SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - persistent sexual abuse, grooming and aggravated production and possession of child exploitation material - offender was first victim's stepparent and was acting effectively in loco parentis to second victim - prosecution case overwhelmingly strong - consideration of victim safety - abhorrent offending - sentencing in relation to Commonwealth and Territory offences - nine years and six months' imprisonment imposed, with six-year non-parole period

Crimes (Sentencing) Act 2005 (ACT), ss 7, 35(4)

Crimes Act 1900 (ACT), ss 56, 64(3), 65

Crimes Act 1914 (Cth), ss 16A, 17A

Legal Aid ACT (Offender)

1. [Dominic McFadden], you have been convicted on your pleas of guilty to three counts of a sexual nature.

(a) CAN 3139/2025: Use of a carriage service to groom a person under the age of 16 for sexual activity, contrary to s 474.27(1) of the Criminal Code (Cth), the maximum penalty for which is 15 years' imprisonment.

(b) CAN 7959/2025: Persistent sexual abuse of a young person under special care, contrary to s 56 of the Crimes Act 1900 (ACT), the maximum penalty for which is 25 years' imprisonment.

(c) CAN 3136/2025: Use of a child over 12 years for the production of child exploitation material (aggravated), contrary to s 64(3) of the Crimes Act 1900, the maximum penalty for which is 13 years' imprisonment, 1300 penalty units, or both.

1. An additional offence of aggravated possession of child abuse material contrary to s 65 of the Crimes Act 1900 (CAN 3138/2025) is to be taken into account in sentencing you for the offence of aggravated use of a child over 12 for the production of child exploitation material. The maximum penalty for that offence is nine years' imprisonment, 900 penalty units, or both.
2. As one of the offences for which you stand to be sentenced is a Commonwealth offence, I need to structure the sentences to accommodate that complexity.
3. First though, I will summarise the facts on which you are to be sentenced in these remarks. I will refer to the biological niece of your partner as V1 and your partner's biological daughter as V2.

1. The first charge, namely using a carriage service to groom a child under the age of 16 years (CAN 3139/2025), relates to your engaging in sexualised conversations with V1 while she was still residing in the Philippines. At the time, she was 14 years old. That offending occurred over a number of months in 2022.
2. The full extent of your offending in respect of this charge is set out in detail in the statement of agreed facts which was tendered on the sentencing hearing before me (Annexure A to these reasons). That offending only came to an end when you were confronted by your ex-wife with her knowledge of what was occurring. As a result, you lost access to your own biological daughter.
3. However, after V1 moved to Australia with her mother and came to live with you and your wife in Canberra for a period, your offending resumed.
4. The charge of persistent sexual abuse of a young person under special care (CAN 7959/2025) relates to your conduct with V1 over a period of approximately two years and eight months between July 2022 and March 2025.
5. During this time, you were effectively in loco parentis in relation to V1. The sexual activity between you occurred largely in the house where you, your partner and V1 resided.
6. Although the sexual acts did not involve penile-vaginal intercourse, they did involve a large number of other sexual acts which occurred on a regular basis after V1 came to reside with you. You paid her for her sexual acts with you.
7. The full extent of this offending is set out in detail in Annexure A. The last sexual act committed upon V1 during that period of time occurred on 18 February 2025. On that date, you asked to perform cunnilingus on V1. She made up an excuse, telling you that she was still on her period and that she did not want you to perform cunnilingus on her. You asked whether you could touch her vagina and she agreed to touching over the top of her clothing. V1 went into your room and, at your request, she pinched your nipples and used nipple clamps. You then touched her buttocks over her underwear. She was wearing only her bra and underpants. V1 then placed a massage gun on the side of your penis until you ejaculated. During the whole of that time, you kept asking the victim whether she wanted you to ejaculate now.
8. The bank records of V1 reveal that, between 26 February 2022 and 9 February 2025, multiple cash transfers ranging from $10-$350 were transferred from your account to the account of V1.
9. During the course of your relationship, when V1 declined to engage in a particular sexual act with you, you said you would ask V2 to do it if she refused. V1 would then comply with your request and engage in sexual acts with you.
10. The charge of aggravated use of a child over 12 years for the production of child exploitation material (CAN 3136/2025) and the additional offence to be taken into account (aggravated possession of child abuse material: CAN 3138/2025) relate to the second victim, V2. V2 is your stepdaughter. You installed a camera in the bathroom ceiling directly over the shower for the sole purpose of capturing nude images of V2 in the shower.
11. The footage captured V2's breasts and face. She was 13 years old at the time. The footage was located in an application used for managing and remotely accessing video and audio from smart cameras.
12. The number of images is not known, however, at the sentencing hearing, the prosecution accepted that there is only a single video broken down into images frame by frame.
13. Accordingly, for the purpose of assessing the objective seriousness of this particular offending, I accept that it falls at the lower end of objective seriousness.

1. I acknowledge the sentencing principles which apply in respect of both Commonwealth and Territory offending. As Baker J observed in DPP v Bobb [2025] ACTSC 491, the task of structuring a sentence that is comprised of both Territory and Commonwealth offences is not easy.
2. I acknowledge the considerable assistance which I received from counsel for the prosecution and your own counsel, where they accepted that the initial submissions made from the bar table that the sentence for the Commonwealth offence could be imposed first was problematic.
3. As Baker J, in the same case referred to above, relevantly observed with respect to similar submissions (at [61]):

The difficulty with the prosecution's proposal is that s 62 of the Crimes (Sentencing) Act provides that the Territory sentence must commence on the date it is imposed, unless, relevantly, the sentence is accumulated on an "existing sentence", which is defined as an offence against "Territory law": see ss 70 and 71 of the Crimes (Sentencing) Act. Previous decisions which have imposed a Commonwealth sentence before a Territory sentence were cases in which the offender's presentence custody exceeded the sentence of imprisonment for the Commonwealth offence: see, for example, Morrison v Maher [2022] ACTSC 63; DPP v Wickes [2025] ACTSC 443 and DPP v Matas [2024] ACTSC 234. In those cases, s 62 was not breached because the Court was not imposing a future commencement date for offences against Territory law. (Section 19 of the Crimes Act 1914 (Cth) permits a future commencement date for offences against Commonwealth law.

4. One of the important considerations in sentencing for the Commonwealth offence is to be found in s 16A of the Crimes Act 1914 (Cth), namely that the court must impose a sentence of severity appropriate in all of the circumstances, taking into account all of the factors enumerated in s 16A(2) of that Act so far as they are relevant.
5. I must be satisfied that an immediate term of imprisonment is the only appropriate sentence. In your case, I am so satisfied. Your counsel has sensibly conceded that the threshold test in s 17A of the Crimes Act 1914 has been met.
6. With respect to the Territory offending, although the principles applicable have been stated in less prescriptive terms than in the Commonwealth legislation, they are similar.
7. Section 7 of the Crimes (Sentencing) Act 2005 (ACT), and the various authorities to which counsel referred me during submissions, emphasise the need for sentences imposed for sexual offences committed against children to give effect to the principles of general deterrence, accountability, denunciation, protection of the community and recognition of harm to the victims of those offences.
8. I turn now to your personal circumstances. You are 59 years old. You have no relevant prior convictions, and you have maintained stable employment in a government department for many years. You are married to your partner, the mother and aunt, respectively, of V2 and V1.
9. Your character referees speak of your good character, and all say that your offending is out of character. Regrettably, it is often the case that men of otherwise good character come before the courts regularly, charged with similar types of offences.
10. In your letter of 14 September 2025, you say you have come to understand the extent to which your offending has harmed both your victims and your wider family. That appears to be a progression from your reaction when first confronted with your offending, which was to deny and cast the blame on V1. In the end, the strength of the prosecution case was so overwhelmingly apparent that you sensibly did not continue to deny your guilt.
11. It is difficult to assess what the real prospect of rehabilitation is in your particular case. The fact that you and your wife behaved in the way you both did at the time when this offending first came to light is set out in Annexure A, which I do not intend to repeat here. However, that gives me little confidence that V2, who remains living in your house with your wife, would be in a safe environment if you were to return to the home any time soon.
12. One of the important considerations in sentencing you is to make it clear that this type of offending is abhorrent to the whole community and will be met by condign punishment.
13. When considering the structure of the overall sentences which need to be imposed, I must have regard to a number of competing factors. First, the need to ensure that the sentences I impose properly reflect the differing degrees of criminality involved in each of the offences. The most serious offence is undoubtedly the persistent sexual abuse of V1. There is a recognition that, to some extent, your offending against V1 on that count overlaps to some degree with the Commonwealth offence of grooming.
14. The legislative scheme which applies to discounts for pleas of guilty also differs somewhat for the Commonwealth and Territory offences. Whilst the Territory legislation requires the court not to make any significant reduction for a plea if the court considers the case is "overwhelmingly strong" (see s 35(4) of the Crimes (Sentencing) Act), which is plainly the case here, there is no such equivalent in the Commonwealth legislation.
15. However, I have reached the conclusion that there is very high utilitarian value to be placed on your pleas in circumstances where, otherwise, two young teenagers would have had to go through the trauma of a trial. For that reason, I have applied a discount of 20 percent to the sentence for the Commonwealth offence. For the Territory offences, bearing in mind the legislative constraint in s 35(4) of the Crimes (Sentencing) Act, I consider that a discount of no more than 10 percent is warranted.
16. Bearing in mind the complexities of sentencing in the statutory environment - in particular that, in the current sentencing regime in the ACT, I am not able to impose one overall head sentence and non-parole period - I will impose sentences for the Territory offences first. I will not impose a non-parole period in respect of those offences. However, I will set a much lower non‑parole period in respect of the Commonwealth offence, solely because of the need to ensure that the total period you will be required to spend in custody after you have served all sentences will not be crushing.
17. The total effective sentence will be nine years and six months' imprisonment, with an effective non‑parole period of six years (which is approximately 63 percent of the head sentence).

(1) For the offence of persistent sexual abuse of a young person under special care (CAN 7957/2025) contrary to s 56 of the Crimes Act 1900 (ACT), you are convicted and sentenced to 5 years, 7 months and 15 days' imprisonment (reduced by 10 percent from 6 years and 3 months in recognition of your guilty plea), to commence on 1 March 2025 and expire on 15 October 2030.

(2) For the offence of aggravated use of a child over 12 years for the production of child exploitation material (CAN 3136/2025) contrary to s 64(3) of the Crimes Act 1900 (ACT), you are convicted and sentenced to 4 years and 6 months' imprisonment (reduced by 10 percent from 5 years in recognition of your guilty plea), to commence on 1 September 2026 and expire on 28 February 2031.

(3) For the offence of use carriage service to groom a person under the age of 16 years (CAN 3139/2025) contrary to s 474.27(1) of the Criminal Code (Cth), you are convicted and sentenced to 4 years' imprisonment (reduced by 20 percent from 5 years in recognition of your guilty plea), to commence on 1 September 2030 and expire on 31 August 2034.

(4) In relation to the offence of use carriage service to groom person under 16 years (CAN 3139/2025), I fix a non-parole period of 6 months to commence on 1 September 2030 and expire on 28 February 2031.

(5) The offence of aggravated possess child exploitation material (CAN 3138/2025) is taken into account with the offence of use of a child over 12 years for the production of child exploitation material (CAN 3136/2025).

I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Kelly.

CC2025/3139: Use carriage service to groom person (a) On 4 August 2022, he placed an order with Fruugo for a wireless Wifi Clock camera. This product matches the description of an alarm clock.

(b) On 1 September 2022, he placed an order with The Spy Store for a Modern Wall Clock with hidden camera

(c) On 12 September 2022, the offender lodged a ticket with 'The Spy Store' due to the clock being faulty and a replacement clock was organised to be sent on 16 September 2022

1. When the victim was staying with the offender in Canberra, he took her to the Commonwealth bank to have a bank account set up for her. This was the account that he began to transfer money into. This account was opened on 16 September 2022.
2. The victim returned to Adelaide after this visit to Canberra. She remained in Adelaide for around 12 months. When the victim was in Adelaide, the offender would message her and sent her money, in exchange for images. The full content of these communications are not known.
3. The victim moved to Canberra after she turned 16 years old which was in November 2023. She began residing with the offender, [the offender's partner] and [V2] at their residence. During the period of time that the victim was residing with the offender, he engaged in numerous sexual acts with her in exchange for sums of money. The offender would transfer the money to the victim and referred to them as 'deals'. The deals would usually occur on a Tuesday or Thursday night when the offender and the victim were alone in the house.
4. The contact offending began with the offender asking for backscratches from the victim. The offender would offer the victim money in exchange for a back-scratch, and she would comply. The offender then began asking for the victim to show him her breasts. The offender asked the victim, questions about whether she would engage in sexual acts with him. When the victim would decline, the offender would make comments about asking [V2] to do it, if she was not willing to. The victim would then comply with the request.
5. The offender continued to request photographs of the victim and would provide her with money in exchange for those images. The offender began asking the victim to engage in other acts with him. At one stage, the victim blocked the offender due to the repeated requests for sexual acts. The offender confronted the victim while she was home alone. The victim agreed to engage in acts with the offender.
6. The offender would ask the victim to pinch his nipples really hard. This would occur either in his bedroom where he was lying down, or if no one was home downstairs. When the victim would do this, the offender would make noises. After she engaged in these acts, the offender would send her money. The offender usually paid her $100 but sometimes it was only $50 to pinch his nipples. This happened around 5 times. The victim was around 16 years old at the time of this offending. The offender would also ask the victim to use nipple clamps on him.
7. The requests of the offender increased to asking the victim to masturbate him. The victim agreed to masturbate the offender due to concern for her cousin and due to the money, he was providing her. The offender told the victim to watch pornography to learn how to masturbate him, but she did not do this and just engaged in the act. The offender told her that she was not very good at it, and made the victim use a massage gun on the side of his penis. The victim was required to use the massage gun until the offender ejaculated.
8. The offender began asking the victim whether he could play with her nipples or whether she would suck on his. The victim initially said no to this act. The offender expressed frustration at her for not doing what he asked her to do.
9. On one occasion, when the victim was home alone with the offender, he asked to suck on her nipples. The victim was afraid and agreed. The offender licked her nipples and then used the massage gun on the offender's penis. He ejaculated from this act. These acts continued for a period of time, before the offender began asking for additional sexual acts, including performing cunnilingus on the victim. The offender would use her cousin [V2] as motivation for engaging in the acts and remind her of the financial assistance that the offender and [the offender's partner] were giving the victim.
10. The victim began dating a boy in 2024. After this point, the offender began using the 'deals' in exchange for permitting the victim to spend time with her boyfriend. This occurred on a regular basis. The offender also continued to provide the victim with money in exchange for engaging in the 'deals' with him.
11. On 18 February 2025, the offender asked to perform cunnilingus on the victim. The victim made up an excuse and told the offender that she was still on her period and that she did not want him to perform cunnilingus on her. The offender asked whether he could touch her vagina, and she agreed, over the top of her clothing. The victim went to the offender's room, and at his request pinched his nipples and used the nipple clamps. The offender touched her buttocks over her underwear. The victim was wearing only her bra and underpants. The victim grabbed the massage gun and placed it on the side of the accused's penis, until he ejaculated. During this time, the offender was asking the victim whether she wanted him to ejaculate now. This was the last sexual act that was committed between the two.
12. Bank records for the victim capture the following amounts that were transferred from the offender's bank account to her own, which were for sexual acts:

1. The offender's phone download also revealed bookmarked websites included bathroom spy cameras, hidden car cameras, hidden clock cameras, smoke detector cameras.
2. Message exchanges were recovered from the phones of both the offender and the victim referencing "deals" made between them. These deals included:

(a) The victim squeezing the offender's nipples;

(b) The offender seeking to do sexual acts without the victim wearing "panties";

(c) The victim engaging in sexual acts without the victim wearing underwear;

(d) The offender engaging the victim in sexualised conversations;

(e) The victim using a massage gun on the offender's penis to the point of ejaculation;

(f) The victim masturbating the offender's penis;

(g) The offender licking and sucking the victim's breasts;

(h) The offender licked the victim's vagina;

1. During the arrangement of the sexual encounters, the following aspects were present:

(a) The offender seeking to have the victim ensure they were alone e.g. convincing her grandmother to go out of the house so that they would be alone;

(b) The offender exchanging "deals" for other expenses, such as paying the victim's phone bill;

(c) The offender agreeing to the victim spending times with her boyfriend, including permitting him to come to their house and driving her boyfriend home in exchange for "deals";

(d) The offender asking the victim to call him "daddy"

(e) The offender "sticking up" for the victim in arguments involving [the offender's partner]

1. On the day of the Canberra Show, the victim asked [the offender's partner] whether she could stay at her boyfriend's house. [The offender's partner] responded that she was not allowed to, however the victim did so anyway. The next morning, [the offender's partner] and the victim had an argument over her behaviour, and the victim apologised. [The offender's partner] told the victim that her boyfriend was making her very disrespectful and that she was going to speak to his parents. As a result, the victim disclosed to [the offender's partner] that she had told her boyfriend about what the offender had been doing to her. The victim told [the offender's partner] that her boyfriend had screenshots of the conversations where the offender had asked her to engage in sexual acts.
2. The victim left the residence, taking some of her belongings. After she left, [the offender's partner] called her numerous times and told her that she was going to send her back to the Philippines. [The offender's partner] located the victim at the IGA near her residence and confronted her about her knowledge of the camera. The victim disclosed that she was aware that [V2] had found a USB containing selfies and images of the two of them. [The offender's partner] told the victim that she had two options - either go back to the Philippines and never see her boyfriend again or she had to delete all of the evidence on her phone. The victim deleted the evidence off her phone.
3. On 24 February 2025 commencing at 11:23pm, [the offender's partner] and the offender had the following message exchange:

Just dropped [V1] off I need you to delete all old conversations with her and [V2]. And get rid of the all the cameras and stuff. I'm going to [redacted], I need time to process things

Don't believe everything you have been told babe as she is a manipulator and liar and changes stories to suit herself

I know/ I got her to delete the screenshots and your old

convo. But I'm not sure if that's everything. She shared everything to [redacted]. I don't want you to be in trouble

She's throwing me under the bus to deflect from her

1. On 25 February 2025 commencing at 9:14am, [the offender's partner] and the offender had he following message exchange:

She had been manipulating me and blackmailing for a little while now

1. A short time later, the victim received a message from her mother, [redacted], asking what she was doing and what was going on. The victim told her mother about the offending. The victim's mother had spoken to [the offender's partner] and challenged the victim on what she was disclosing and whether it was a means to get out of trouble for the way she was acting.

1. On 27 February 2025, the victim disclosed that the offender had hidden cameras in her residence to her teachers at school. As a result of those disclosures, a mandatory report was made, and police were called to the school. Police attended the school and spoke with the victim who repeated the above disclosures. Police spoke with [redacted], who also confirmed that she had located hidden cameras at her residence, and that she was scared to return to her home.

1. As a result of the disclosures, a search warrant was obtained for the offender's residence. This was executed at around 5:57pm on 27 February 2025. When police arrived at the residence, the offender and [the offender's partner] were both present. The offender told police that he was "wondering what [V1] was going to come back with" during the initial portion of the search warrant. The offender told police that it was not unexpected that police were there, and that he had suspected that the victim would try and make some sort of allegation against him. This was because they would not permit her to sleep at her boyfriend's residence, and she had been making threats against them. The offender told police that the victim was a very manipulative person and a liar.
2. On this occasion, police located the black wall clock with the camera in a box under a table in the garage. The offender was not arrested on this occasion.
3. A record of search warrant was conducted with the offender on 27 February 2025. The offender told police the following:

(a) The victim has been seeing a Muslim boy, and she had been sneaking into his residence. This male had come to their residence, but had told the victim his parents needed to be aware of the relationship

(b) They had made restrictions on ensuring they were not in the victim's bedroom on their own

(c) The main thing that had happened the other night, the victim had stayed the night at her boyfriend's house without their knowledge.

(d) Police asked the offender about the wall clock. The offender told police that he had bought the clock, and he assumed that they were aware he had it. The offender told police that he had purchased the clock for security purposes, so that if someone had come to the house, they would be aware of it. He had not bothered using it the hidden clock. He had never put this clock up.

(e) He denied that he had ever put hidden cameras in private locations, and that he would only have put them in places for security.

1. On 28 February 2025, the victim attended the Gunghalin Police Station. She disclosed to police that the offender had requested naked photographs of her as early as 2023. Police viewed screenshots of two conversations between the victim and the offender as seen below:

1. As a result of the additional disclosures by the victim, police obtained another search warrant for the residence of the offender. The warrant was executed on 1 March 2025 at around 1am. During that search, police located:

(a) A black massage gun and various clothes pegs in the bedside drawer of the offender;

(b) 2 x nipple clamps in the bedside table in the master bedroom

1. Forensic testing later confirmed the presence of the victim's DNA on the following locations and items:

1. The offender was shown the items seized by police. He told police that the nipples clamps belonged to him and [his partner]. He denied that he had used them with any other persons. He told police that he used the nipple clamps in a sexual context with [his partner]. The offender told police that the black massage gun was used for massage purposes on his tight muscles but also for sexual pleasure. The majority of times he would be by himself, and on other occasions [his partner] had used it on him.
2. A record of search warrant was conducted with the offender on 1 March 2025. He denied the allegations on 18 February 2025 and stated that the victim had made them up. He denied that he had ever contacted the victim about anything of a sexual nature.
3. The offender provided police access to his phone. Police confronted the accused about the text message conversation with him on 18 February 2025. The offender told police that the subject matter of the conversation was that she was wanting to do a "deal" with him, which entailed her wanting to a do an act of a sexual nature with him for money. The offender stated that the victim had instigated the conversation about the deal The offender stated that the victim had been manipulating and blackmailing him into those situations, in circumstances where the victim had made advances towards him and stated that if he didn't go along with it, she would tell [his partner]. The offender stated that the victim had manipulated him into committing sexual acts with her a couple of times.
4. The offender's phone was seized by police and reviewed. On that device, the following images of the victim were located:

(a) Image 1 - Created on device on 30/09/2023 4:59pm, stored within Facebook Messager. Showing the victim. The image showed the victim in a seated position, fully exposing breasts and vagina., with her face fully visible. Image appears to be taken in a non-bathroom room.

(b) Image 2 - Created on device 11/11/2023 1:45pm, stored within Facebook Messenger, showing the victim. Snapchat filter appears over her face being a black mask her eyes mouth and nose are visible, she is wearing a grey sweatshirt lifted up around her shoulders, breasts are fully visible, vagina is partially visible. Sitting down. Image appears to be taken in a non-bathroom room.

(c) Image 3 - Created on device 11/11/2023 2:03pm, stored within Facebook Messenger, showing the victim. Same grey sweatshirt lifted up around her shoulders as the above image. Face is fully visible. Breasts are fully exposed and visible. Image cuts around stomach. Image appears to be taken in a non-bathroom room.

1. The offender was arrested by police at the conclusion of the search warrant. He did not participate in a formal interview with police.

28 November 2025 At [31] of the judgment, after the word "Sentencing", in italics, insert a close parenthesis.