child sexual abuse Telegram messages concerning invasive and demeaning sexual acts on Victim G.

1. As I have said, offending such as this is a confronting breach of trust. The victim was known to you and sexual conversations of a serious child abuse nature were discussed over the course of 1 day. This is objectively serious.

1. The sentence to be imposed is 2 years imprisonment.

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1. Count 13 on the Indictment is that between 6 May 2021 and 26 May 2021, you transmitted child abuse material depicting Victim H using a carriage service contrary to s 474.22 of the Criminal Code (Cth).

1. Victim H was 11 years old at the time of the offending. He took drama lessons at one of the studios you had access to. His mother and other family members were Facebook friends with your co-offender. The family uploaded several family photos to their Facebook page.

1. Count 13 is a rolled-up charge reflecting two occasions on which you sent Category 2 child abuse materials to Heels in the form of Telegram messages containing written descriptions of Victim H.

1. The descriptions are explicit sexual references to the child and sexual activity desired to be undertaken on the child and with others. A large number of images of the child were exchanged to facilitate child abuse conversations although the images, themselves, were not sexual.

1. For these reasons, the offending, once again, is a confronting breach of trust that caused disquiet in the family. This is especially the case as you were both in

physical contact with the child from time to time. The offending spanned several weeks, and the breach of trust amounts to a further aggravating circumstance.

1. The individual sentence to be imposed is 2 years and 6 months imprisonment.

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1. Count 14 on the Indictment is that on 7 May 2021, you used a carriage service to transmit child abuse material depicting Victim K using a carriage service contrary to s 474.22 Criminal Code (Cth).

1. Victim K was 9 months old at the time of the offending. His father knew both you and your co-offender through involvement in local musical theatre productions and Facebook.

1. You first sent a photo of Victim K to your co-offender. This prompted an exchange of messages on Telegram which involved explicit, desired sexual activity with the baby and other adults. These conversations amounted to Category 2 child abuse material.

1. Again, the fact that the family was known to you increases their disquiet and that of the general community. Given the breach of trust, the offending is objectively serious.

1. The individual sentence I will impose is 2 years imprisonment.

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1. Count 16 on the Indictment is that between 7 May 2021 and 21 May 2021, you used a carriage service to transmit text-based child abused material depicting Victim L contrary to s 474.22 of the Criminal Code (Cth).

1. Victim L was 8 years old at the time of the offending. His first piano teacher was Mr Heels. Victim L believed that Heels would stand next to him during his lessons

and that he always had a mobile phone and iPad with him. He never saw Heels take any photos or videos.

1. This is a rolled-up charge covering four occasions_._ You first sent child abuse material to Heels in the form of Telegram messages containing written descriptions of Victim L, and descriptions of sexual activity with the child.

1. Images were also exchanged to facilitate the conversations, including an image of a female baby (not Victim L) being vaginally penetrated by an adult male. This image is included in charge 5.

1. Each conversation contains child abuse material discussing, in explicit terms, desired sexual activity with Victim L and others. Once more, the conversations are disgusting, depraved and obscene.

1. This offence is to be taken into account on charge 16. On 3 May 2021, further Telegram conversation of a sexual nature between Heels and yourself occurred concerning Victim L. A request was also made for the transmission of further photographs. The schedule offence confirms that this was far from isolated offending concerning Victim L.

1. Again, the fact that the child and family were known to you is a breach of trust which increases their disquiet and that of the community. Given the range of days over which this offending occurred, the breach of trust involved and those matters in the schedule, the individual sentence I impose will be 3 years imprisonment.

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1. Count 17 on the Indictment is that on 14 May 2021, you used a carriage service to transmit child abuse material depicting Victim M contrary to s 474.22 of the Criminal Code (Cth).
2. Victim M was 10 years old at the time of offending. He and his younger brother knew both Heels and you through local musical theatre productions. Their mother was your Facebook friend.

1. On 8 May 2021, Victim M had a private singing lesson with Heels at your home address. On 14 May 2021, you sent Heels four photos of both children & prompted an exchange of Telegram messages between the pair of you in which you discussed explicit sexual activity with Victim M.

1. Taking into account a single day of offending alongside the significant breach of trust as the child had been to your home, this offence is serious.

1. The sentence to be imposed is 2 years and 6 months imprisonment.

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1. Count 18 on the Indictment is that on 14 May 2021, you transmitted child abuse material depicting Victim O using a carriage service contrary to s 474.22 of the Criminal Code (Cth).

1. Victim O was 9 years old at the time of the offending and had been attending music classes since he was 3 years old. Mr Heels was one of the child's music teachers and would use an iPad, he said, to find song lyrics. He placed it on the piano stand during their lessons. This behaviour is covered in Heels' indictment. Namely, charges 5, 22, 23, 24.

1. Heels sent you two photos of the child which prompted an exchange of Telegram messages between the two of you. The conversations contained explicit sexual references concerning Victim O and are serious forms of child abuse material. The consequences for Victim O's parents, as noted in their victim impact statement, reminds the court of the significant psychological harm this offending causes.
2. Given these matters, the duration of the offending having spanned one day, the content of the material and the significant breach of trust involved, this offence is objectively serious.

1. The individual sentence to be imposed is 2 years and 6 months imprisonment.

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1. Count 19 on the Indictment is that on 18 May 2021, you transmitted child abuse material depicting Victim P using a carriage service contrary to s 474.22(1) of the Criminal Code (Cth).

1. Victim P was 4 years old at the time of the offending. His mother was Facebook friends with you. As in previous charges, his mother uploaded family photos of the child which were not child abuse materials. You then sent your co-offender Telegram messages which contained Category 2 child abuse material concerning Victim P.

1. The offending occurred over a single day and once again, involved a breach of trust.

1. Accordingly, this offence is serious and the individual sentence to be imposed is 2 years and 6 months imprisonment.

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1. Count 20 on the Indictment is that on 20 May 2021, you transmitted material depicting Victim Q using a carriage service contrary to s 474.22(1) of the Criminal Code (Cth).

1. Victim Q was 5 years of age at the time of the offending. He began taking lessons at the beginning of 2021 at the studio where Heels previously worked.

1. Heels sent you 4 photos of Victim Q which prompted an exchange of messages on Telegram. The messages concerned imagined sexual activity with Victim Q and

are Category 2 child abuse materials. Spanning a day and involving a serious breach of trust by an employee against a child, the offence is serious.

1. The sentence is 2 years and 6 months imprisonment.

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1. Count 21 on the Indictment is that on 20 May 2021, you used a carriage service to transmit child abuse material depicting Victim R contrary to s 474.22 of the Criminal Code (Cth).

1. Victim R was 7 years old at the time of the offending. He was a student taught by your co-offender. Photos were taken of Victim R at the studio from time to time. Heels would subsequently send you 6 photos of Victim R. This, again, prompted an exchange of messages on Telegram containing sexually explicit references to Victim R. These conversations amounted to Category 2 child abuse material. Like the other Category 2 conversations, they are depraved and obscene.

1. The circumstances to be taken into account when assessing seriousness include the single day of offending and the breach of trust involved.

1. The individual sentence to be imposed is 2 years and 6 months imprisonment.

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1. Count 5 on the Indictment is that between 2 May 2021 and 26 May 2021, you transmitted child abuse material using a carriage service contrary to s 474.22 of the Criminal Code (Cth).

(a) multiple occasions on which you transmitted child abuse material to Benjamin Heels in the form of images and video files depicting unidentified child victims; and

(b) 5 occasions where you transmitted child abuse material to Heels, in the form of Telegram messages describing unidentified child victims.

1. In total, you sent Heels 637 image and video files containing child abuse material. The images and videos depict child victims, both male and female, aged from approximately two to three months to 14 years. They represent very serious forms of Category 1 material.

1. For example, on 3 May 2021, you sent Heels 17 image and video files that depict 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.

1. In addition to the above, Heels sent Telegram messages to you in which he discussed the images he received from you and made explicit sexual refences to the children. Many of the conversations relate to having multiple sexual encounters with young or very young children. These conversations were prompted by your transmission of images and many of them anticipate aggressiv e acts and or engaging in sexual activity in public places. In addition to the Category 2 conversations, Heels also sent a number of images of students at Fountain Gate Secondary College to you.

1. These images prompted further child abuse conversations between you and your co-offender where you make specific refences to some students. Much of the conversation transmitted by you relates to excitement at seeing or imagining children being raped by adults.

1. This offence is a very serious form of the offence charged taking into account the number of images of real children, the degree of physical sexual abuse being suffered by the children, and the duration of the offending spanning 3 weeks.

1. The individual sentence to be imposed is 6 years imprisonment.

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1. Count 6 on the Indictment is that between 3 May 2020 and 20 May 2020, you caused child material to be transmitted to yourself using a carriage service contrary to s 474.22(1) of the Criminal Code (Cth).

1. This is a rolled-up charge capturing all of the child abuse material sent to you by Heels and identified below in the summary of facts supporting counts 6, 8, 10, 14- 21 and 24-27 against Heels.

1. The prosecution case is that you intentionally caused Heels to send you the material by asking him to do so, and that you actively engaged in your exchanges of messages with him about sexual activity with children. Many of the children were personally known to you and your co-offender.

1. The aggravating features of this offence include the range and dates of offending, the number of children involved, and the significant breach of trust your offending entailed. The sentence is 5 years and 6 months imprisonment.

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1. Count 23 on the Indictment is that on 27 May 2021, you possessed child abuse material obtained in the form of data held on a data storage device and used a carriage service to obtain that material contrary to 474.22A(1) of the Criminal Code (Cth).

1. Charge 23 is a rolled-up charge, reflecting the possession of child abuse material by you on your Apple iPhone 12 and Western Digital portable hard drive. In total, you possessed 3,019 image and video files containing child abuse material. The table below provides a breakdown of those files:

Table 4: Child abuse material possessed by Cullinan-Smayle

1. Taking into account all known considerations and the material possessed on this day, this offence represents a very serious example of the charged offence. The individual sentence to be imposed will be 6 years imprisonment. The images contained in this offence overlap with many of the images contained in other offences. I will give due consideration to this when considering accumulation. I turn now to your co-offender's offending.

Offences on Indictment dated 18 August 2022 & sentences - Benjamin Heels

1. Mr Heels, Count 1 on the Indictment is that between 1 January 2021 and 14 May 2021, you intentionally touched Victim L, a child under the age of 16 years, and the touching was sexual and contrary to community standards of acceptable conduct contrary to section 49D of the Crimes Act 1958 (Vic) ('sexual assault').

1. Additionally, Count 2 is that between the same dates, you engaged in sexual activity in the presence of Victim L, in that you masturbated your penis, knowing that Victim L was present and that such activity, in the presence of Victim L, was contrary to community standards of acceptable conduct. This is an offence against section 49F(1) of the Crimes Act 1958 (Vic).

1. Victim L is referred to above in charge 16 against your co-offender. Victim L was an 8-year-old student where you were his piano teacher. You used your phone and iPad so as to be able to record students during lessons without their

knowledge. Photos of the child taken at the studio were located on your mobile phone.

1. These rolled-up charges reflect three occasions where you exposed and masturbated your penis during private piano lessons with this child (charge 2) and then touched your penis onto the child's back (charge 1). Evidence of these offences in the form of three video files stored on your mobile phone are as detailed in the prosecution opening. It is not disputed that you filmed the three videos, each showing a sexual assault, and that you engaged in sexual activity in the child's presence. It was submitted, and there is no evidence otherwise, that at the time, the child was unaware of your behaviour in his presence.

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1. Count 3 on the Indictment is that, between the same dates, you further engaged in sexual activity in the presence of a child under the age of 16 years contrary to section 49F(1) of the Crimes Act 1958 (Vic).

1. Evidence of this offence was in the form of a video file filmed between the above dates stored on your mobile phone. You stood behind Victim L and exposed your penis before subsequently masturbating yourself. Again, it is submitted, and there is no evidence otherwise, that at the time of the offending, the child was unaware of your behaviour in his presence, notwithstanding the surreptitious filming.

1. The prosecution did not seek to be heard on this issue. However, my observation is that the family are now aware of the offending against their child. The child, who was previously a pupil of yours, would have become aware of the extremely distasteful criminality of your offending pretty quickly on your arrest and on you ceasing to be his teacher. The offending was brazen, with no apparent regard for the child's welfare, notwithstanding your role as teacher. The breach of trust for the child and the family was significant.
2. The fact that the child and family were known to you, and the fact that the child was a pupil of yours, increases their disquiet and that of the whole community. Your breach of trust, the age of the child, and the physical actions you took alongside the filming of your abuse, amount to aggravating features. The filming of the acts is separate to the transmission of the film to your co-offender, which is referred to in the offence below.

1. For these reasons, charges 1, 2 and 3 are offences of significant objective seriousness. You will be sentenced to concurrent sentences. Each sentence is 4 years imprisonment.

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1. Count 9 on the Indictment is that between 3 May 2021 and 21 May 2021, you transmitted material depicting Victim L using a carriage service - that material being child abuse material - contrary to section 474.22(1) of the Criminal Code (Cth).

1. Charge 9 is a rolled-up charge, reflecting four occasions on which you sent child abuse material, as referred to above, to your co-offender, Tristan Cullinan-Smayle, in the form of videos depicting the same child. This prompted your co-offender to send you images of a much younger female child being vaginally penetrated by an adult male. These images prompted pornographic exchanges with your co- offender on Telegram which were sexually explicit and Category 2 child abuse material.

1. I acknowledge that the following matters are to be taken into account in sentencing on charge 9: That between 1 January and 14 May 2021, you produced child abuse

material for use through a carriage service. You produced each of the four videos described above (containing Category 1 child abuse material) with the intention of using a carriage service to transmit these videos to your co-offender or others.

1. The sentence on this offence is 4 years and 6 months imprisonment and will be the subject of some concurrency with the other offences concerning Victim L.

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1. Count 5 on the Indictment is that on 26 March 2021, you intentionally engaged in sexual activity in the presence of another victim, Victim O, a child under 16 years of age, knowing that Victim O was present and that such activity in the presence of Victim O was contrary to community standards of acceptable conduct. Again, such an offence is contrary to section 49F(1) of the Crimes Act (Vic).

1. Victim O was also a student of yours . He was 10 years old at the time of your offending. You filmed a video and stored it on your mobile phone. The video depicts an adult male filming himself and a male child. They are sitting side-by- side, and the child is singing. The adult male masturbates himself over his clothing.

1. The defence submission that the offending is of lower objective seriousness due to the child not being aware of the sexual activity at the time is rejected. The fact that the event was filmed, and therefore, a record of the event was made (and ultimately shared), reduces the strength of this argument. Once more, the observations of Justice Simpson in Booth are directly relevant.

1. Taking into account your breach of trust and the single event, this is an offence of some objective seriousness.

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1. Count 22 on the Indictment is that between 14 May 2021 and 21 May 2021, you sexually assaulted Victim O contrary to section 49D(1) of the Crimes Act 1958 (Vic). Relevantly, Count 23 is that between the same dates, you engaged in sexual activity in the presence of Victim O contrary to section 49F(1) of the Crimes Act (Vic).

1. These are rolled-up charges, reflecting two occasions on which you exposed and masturbated your penis during private singing lessons with Victim O (charge 23) and then touched your penis upon his back (charge 22). Each event was filmed. My observations with respect to charge 5 are repeated for this offending. These offences are of mid-range objective seriousness for the offences charged. Your breach of trust, the age of the child, and the physical actions you undertook while filming are all aggravating features.

1. The sentence for each of these charges, individually, is 3 years imprisonment. These sentences will attract a limited period of accumulation to reflect the different occasions in which offending occurred.

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1. Count 24 on the Indictment is that between 18 May 2021 and 21 May 2021, you transmitted child abuse material depicting Victim O using a carriage service contrary to section 474.22(1) of the Criminal Code (Cth).

1. This is a rolled-up charge reflecting two occasions on which you sent child abuse material to your co-offender, in the form of videos depicting Victim O alongside Telegram messages containing written descriptions of another child.

1. On each occasion, you sent Mr Cullinan-Smayle videos you filmed of the child and you as described above. The video contains Category 1 child abuse material and Mr Cullinan-Smayle both responded and encouraged sexually explicit messages. You also sent Cullinan-Smayle two photos of the same child, prompting similar encouragement and sexually explicit observations on 2 occasions. Those

conversations, as with all of those contained in the prosecution opening, are explicit, pornographic, demeaning, and obscene.

(ii) Offence 2 on s 16BA schedule

1. I acknowledge that the following matters are to be taken into account in sentencing for charge 24 on the Indictment: That between 26 March 2021 and 21 May 2021, you produced child abuse material for use through a carriage service. You produced the three videos described above with the intention of using a carriage service to transmit the videos to Tristan Cullinan-Smayle, Jarrad Lyons and others. Each video contains Category 1 child abuse material.

1. This offending is of a serious level of objective seriousness. The features which increase that seriousness include the time frame over which the offending occurred and the schedule offence's inclusion that the offending was not isolated nor confined to offending with Cullinan-Smayle.

1. The individual sentence I will impose is 4 years and 6 months imprisonment.

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1. Count 6 on the Indictment is that on 3 May 2021, you used a carriage service to transmit child abuse depicting Victim S contrary to section 474.22(1) of the Criminal Code (Cth).

1. Victim S was aged 13 years old at the time of your offending and was a student at Fountain Gate Secondary College. On 3 May 2021, you sent Cullinan-Smayle a video of the child during a piano lesson which was taken without the child's knowledge. It was not a pornographic image. This prompted an exchange of Telegram messages between you and your co-offender. The detail of the conversations is as contained in the prosecution opening. It contains Category 2 child abuse material in that it makes explicit sexual reference to the child.
2. The features of the offending which increase the objective seriousness include the offending occurring on a single day and your breach of a pupil's trust.

1. The sentence imposed for this offence is 2 years imprisonment.

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1. Count 10 on the Indictment is that between 3 May 2021 and 21 May 2021, you transmitted child abuse material depicting Victim D using a carriage service contrary to section 474.22(1) of the Criminal Code (Cth).

1. Victim D had a publicly accessible Instagram account and Cullinan-Smayle sent you an image from it. Victim D was not known to either of you. This is a rolled up charge encompassing the 2 occasions where you sent your co-offender Telegram messages containing written descriptions of Victim D.

1. This is an offence of some seriousness taking into account the number of messages and number of days over which the offending occurred. The sentenc e to be imposed is 1 year and 6 months imprisonment.

1. Count 13 on the Indictment is that between 5 May 2021 and 6 May 2021, you used a carriage service to transmit child abuse material depicting Victim E contrary to section 474.22(1) of the Criminal Code (Cth).

1. Victim E was 10 years at the time of your offending and had been a student of yours for five years. Cullinan-Smayle sent you Category 3 pictures of Victim E and later, a video of an unknown child engaged in sexual activity with an adult male.

1. You both exchanged messages on Telegram concerning Victim E. The messages concern explicit and extensive sexual conversations involving the child and, once again, reflect Category 2 child abuse material.

1. I further acknowledge that the following matters are to be taken into account in sentencing for charge 13 on the Indictment: That on 6 May 2021, you produced child abuse material through a carriage service. You produced and sent a video to Mr Cullinan-Smayle of you in a studio space at exposing your penis and masturbating inside a toy tent. This exchange resulted, in part, to the conversations described above.

1. The schedule offending increases the objective seriousness generally. The breach of trust is an aggravating circumstance of the offending and the sentence to be imposed is 2 years imprisonment.

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1. Count 14 on the Indictment is that on 6 May 2021, you transmitted child abuse material depicting Victim F using a carriage service contrary to section 474.22 of the Criminal Code (Cth).

1. Victim F was two months old at the time of the offending. Her mother was a Facebook friend of both you and your co-offender. On this date, you sent a picture of the child to the co-offender. Conversations amounting to Category 2 child abuse material subsequently occurred (see charge 11 on the Indictment for Cullinan- Smayle). Features increasing the objective seriousness of this offending include the single event, the breach of a family's trust and the age of the child.

1. I will impose a sentence of 2 years imprisonment.

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1. Count 15 on the Indictment is that on 6 May 2021, you transmitted child abuse material depicting Victim G using a carriage service contrary to section 474.22(1) of the Criminal Code (Cth).

1. Victim G was 13 years of age. He attended a number of singing lessons both online and at the home of both you and your co-offender. On the 6th of May 2021, a

number of Category 1 child abuse video files were sent by your co-offender concerning other children. This prompted a Category 2 child abuse conversation concerning Victim G, the subject of this charge.

1. The conversation is detailed in the prosecution opening. Like the other Category 2 conversations, they are detailed, extensive and depraved. The features which make this offending more serious include the single day of offending a, breach of a friend and a pupil's trust.

1. The sentence to be imposed on this count is 2 years imprisonment.

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1. Count 16 on the Indictment is that on 6 May 2021, you transmitted child abuse material depicting Victim I and J using a carriage service contrary to section 474.22(1) of the Criminal Code (Cth).

1. Victims I and J are twin boys who were two years old at the time of the offending. Their parents were not known to either of you. On 6 May 2021, your co-offender sent you a photo of the toddlers on Telegram. You subsequently discussed the toddlers in explicit sexualised terms, as detailed in the prosecution opening.

1. The features which increase the objective seriousness of this offending include the single day on which the offending occurred and there being more than one victim.

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1. Count 17 on the Indictment is that on 6 May 2021, you transmitted child abuse material depicting Victim T using a carriage service contrary to section 474.22(1) of the Criminal Code (Cth).

1. Victim T was five years old at the time of the offending. He was photographed and videoed by his uncle, Victim A, while he was in the bath. Some videos and images

of Victim A and Victim T came into the possession of Cullinan-Smayle, who was grooming Victim A for sexual activity. He sent them to you on 6 May 2021. A Telegram conversation between the two of you ensued. Once more, the conversation contained explicit and degrading Category 2 child abuse material. The details are as contained in the prosecution opening.

1. You were aware that the image was obtained through a communicant of your co- offender.

1. The sentence to be imposed is 2 years and 6 months imprisonment.

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1. Charge 18 on the Indictment is that between 6 May 2021 and 26 May 2021, you transmitted child abuse material depicting Victim H using a carriage service contrary to section 474.22(1) of the Criminal Code (Cth).

1. Victim H was 11 years old at the time of the offending. He and his brother were students of yours. Their family members were Facebook friends with you. Charge 18 is a rolled-up charge reflecting two occasions where you sent Category 2 child abuse material to your co-offender in the form of Telegram messages containing written descriptions of Victim H. These conversations are explicit and degrading in relation to Victim H.

1. Taking into account the range of days over which the offending occurred and the breach of trust it entailed, this is an offence of similar objective seriousness to others in this category.

1. The sentence I impose will be 2 years and 6 months imprisonment.

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1. Count 19 on the Indictment is that on 7 May 2021, you used a carriage service to transmit child abuse material depicting Victim K contrary to section 474.22(1) of the Criminal Code (Cth).

1. Victim K was 9 months old at the time of offending. His father was Facebook friends with you and your co-offender. On 7 May 2021, your co-offender sent you a photo obtained from Facebook. It was not child abuse material. This, however, prompted an exchange of messages between you concerning the baby.

1. This is an offence of seriousness taking into account the single day on which the offending occurred, the age of the child and the breach of the family's trust your conduct involved.

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1. Count 20 on the Indictment is that on 7 May 2021, you used a carriage service to transmit child abuse material depicting Victim A contrary to s 474.22(1) of the Criminal Code (Cth).

1. Victim A was 17 years old at the time of the offending and is the uncle of Victim T (see count 17, above, and the subject of charges 1, 2, 15 & 22 concerning your co-offender). When Victim A was 14 years old, he became Snapchat friends with Cullinan-Smayle.

1. On 7 May 2021, Cullinan-Smayle sent you a Telegram message which contained child abuse material of the then 15-year-old Victim A. That prompted an exchange of text messages describing Victim A which were further examples of Category 2 child abuse between you and your co-offender.

1. Taking into account the single day on which the offending occurred, I will impose a term of imprisonment of 2 years.

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1. Count 21 is that between 14 May 2021 and 20 May 2021, you transmitted child abuse material depicting Victim C using a carriage service contrary to section 474.22(1) of the Criminal Code (Cth).

1. Victim C was 10 years old at the time of your offending. He was in musical productions of which you were a musical director and occasionally, you drove him to or from productions.

1. Count 21 is a rolled-up charge reflecting two occasions on which you sent Category 2 child abuse material to your co-offender. You commented on child abuse material of another child but made descriptions of Victim C in that context. Taking into account the range of days on which the offending occurred and the pupil's breach of trust it is a serious example of the offence charged, the sentenc e for this offence is 2 years imprisonment.

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1. Count 25 on the Indictment is that between 18 May 2021 and 20 May 2021, you used a carriage service to transmit child abuse material depicting Victim P using a carriage service contrary to section 474.22(1) of the Criminal Code (Cth).

1. Victim P was 4 years old at the time of your offending. Victim P's circumstances were detailed in count 19 concerning your co-offender.

1. Charge 25 is a rolled-up charge reflecting two instances in which you sent child abuse material to your co-offender in the form of a video of you masturbating over a photo of the child; and sent Telegram messages containing written descriptions of that child. Both the image and the descriptions are Category 2 child abuse materials. They are demeaning and once again, depraved.

1. I acknowledge that the following matters are to be taken into account in sentencing charge 25 on the Indictment: That on May 2021, you produced child abuse material for use through a carriage service. You produced the video described above containing Category 2 child abuse material with the intention of using a carriage service to transmit the video to your co-offender.

1. This is objectively serious given the range of days over which the offending occurred and the inclusion of the schedule offence indicating that it was not an isolated incident.

1. The sentence is 2 years and 6 months imprisonment.

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1. Count 26 on the Indictment is that on 20 May 2021, you transmitted child abuse material depicting Victim R using a carriage service contrary to section 474.22(1) of the Criminal Code (Cth).

1. Victim R was 7 years old at the time of your offending. He was a student of yours. Photos were taken at the studio in which the child was wearing his school uniform.

1. On 20 May 2021, you sent your co-offender 6 such Category 3 photos of the child. That prompted an exchange of messages on Telegram which were Category 2 child abuse messages detailed in the prosecution opening. Taking into account the single day on which the offending occurred and the breach of the pupil's trust, the sentence I will impose is 2 years and 6 months imprisonment.

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1. Count 27 on the Indictment is that between 3 May 2021 and 26 May 2021, you transmitted child abuse material depicting Victim Q contrary to section 474.22(1) of the Criminal Code (Cth).
2. Victim Q was 5 years old at the time of your offending. Details of his circumstances were canvassed above at Count 20 concerning your co-offender. Victim Q started taking theatre lessons where you were a teacher at the beginning of 2021. On 20 May 2021, you sent your co-offender 4 photos of the child. That prompted a further Category 2 child abuse conversation concerning explicit sexual activity with the child.

1. Taking into account the days on which the offending occurred and the breach of the pupil's trust, the sentence is 2 years and 6 months imprisonment.

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1. Count 8 on the Indictment is that between 3 May 2021 and 26 May 2021, you used a carriage service to transmit child abuse material contrary to section 474.22(1) of the Criminal Code (Cth).

1. This is a rolled-up charge covering multiple occasions where you transmitted child abuse material to your co offender in the form of image and video files depicting unidentified child victims.

1. The files and videos consisted of 16 files depicting male victims between the ages of 2 months to 14 years being sexually abused by an adult male. On a further 10 occasions, you transmitted Telegram messages to your co offender describing unidentified child victims. The conversations are depraved and describe violent child abuse. The images described are equally confronting.

1. This is an offence of above mid-range objective seriousness taking into account the range of days over which offending occurred, the age range of the children, the number of images and the nature of the images depicted.

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1. Count 7 on the Indictment is that between 3 May 2021 and 26 May 2021, you used a carriage service for child abuse material to be transmitted to yourself contrary to section 474.22(1) of the Criminal Code (Cth).

1. Charge 7 is a rolled-up charge capturing all of the child abuse material sent to you by Cullinan-Smayle and identified above in the summary of facts supporting charges 5 and 7-21 against your co-offender.

1. You intentionally caused Cullinan-Smayle to send you the material by asking him to do so. You also actively engaged in the exchanges of messages about sexual activity with children.

1. This is an offence of above mid-range objective seriousness taking into account the range of days, the number of conversations or images sought, the ages of the children, and the nature of sexual activity depicted.

1. The sentence to be imposed is 5 years and 6 months imprisonment.

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1. Count 4 on the Indictment is that between 5 February 2021 and 20 May 2021, you transmitted child abuse material to Jarrad Lyons contrary to section 474.22(1) of the Criminal Code (Cth).

1. Charge 4 is a rolled-up charge reflecting 10 occasions on which you transmitted child abuse material to another co-offender, Lyons, in the form of images, video files and text messages depicting or describing known and unknown child victims. Lyons has been charged with possession and receiving such images and conversations. He is a vulnerable person of limited cognitive ability. The details are as set out in the prosecution opening. They contain explicit and violent descriptions of child abuse.

1. I acknowledge that the following matters are to be taken into account in sentencing for charge 4 on the Indictment: That between 5 February 2021 and 20 May 2021, you used a carriage service to cause child abuse material to be transmitted to yourself.

1. Offence 5 reflects three occasions involving Mr Lyons sending you Category 2 child abuse material in the form of SMS, Kik and Telegram messages describing unknown children. You intentionally caused Lyons to send you the material by asking him to do so, and actively engaging in the exchange of messages about sexual activity with children. The details are as set out in the prosecution opening.

1. This is an offence of significant seriousness given the range of days the offence was committed over, the age of the children and the array of sexual activity depicted. Your behaviour towards Lyons was manipulative in seeking engagement in abusive activity. The schedule indicates continuation and planning, to some degree.

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1. Count 11 on the Indictment is that between 5 February 2021 and 14 May 2021, you transmitted child abuse material using a carriage service contrary to section 474.22(1) of the Criminal Code (Cth).

1. Charge 11 is a rolled-up charge reflecting 3 occasions where you transmitted child abuse material to an unknown person who went by the username "Tom KikiBunn" by way of Telegram text messages, describing unknown child victims. The detail of the child abuse material is as contained in the prosecution opening.

1. I acknowledge that the following matters are to be taken into account in sentencing charge 11 on the Indictment: That between 5 May 2021 and 14 May 2021, you used a carriage service to cause child abuse material to be transmitted to yourself. Between the same dates, 'Tom KikiBunn' sent child abuse material to you at your request.

1. Taking into account the range of days the offending spanned, the age of the children and the array of sexual activity exchanged, the offending is of a relatively high order of objective seriousness. The schedule offence indicates a continuation and planning to some degree.

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1. Count 12 on the Indictment is that between 5 May 2021 and 14 May 2021, you used a carriage service to transmit child abuse material contrary to section 474.22(1) of the Criminal Code (Cth).

1. Between 5 and 14 May 2021, you used Telegram to communicate with a person with the username "Jay Banga". Charge 12 is a rolled-up charge reflecting four occasions on which you transmitted child abuse materials in the form of images and videos to this unknown person.

1. The materials depicted known and unknown child victims and included Telegram messages describing known and unknown child victims. The messages are depraved conversations dealing with young children being violated sexually and are further instances of Category 2 child abuse material.

1. I acknowledge that the following matters are to be taken into account in sentencing for charge 12 on the Indictment: That between 5 May 2021 and 14 May 2021, you used a carriage service to cause child abuse material to be transmitted to yourself.

Between those dates, Jay Banga transmitted Category 2 materials to you in the form of describing known and unknown children. You intentionally caused this user to send you the material by actively engaging in messages about sexual activity with children.

1. This offending is of a high order of seriousness given the range of days it spanned, the age of the children, and the array of sexual activity depicted. The schedule offence indicates continuation and planning, to some degree.

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1. Charge 28 on the Indictment is that on 27 May 2021, you possessed child abuse material in the form of data contained in a data storage device and you used a carriage service to obtain or access the material contrary to s 474.22A(1) of the Criminal Code (Cth).

1. This is a rolled-up charge that reflects the possession of child abuse material by you on your Apple iPhone 12, Apple iMac computer and Verbatim 16GB USB. In total, you possessed 820 and video files containing child abuse material. The table below provides a breakdown of those files:

Table 5: Child abuse material possessed by Heels

INTERPOL Category Category 1

298 unique images & 113 unique videos Total: 411

Category 2

276 unique images &

133 Unique videos Total: 409

Total child abuse materials: 820.

1. This is a very serious example of the charged offence. It is noted that some of the images are likely to be the images which were the subject of the above transmission offences.

1. The sentence I impose for this offence is 6 years imprisonment.

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1. I turn now to a discussion of each of your backgrounds and personal circumstances. I will then address considerations of totality and minimum terms of parole.

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Personal circumstances, presentation and prospects

1. Mr Cullinan-Smayle, a report was prepared by forensic psychologist Dr Gee based on a personal interview he conducted with you. You reported an unremarkable but happy childhood with conflict arising when you were an older teenager. You reported a good work ethic in the food industry over many years. You further reported that you came out as a gay man when you were about 20 years of age and that you have cohabited with your partner and co-offender since approximately 2010.

1. Your physical health is marred only by a history of epilepsy for which you receive medication. You report no significant substance abuse issues apart from some experimentation when you were younger. You report an enduring history of sexually arousing thoughts and attraction to pubescent boys that predated your long-term relationship. You refer to your partner in loving terms indicating that, in your perception, you and he are 'very co-dependent'.
2. When asked about the offences of seeking to procure young people for sexual activity, you told Dr Gee that you did not have any intention to meet your victims. Dr Gee was sceptical as to whether this intention may have changed had you not been apprehended by police. This is speculation but relevant to his later observation of a paraphilic disorder, rather than a paedophilic one. The lack of actual contact offending defines the difference although your persistence is noted.

1. You accept that your involvement in accessing child pornography in various forms was both wrong and against the law. However, your understanding of the consequences for the victims of your offending is limited. Your behaviour, as is often the case in such matters, was self-focussed and to some extent, remains so. Dr Gee opines that while you do not present with any psychopathology suggesting any psychotic illness, you do have several features consistent with a Personality Disorder.

1. While Dr Gee is not of the view that your presentation (including your history of sexually aberrant behaviour reflected in the charges) fulfils the diagnostic criteria for paedophilic disorder, you clearly present with an enduring paraphilia disorder. You admit that you remain sexually attracted to pubescent boys. Your attraction ultimately drove all of your offending in one way or another. In the circumstances, your lack of a paedophilic diagnosis borders on irrelevant.

1. When assessing your risk of future offending, specifically, for sexual violence offending, the risk assessment undertaken by Dr Gee suggests that you currently present with, at least, a moderate risk of sexual reoffending in the future, but not in a sexually violent or contact manner. He suggests that any future offending is more likely to be related to your involvement with prepubescent male children that you may engage with on social media or through child exploitation material. The risk is increased if such content is being shared with other offenders known to you.

1. Finally, it is noted that while your cognitive distortions, interpersonal difficulties and personal pathology may have somewhat compromised your mental health, your

behaviour across the offending has a direct and causal connection to your diagnosed paraphilia. This observation does not reduce your moral culpability for the offending, and it was not suggested that it did.

1. When commenting on the consequences of a custodial sentence on your mental health, Dr Gee suggests that the fact that you are currently housed with your co- offender offers some protection from imprisonment weighing heavily on you. The Court has no jurisdiction over such placement.

1. In your current placement, you work in the kitchen six days a week. You and your partner are also able to apparently organise musical theatre activity by way of recreation or entertainment. No doubt, from a custody management point of view, this is a desirable situation. I do not know whether it is a desirable situation from a rehabilitation perspective. The authorities will undoubtedly consider this in due course.

1. It is further observed that while you accept that you need help dealing with your offending behaviour, you have little insight as to what this help might consist of. Notwithstanding that, Dr Gee makes some very generalised observations and recommendations as to forensic services intervention and sexual offender programs. Dr Davis suggests co-counselling with your co-offender on relationship issues as a precursor to other therapeutic intervention. It is expected that therapeutic intervention will occur in the context of a custodial setting, prior to release.

1. It is not submitted that any Verdins principles are relevant to your sentence.

1. Mr Heels, your personal background is largely contained in the psychologist report of Dr Michael Davis which was tendered by consent. Dr Davis also gave evidence. Neither the contents of his thorough report nor his evidence was challenged to any great extent by the prosecution.
2. You report a relatively untroubled upbringing and relationship with your family. Your sexual development and identification as a gay man was, perhaps, made difficult by the attitude of your father, but you reportedly had good support from other members of your family. You left high school after year 11 and subsequently completed your education at TAFE where you studied music composition. Your state that music theatre is your obsession. It became your chosen career in which you apparently excelled.

1. Your physical health is adequate though marred by mild asthma and type 2 diabetes, both of which are medically controlled. Your psychiatric history is more complex. You report historical issues with depression, and you have previously been diagnosed with a bipolar disorder. Dr Davis doubts the accuracy of this diagnosis, suggesting a borderline personality disorder with some complex features, combined with a persistent or major depressive disorder. Your depression is managed while you are in custody with medication which you report is usually adequate, and you report no substance abuse issues.

1. You and your co-offender have been together in a committed relationship for 13 years. You categorise the relationship as sexually 'open'. When asked about the offending, you told Dr Davis that, from your perspective, a sexual interest in children was not something you contemplated until you were urged to participate in watching child pornography with your partner. Prior to that, you had expressed disapproval of his interest. You report that you, in effect, eventually capitulated in order to please him. Your partner's counsel submitted that this accords with his instructions. However, you accept that the taboo nature of the topic excited you.

1. You deny ever being physically, sexually abusive toward a child, outside of the current charges. You readily admit that you knew the offending was wrong at the time you indulged in it. You indicated that your co-offender downloaded child pornography from the dark web and shared it with you initially. You agree that, at times, you shared those images with others. You knew that that was illegal.
2. You indicated that you were unaware that exchanging what you call fantasy stories with your partner was against the law. It is noted that the gravamen of these offences is the fact that the extreme Category 2 materials were shared utilising the internet, being the 'carriage service' for the purposes of these charges. However, it is also noted that these offences are part of a wider set of behaviour by you involving contact offending against children and the viewing and exchanging of child pornography depicting extreme acts against children. The Category 2 offending between you and your co-offenders is only part of much wider offending for both of you.

1. You expressed remorse, albeit, a limited understanding of the consequences for the victims of your offending and their families. You express confidence that you will not reoffend and suggest that regard for your family would deter you in the future. It is difficult to know how this might assist, but in your favour, you express a desire not to reoffend. In apparent contradiction, you wish to remain in a relationship with your co-offender notwithstanding his interest in illegal material. Dr Davis makes sensible recommendations.

1. A thorough set of psychological tests produced some further and more troubling observations. In summary, Dr Davis suggests that your presentation is consistent with depressed mood, suicidal ideation, anxiety, variable mood suspiciousness, antisocial behaviours, and prominent borderline personality features.

1. Unsurprisingly, Dr Davis observes a paedophilic disorder, which was apparently latent until enlivened by your engagement with child pornography which was, as discussed, encouraged by your partner. This disorder is reportedly secondary to a paraphilic disorder and associated with a sexual masochistic disorder.

1. In assessing your risk of reoffending utilising static and dynamic risk assessment tools, Dr Davis conducted a thorough assessment of your personality profile, including your problematic borderline personality issues, and your more positiv e

willingness to participate in one-on-one counselling. An obvious and complicating matter relevant to your risk of reoffending includes the fact that the offending was committed with your partner, with whom you still have a relationship.

1. Dr Davis, again, unsurprisingly notes that your offending against children was assisted by your unrestricted access to them in your role as teacher. In summary, Dr Davis opines that while it is difficult to predict the potential for reoffending or the future for any offender, he suggests that you have a low-to-moderate risk of contact sexual reoffending and a moderate-to-high risk of further child abuse material reoffending.

1. Statutory restrictions against you teaching in the future will reduce that risk. He observes that any future child pornography offending is more likely to occur in the form of written fantasies with your co-offender. It is observed that this is the basis of much of the offending before the court today.

1. Dr Davis makes sensible recommendations for psychiatric assistance to address depression and one on one counselling to address the risk of sexual reoffending in general. He recommends this rather than group therapy for the reasons outlined in his report. He suggests that due to the relationship issues with your co-offender and partner, which is obviously associated with these charges, relationship counselling for both of you may be of initial assistance.

1. The above observations constitute a complex set of circumstances for those whose duty it will be to consider appropriate custody management and treatment considerations. I recommend Dr Davis's report to Corrective Services as a basis for future considerations.

1. It is no longer submitted that any Verdins considerations are particularly relevant to your sentence.

1. Given the existence of multiple victims, it is accepted by both counsel that it is appropriate for there to be a degree of accumulation on the terms of imprisonment to reflect the separate criminality and impact upon each individual victim. That being said, due to the number of charges, some degree of concurrency will be required to give appropriate effect to the principle of totality. This is to ensure that the total sentence is not a crushing one which may reduce any incentive for rehabilitation.

1. In reflecting the need to impose a sentence that reflects the objective seriousness of each individual offence, separate sentences are above. Where a single victim is involved in more than one charge, such as, for example, a victim of a State sexual assault charge also being a victim of the offence of transmission or solicitation, the period of accumulation will reflect the fact that the objective seriousness of the assault contemplates, for example, the act of filming the assault. As a result, accumulation of these matters will be less in order to avoid double-counting.

1. This must also be the case where there are multiple victims in a rolled-up charge. That is to say, accumulation must be limited to avoid double-counting where the same victims are the subject of transmission charges.

1. In other areas, there is a need to provide some accumulation in order to recognise that offences were committed against individual victims and that their own circumstances must be acknowledged. Due to the large number of separate offences, expression will be given through a period of accumulation on a number of concurrent sentences for separate victims. It ought not be thought that by doing so, I am not recognising the individual offending. This is for the purpose of avoiding an unwieldy sentence construction. I acknowledge that the overall sentence must reflect the total criminality involved, which, as I have described, is of a remarkably high order.
2. I propose to first sentence Mr Heels on the State offences (as a group), state a non-parole period, and then provide a section 6AAA declaration as the Sentencing Act 1991 (Vic) requires. It is to be noted that there will be a period of accumulation between the State and Commonwealth offences for the reasons stated above.

1. I will then impose sentences for the Commonwealth offences, and, as required, set those sentences with discrete commencement dates and a single non-parole period.27 The non-parole period will be calculated with regard to the period of the sentences as a whole, that is, the relevant State and Commonwealth offences considered together. That way, the non-parole period to total Commonwealth term ratio will be less than usual but will nevertheless constitute a 65% non-parole to total term ratio for all charges.

1. I have considered the obvious that much of the offending was similar to both of you. However, Heels committed some contact offences and transmitted material to others. Cullinan-Smayles sough contact. Some differences in sentences arise as a result.

1. Finally, I acknowledge that for Commonwealth charges, section 6AAA of the Victorian Sentencing Act does not apply. It is an accepted practice for Courts to indicate a discount for an early plea, either by a statement of the amount a sentence has been reduced, or by indicating a percentage reduction.28 I have allowed a significant 25% reduction on the Commonwealth sentences to reflect the utilitarian assistance of the early pleas of both offenders and to also reflect the difficult circumstances which the administration of justice finds itself in at this time.

27 Crimes Act 1914 (Cth) s 19AB.

28 In Xiao v R [2018] NSWCCA 4 at paragraphs [279]-[280], the New South Wales Court of Criminal Appeal expressed the view that it is desirable, in the interests of transparency, that any discount given for a guilty plea in the sentencing of a f ederal offender be specified.

1. On counts 1, 2 and 3 concerning Victim L, you are sentenced to 4 years

imprisonment with a non-parole period of 3 years. This is the base sentence.

1. On counts 5, 22, 23, you are sentenced to 3 years imprisonment on each count with a non-parole period of 2 years. These counts are each to accumulate on the base sentence. The period of accumulation for each count is 3 months.

1. The total effective sentence for the State charges is therefore 4 years and 9 months. I direct a total non-parole period of 3 years imprisonment.

1. Pursuant to section 6AAA of the Sentencing Act 1991 (Vic), had it not been for your plea of guilty, I would have imposed a term of imprisonment of 7 years imprisonment with a non-parole period of 5 years.

1. On count 9 and the schedule offence, Commonwealth offences concerning Victim L, you are sentenced to 4 years and 6 months imprisonment to commence on 30 September 2024.

1. On charge 24 and the schedule offence concerning Victim O, you are sentenced to a period of 4 years and 6 months imprisonment to commence on 31 March 2024.

1. On count 6 concerning Victim S, you are sentenced to 2 years imprisonment.

1. On count 10 concerning Victim D, you are sentenced to 1 year and 6 months imprisonment.

1. On count 13 and the schedule offending concerning Victim E, you are sentenced to 2 years imprisonment.

1. On count 14 concerning Victim F, you are sentenced to 2 years imprisonment.

1. On count 15 concerning Victim G, you are sentenced to 2 years imprisonment.
2. On count 16 concerning Victims I & J, you are sentenced to 2 years imprisonment.

1. On count 17 concerning Victim T, you are sentenced to 2 years and 6 months imprisonment.

1. On count 18 concerning Victim H, you are sentenced to 2 years and 6 months imprisonment.

1. On count 19 concerning Victim K, you are sentenced to 2 years imprisonment.

1. On count 20 concerning Victim A, you are sentenced to 2 years imprisonment.

1. On count 21 concerning Victim C, you are sentenced to 2 years imprisonment.

1. On count 25 and the schedule offence concerning Victim P, you are sentenced to 2 years and 6 months imprisonment.

1. On count 26 concerning Victim R, you are sentenced to 2 years and 6 months imprisonment.

1. On count 27 concerning Victim Q, you are sentenced to 2 years and 6 months imprisonment.

1. Counts 6, 10, 13, 14, 15, 16, 17, 18, 19, 20, 21, 25, 26 and 27 are to commence 3 years from the date of sentence, specifically, on 31 March 2026.

1. On count 4 and the schedule offence, you are sentenced to 4 years imprisonment.

1. On count 11 and the schedule offence, you are sentenced to 4 years imprisonment.

1. On count 12 and the schedule offence, you are sentenced to 4 years imprisonment.

1. Counts 4, 11 and 12 are to commence 4 years from the date of sentence, specifically, 31 March 2027.
2. On count 28, you are sentenced to 6 years imprisonment to commence 5 years from the date of sentence, specifically, 31 March 2028.

1. On count 7, you are sentenced to 5 years and 6 months imprisonment to commence on 31 March 2028.

1. On count 8, you are sentenced to 6 years imprisonment to commence on 31 March 2028.

1. The total effective sentence is 11 years imprisonment. The total non-parole period is 7 years and 3 months. On counts 3, 5, 22 and 23, I sentence you as a serious sex offender and order that this designation be entered into the records of the Court.

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1. Mr Tristan Cullinan-Smayle, the sentence is as follows:

1. On counts 1 (and the schedule offence), 2 (and the schedule offence), 15 and 22 concerning Victim A, I sentence you to 4 years imprisonment, 4 years imprisonment, 2 years and 6 months imprisonment and 3 years imprisonment, respectively. Counts 1, 22 and 15 are to commence on the date of sentence, specifically, 31 March 2023. Count 2 is to commence on 31 March 2024.

1. On counts 3 (and the schedule offence) and 4 concerning Victim B, I sentence you to 3 years and 6 months imprisonment and 2 years and 6 months imprisonment, respectively. These sentences are to run concurrently with each other and will commence 2 years from the date of sentence, specifically, 31 March 2025.

1. On count 7 concerning Victim C, I sentence you to 2 years imprisonment.

1. On count 8 concerning Victim D, I sentence you to 1 year and 6 months imprisonment.

1. On count 9 concerning Victim E, I sentence you to 2 years imprisonment.

1. On count 10 concerning Victims I & J, I sentence you to 2 years imprisonment.
2. On count 11 concerning Victim F, I sentence you to 2 years imprisonment.

1. On count 12 concerning Victim G, I sentence you to 2 years imprisonment.

1. On count 13 concerning Victims H, I sentence you to 2 years and 6 months imprisonment.

1. On count 14 concerning Victim K, I sentence you to 2 years imprisonment.

1. On count 16 and the schedule offence concerning Victim L, I sentence you to 3 years imprisonment.

1. Counts 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20 and 21 are to each commence 3 years from the date of sentence, specifically, 31 March 2026.

1. On count 5, you are sentenced to 6 years imprisonment to commence on 31 March 2027.

1. On count 6, you are sentenced to 5 years and 6 months imprisonment.
2. On count 23, you are sentenced to 6 years imprisonment.

1. Counts 6 and 23 are to commence 4 years from the date of sentence, specifically, 31 March 2027.

1. The total effective term of imprisonment is 10 years. The non-parole period is 6 years and 7 months imprisonment.

1. I order the forfeiture of all electronic devices used in the commission of the offences.

1. I order that you both be subject to Sex Offender Registration Act 2004 (Vic) reporting obligations for life.