DPP v McKinley

2. The victim of your offending that is the subject of Charges 1 - 4 is your infant daughter, Lucy McKinley,[2] who was born in September 2020. The relationship between you and the victim's mother, Danielle Ross,[3] came to an end in October 2020, shortly following Lucy's birth. After your separation, you and Ms Ross reached an agreement for the shared care of your daughter. Under this arrangement, the victim was in your sole care a number of times each week, including overnight on some occasions.
3. Your sexual offending against your infant daughter occurred between 10 September 2020 and 8 September 2021, when you were between 21-22 years of age. The victim was under 12 months of age at the time of your offending.
4. When these reasons for sentence are published, your name together with the name of all family members will be anonymised to prevent any identification of the victim. It can only be hoped that the victim will never become aware of the crimes you committed against her.

1. The circumstances leading to the police investigation, and the ultimate discovery of your offending against the victim, are set out in the Summary of Prosecution Opening dated 4 October 2022, which is the agreed factual basis upon which you are to be sentenced.
2. In July 2021, police executed a search warrant at your home following receipt of information that child abuse material had been downloaded from various social media platforms by a user connected to your email address. The search warrant was executed at your address in Pakenham, where you had lived since 21 April 2021.
3. At this address, the police seized a number of electronic devices, including two mobile phones, one of which was a Samsung Galaxy S21 Ultra mobile phone; hard drives; a USB disc; and a Corsair computer tower. You co-operated with police by providing them with access codes to the mobile phones and a password for the computer tower.
4. Upon analysing the Samsung Galaxy S21 Ultra mobile phone, the police located multiple images of an infant's genitalia. It was only later that the police became aware that these were images of the victim. The images depict the victim lying on her back with her legs raised, exposing her vaginal and anal region. Investigators also located child abuse material of other unidentified children on this device.

1. You were arrested and interviewed on 8 September 2021. At this time, the police seized another Samsung mobile phone that was in your possession at the police station.
2. During this interview, you were asked questions about producing, accessing and possessing child abuse material. You confirmed the devices were yours, and admitted that the infant seen in the images was your biological daughter. You told police about the shared care arrangements that had been agreed with her mother.
3. Although you provided 'no comment' to the allegations of producing, accessing and possessing child abuse material, you stated that the images of the victim's genitalia were taken on legal advice, in order to document mistreatment of the victim. You told police you took the photos as evidence of inadequate care provided by her mother, and said they showed faeces and nappy rash left in that area.
4. You were released from custody pending summons and further analysis of the devices. A Safety Notice was issued pursuant to the Family Violence Protection Act 2008 prohibiting you from having any contact with the victim.

1. The subsequent analysis of the devices seized in July 2021 revealed child abuse material that had been accessed by you between 10 September 2020 and 8 September 2021. The material was located on each of your Samsung Galaxy mobile phones and the Conair computer tower. The titles of the files accessed by you made it explicitly clear that the content related to the abuse of children.[4] Your conduct in accessing these files is the subject of Charge 5 - access child abuse material.
2. The devices were also found to contain the child abuse material that is the subject of Charge 6 - possession of child abuse material. The child abuse material (CAM) was analysed by police and found to fall into either CAM category 1 - depicting real pre-pubescent children under the age of 13 years or CAM category 2 - depicting other illegal content of child abuse material of children under the age of 18. Across four devices, a total of 328 images and 242 videos were categorised as CAM category 1. Two images were found to fall under CAM category 2.
3. A secure folder on your Samsung Galaxy S21 Ultra mobile phone could not be analysed until the access code was provided to the e-crime unit. Analysis of the extracted material located in the secure folder led to the discovery of an additional 831 images and 273 videos falling within category 1 and one image falling under category 2. Of these, 38 were images and videos of child abuse material depicting the victim.
4. In total, there were 97 images and videos depicting the victim that were categorised as child abuse material. These were created by you between 10 September 2020 and 8 September 2021. Your erect penis is visible in multiple images. The face and/or the body of the victim is also visible in numerous images. The videos and images depicting the victim are the subject of Charge 4 - production of child abuse material.
5. Analysis of the images and videos revealed the extent of your offending against your infant daughter. They capture you sexually offending against her in the following ways:

(a) sexually penetrating her exposed anus with your erect penis; in the image of which the victim's anus appears stretched.[5] This is the conduct giving rise to the charge of sexual penetration of a child or lineal descendent - Charge 1; > > (b) placing your erect penis on the victim's stomach and chest, with the victim's lower body exposed, whilst she holds the shaft of your penis with her hands. This conduct forms part of Charge 2 - charge of sexual assault of a child under 16; > > (c) three further occasions of the victim holding your exposed erect penis. This conduct also forms part of Charge 2; > > (d) ten occasions where the victim's genitalia are exposed while you are seen to open her vagina and buttock cheeks with your hands. This conduct also forms part of Charge 2; > > (e) two occasions where you place your erect penis on the victim's exposed vagina. This also forms part of Charge 2; > > (f) a video created on 1 June 2021 depicting you masturbating over the victim while she lies on her back with her vagina and anus exposed. You ejaculated on to her. This conduct also forms part of Charge 2. > > (g) two occasions where you place your exposed erect penis on the victim's exposed anus. This conduct also forms part of Charge 2; and > > (h) two occasions where you masturbated your exposed erect penis at and towards the victim. This conduct is the subject of Charge 3 - sexual activity in the presence of a child under 16.

6. A further search warrant was executed at your Pakenham address on 23 November 2021 where the police located items of the victim's clothing and a porta-cot that were depicted in the images and videos of the victim.
7. You were arrested on that day, and the police seized a further mobile phone, being a Samsung S9 mobile phone, that was in your possession. When interviewed again on 23 November 2021, you answered 'no comment' to all allegations. You were charged and remanded in custody.

Analysis of Samsung S9 mobile phone

1. The mobile phone that was seized from you on 23 November 2021 was subsequently analysed by police. The device was also found to contain 13 images and 13 videos of child abuse material that fell within category 1 - Real Child Pre-Pubescent (under 13 years). This is also the subject of charge 6 - possession of child abuse material.
2. In total, across all devices, you possessed 1,175 images and 528 videos of child abuse material. This includes the 97 videos and images depicting the victim.

1. I now turn to evaluate the objective gravity of your offending, the most serious of which is the offending involving your infant daughter. Your conduct in engaging in multiple sexual assaults, culminating in the act of incest perpetrated against her, was shocking and abhorrent behaviour. It would be difficult to overstate the level of depravity involved in committing this crime against any child, let alone one who was not yet 12 months old.
2. The offence of incest is inherently serious, as gauged by the maximum penalty of 25 years' imprisonment fixed by Parliament. As the authorities indicate, the maximum penalty is a reflection of the community's abhorrence of the crime of incest.
3. The reason the offending is inherently serious is because, by its nature, the crime of incest involves a foundational breach of the trust reposed in a parent to care, nurture and protect their children from harm. As stated by the Court of Appeal:[6]

Incest involving a child is an appalling crime. It involves a breach of trust of the most fundamental kind, and an inexplicable abdication of parental responsibility. Just as seriously, it involves a cynical exploitation by the parent of the opportunity for sexual contact which being in that position of trust presents.

1. Incest has also been recognised by the courts as an offence that necessarily involves violence. Given the victim's tender age, this is particularly the case. The act of incest was an egregious violation of your infant daughter, for your own sexual gratification.
2. The victim's very young age meant she was extremely vulnerable and entirely reliant upon you for her care and protection. Instead, you exploited the opportunity that presented by having her in your care to sexually offend against her. Significantly, you also breached the trust placed in you by the victim's mother in agreeing for you to share in the care of her daughter.
3. Moreover, this was not isolated offending. You sexually penetrated the victim's anus and committed multiple other sexual assaults upon her and committed sexual acts in her presence, all the while documenting the abuse by producing the images and videos. It was a continuing and shameless breach of the trust that should exist between every parent and child. You had ample opportunity to reflect on your offending and to desist, but you did not.
4. Charges 2 and 3, being the charges of sexual assault and sexual activity in the presence of a child under 16, and charge 4 being the offence of producing child abuse material, are each rolled up charges reflecting multiple instances of offending against the victim. Whilst the one maximum penalty of 10 years imprisonment applies to each offence, in sentencing you on these charges I must sentence you having regard to the various instances of offending encapsulated within each charge so that the sentence reflects the totality of your offending against the victim.
5. Charge 5 relates to your conduct in accessing child abuse material, being the total of 1,175 images and 528 videos accessed over the 12-month period. Charge 6 relates to your conduct in knowingly possessing child abuse material between July 2021 and November 2021. The majority of the images accessed and possessed by you fall within category 1, being child abuse material depicting real pre-pubescent children either involved in a sexual act, present during a sexual act or where the images are concentrated on the child's genitalia or anus region.
6. Concerningly, you were not deterred from further offending of this kind by your arrest on 8 September 2021. You continued to access and possess a further 13 images and 13 videos of child abuse material that were found on the Samsung mobile phone seized from you following your second arrest.
7. In the case of Garside,[7] the Court of Appeal set out various factors relevant in assessing the gravity of the offence of accessing and possessing child abuse material. It was recognised that in the age of the internet, such offending is difficult to detect and there is a strong public interest in promoting the protection of children who are sexually abused to supply the market in child abuse material. This is not a victimless crime. The possession of child abuse material creates the market for the continued corruption and exploitation of children. The law recognises that offending involving accessing and possession of child abuse material is objectively serious and, in the absence of exceptional circumstances, ordinarily warrants a sentence of imprisonment.[8]
8. I accept that other aggravating features relevant to my assessment of the seriousness of the offences of accessing and possessing child abuse material are not present in this case. For example, there is no evidence that you accessed or possessed the material for profit or produced the child abuse material for further distribution. Moreover, whilst the number of videos and images accessed and possessed by you was not insignificant, it was not in the volume often seen with offending of this nature, and the images were not assessed in the upper CAM categories.
9. But there can be no doubt that your offending against your daughter was objectively extremely serious. Your conduct was morally repugnant. At some level you must have been aware of the wrongfulness of your conduct, given the perverse nature of the extracted material found on the secure folder. The objective gravity of your offending, and your culpability for it, are both particularly high.

1. I turn now to discuss the impact your offending has had on the mother and grandmother of the victim, as outlined in their victim impact statements.
2. Ms Ross' victim impact statement tells of the profound shock of being told of your crimes. [9] She speaks of the ordeal of watching her daughter be medically examined for possible injury. She feels a strong sense of guilt for not protecting her daughter; and says she feels that she failed as a parent even though she bears no responsibility for your offending. She says your offending has changed the course of her life; she is now a single-parent and lives with a sense of concern for her daughter's future safety and wellbeing. Her mental health has deteriorated requiring psychological treatment.
3. The victim's grandmother, Ms Lynne Chandler,[10] also prepared a victim impact statement in which she speaks of the enduring impact of your crimes.[11] She too feels a sense of guilt for failing to protect her granddaughter. She also speaks of the multi-faceted impact of your offending: of the loss of the independent lifestyle she had planned for when her children became adults, only to suddenly become responsible again for her daughter, and now her granddaughter's, wellbeing. She says this has placed financial strain on her and impacted on her mental health. In her detailed victim impact statement, Ms Chandler asks whether she and her daughter will ever find happiness again.
4. Both victim impact statements reflect on the victim's future and their understandable concern should she ever find out about your offending against her.
5. I have taken the enduring impact of your offending on these victims into account as one of the factors relevant to the sentence I impose. Given her very young age, it is too soon to assess the impact of your offending on the victim's future well-being. However, as the Court of Appeal observed in Dalgliesh, the absolute prohibition on sexual activity with a child is 'founded on a presumption of harm'.[12]

1. I turn now to discuss your personal circumstances and history. These are informed by the psychological material tendered on your plea in addition to the detailed and helpful written submissions made on your behalf by Ms Kothrakis, that were expanded upon at the plea hearing.
2. It is of significance that you have no prior criminal history and are to be sentenced for this offending as a first-time youthful offender.
3. You were born in December 1998 and are now 23 years old. Yours was a difficult childhood punctuated by periods of instability and exposure to sexual abuse at the hands of your own father.
4. You are the youngest of two children born to your parents, who separated when you were two years-old and you continued to live with your mother. You also have a half-sister who is nine years older than you. Following your parents' separation, your father moved to Queensland to live, and you and your older brother would visit him during holiday periods.
5. During these visits, when you were aged between three and six years of age, your father would sexually assault both you and your older brother, experiences which you report finding 'deeply distressing and confusing'.[13] Your father's conduct included forcing you to touch his penis, fondling your penis and incidents where you would wake up naked, not knowing what had happened.[14]
6. Your difficult childhood experiences are reflected in the reference provided by your older brother, in which he states:[15]

[Jared][16] and I didn't have the easiest of [upbringings]. We were victims of physical, sexual and verbal abuse throughout our upbringing. Our parents separated when we were pretty young. [Jared] would've been only around 2 years old. [Jared] and our father weren't the closest...[Jared] and I had to go and visit our father after they separated. On the times we went to visit him, he sexually abused both of us. That was really hard for both of us to handle, and it was some time before I was able to tell mum what had happened. We stopped seeing him after that.

1. Your formative years were also affected by other distressing incidents, including being bullied and beaten up by other children in your neighbourhood and witnessing violent incidents, including the violent behaviour of your mother's partners and then the partner of your half-sister. You describe these experiences as leaving you feeling anxious and scared as a child.[17] It was only after your family moved to Cranbourne when you were 12 years old, that your childhood became more stable.
2. You attended local schools in Seaford and Skye. When you were in primary school, a close friend passed away from cancer. In Grade 6, another friend passed away as a result of a choking incident. You commenced your secondary education in Carrum Downs but these were unhappy years. By this time, you had gained weight and experienced bullying from other students. You ultimately refused to attend school after Year 8 due to intense social anxiety. Your older brother says that after this, you 'isolated [yourself] from the world', suffering from suicidal ideation.
3. After a period, you obtained work at McDonald's for around eight months. At your mother's suggestion, you completed a Certificate IV in Disability Services in 2018. You completed a placement with a community support program and were then offered full-time employment with that service. You were employed by this organisation for three years, until your employment was terminated upon being charged with these offences.
4. You had also assisted disabled men through the Men's Shed Program.
5. Your first serious intimate relationship was with Ms Ross who also worked at the disability service. Although the relationship was positive at first, it later became strained, leading to your separation following the victim's birth in September 2020.

1. You were assessed for the purposes of the plea by psychologist, Dr Mathew Barth on 29 August and 5 September 2022. Dr Barth's report dated 5 October 2022 was tendered at your plea hearing.
2. You told Dr Barth that you commenced viewing internet-based pornography during your early teens. You were soon doing so on a daily basis. You reported exploring a diversity of pornography, and utilising various chat rooms and social media applications to access explicit material. It was in this context that you began viewing child abuse material. You told Dr Barth that although you were initially 'disgusted' by the material, you repeatedly returned to it.[18]
3. Dr Barth states you were unable to explain the motivations for your offending behaviour. He also reported that you had considerable difficulty discussing the offending against your daughter, telling him, 'I don't know why I did it, I don't want to think about it. Any thought of it being real just makes me sick to my stomach'.[19]
4. Dr Barth states that you presented as depressed and despondent, with feelings of distress about your future given the seriousness of the charges. Dr Barth diagnosed you with an Adjustment Disorder - with Mixed Anxiety and Depressed Mood and states that 'mental health treatment is unequivocally warranted'.
5. As to your offending behaviour, Dr Barth concluded that your sexual adjustment was 'undoubtedly disordered' and is 'sufficiently severe to warrant a diagnosis of Paedophilic Disorder - Nonexclusive Type, Sexually Attracted to Females according to the DSM-5-TR criteria'.[20] In reaching this opinion and referring to the escalation in your offending behaviour, Dr Barth stated as follows:[21]

...In response to direct questioning, [Mr McKinley] denied any attraction to female children. Notwithstanding this claim, given the nature of his offending, this is clearly implausible. The fact that he has accessed pornographic material depicting children, in particular, material depicting incestuous behaviour and has escalated to acting out this sexually explicit behaviour with his infant daughter clearly indicates acute sexual deviance which focuses on female children. Beyond this, his engagement in the creation of overtly deviant material points to severe psychosexual pathology and a grossly distorted concept of sexual boundaries. The escalation that was evident in Mr [McKinley's] offending behaviour is extremely concerning.

1. In the case of Verdins, the Court of Appeal held that where a mental health impairment is causally connected with the offending conduct the impairment may reduce an offender's moral culpability for the offending. Ms Kothrakis, in her considered submissions, accepted there was no basis to apply the Verdins principles to moderate or mitigate your subjective culpability for your offending.
2. However, I accept that your experiences of sexual and physical abuse and instability during your formative years are of relevance to the sentence to be imposed. As the High Court explained in Bugmy,[22] a childhood of exposure to abuse and violence is a deprivation that operates in mitigation of sentence. Your culpability cannot be equated to a person without these childhood experiences. Although there is no evidence to suggest that your childhood experience of sexual abuse was causally connected to your offending, I accept that your childhood marked by significant abuse is a mitigating factor that I have taken into account in a general sense, together with your diagnosed Adjustment Disorder - with Mixed Anxiety and Depressed Mood.
3. I am satisfied that you have demonstrated a willingness to engage in psychological treatment. Following your arrest, you engaged in six sessions of counselling with Mr Geoffrey Burrows, a provisional psychologist, who was supervised by clinical psychologist, Dr Philip Greenway. This counselling focused on your symptoms of anxiety and depression but did not explore your offending behaviour. Indeed, Mr Burrows was not aware of the offending against your daughter at the time of this treatment. On a positive note, however, Dr Barth reports that you expressed a strong desire to participate in any treatment you require and to cease all pornography use when you are ultimately released from custody.[23]

1. Having addressed the objective gravity of your offending, I turn now to the various matters raised in mitigation on your behalf.
2. First and foremost is the fact you entered a guilty plea to these charges at the earliest opportunity. In doing so, you saved the community the time and expense associated with a trial and provided finality to these proceedings for the victim's mother and family. There is significant utility in your plea. You have facilitated the course of justice by pleading guilty. Your plea also signifies your acknowledgment of responsibility for your offending conduct. You also cooperated with police by the provision of access codes at the time of your first arrest.
3. Moreover, there is heightened utility in a plea entered at this time, when there is a backlog of trials in the wake of the COVID-19 pandemic. You are entitled to, and will receive, a significant sentencing discount given your guilty plea to the charges.
4. I consider the question of remorse to be more complicated. Dr Barth outlined your difficulty in discussing your offending against your daughter. He challenged your initial claim that you were motivated to take photographs of your daughter's genital area due to concerns over her hygiene in the care of her mother. You then expressed shame and remorse for your offending to Dr Barth, stating:[24]

It haunts me, I want someone to hurt me for it. I deserve it. I'll always hate myself for it. I'll never forgive myself.

1. Whilst I do accept that you are shamed by your offending, you are yet to acknowledge and reflect upon the serious nature of your offending, or to demonstrate insight into the true motivation for your conduct. Dr Barth expressed the opinion that you have poor insight into your offending, a factor that increases your risk of further offending.[25] Dr Barth's recommendation that you engage in a comprehensive specialist sex-offender treatment program at the 'earliest possible juncture' is certainly warranted.[26]
2. The second significant factor relied upon in mitigation is your youth and lack of any prior criminal history. The relative youth of an offender, particularly a

first-time offender, is a relevant sentencing consideration for a number of reasons. Generally speaking the immaturity of a youthful offender may mean they lack the insight, judgment or self-control possessed by an adult or more mature offender.[27] 3. The law also recognises the importance of rehabilitating youthful offenders, and the community interest in their effective rehabilitation. 4. In this case however, the serious criminality of your offending requires other sentencing considerations of deterrence - both general and specific - denunciation, just punishment and the protection of the community to eclipse these considerations. The weight that attaches to your youth, lack of priors and rehabilitation must be correspondingly reduced. However, that does not extinguish the importance of your rehabilitation. As Ms Kothrakis emphasised in her submissions, you have much of your life to live, and a sentence that promotes your rehabilitation is important for the ultimate protection of the community. 5. As to your prospects of rehabilitation, these can only be assessed as guarded at present. There are however, some positive indications for your future. You have the ongoing support of your mother and brother. They have demonstrated their support in the references they prepared for your plea, and by their attendance in support of you at the plea hearings. In your brother's written reference, he speaks of you as a 'very caring and supportive' person and describes you as 'going above and beyond' in your work as a disability support worker. He expresses shock at your offending and states he knows you are capable of change. Your mother also emphasises the willingness of your family to stand by you into the future. 6. Since being remanded, you have taken every opportunity available to you to engage in educational and vocational opportunities. You are presently undertaking no fewer than six vocational certificates in areas including engineering, information technology and traffic management. In June 2022 you were appointed a peer educator for your unit. You plan to complete your Year 12 equivalent whilst in custody. As stated, you have demonstrated a preparedness to engage in psychological counselling. These are all matters to your credit. 7. However, your future prospects will very much depend upon your ability to genuinely engage in sex offender treatment and counselling. 8. Dr Barth undertook a number of risk assessments in determining your risk of sexual recidivism, including the Static-99 and RSVP-V2 risk assessment tools. Dr Barth considered the following factors were of relevance to your assessment including 'the chronic nature of [your] offending, the diversity of [your] offending behaviour and the escalation in the severity of [your] offending conduct'.[28] He states that other factors, including your 'deviant sexual cognitions, arousal patterns, poor insight and pervasive intimacy deficits', elevate your risk significantly. [29] Overall, he assesses you as falling within the 'moderate-high risk' category, particularly in the context of female children in an 'intrafamilial context' and the risk of accessing child abuse material online.[30] 9. In order to moderate this risk, Dr Barth recommends you engage in sex-offender treatment to gain insight into the motivations for your offending, and the mental health treatment to address your early childhood trauma and abuse. Your prospects of rehabilitation are largely contingent on your effective engagement and participation in such specialist treatment. 10. Finally, I accept that your time in custody as a first-time offender will be a difficult one for a number of reasons. You told Dr Barth that you are fearful of other prisoners becoming aware of the nature of your offending. You have also been held on remand during a period when conditions in custody have been additionally restrictive in order to respond to the risks posed by COVID-19, including repeated lockdowns. This increased your isolation in custody, with no face-to-face visits with family until March 2022. Moreover, in a supplementary report dated 31 October 2022, Dr Barth expresses the opinion that a term of imprisonment is likely to place you at a risk of a deterioration in your mental health. Having confirmed his diagnosis of an Adjustment Disorder - with Mixed Anxiety and Depressed Mood, Dr Barth states:[31]

...his mental health is likely to culminate in Mr [McKinley] being a vulnerable prisoner throughout the duration of his sentence, particularly when considering his limited coping skills for his distress, low

self-esteem and his ongoing suicidal ideation. More specifically, [he] is likely to be prone to more intense emotional disturbances and distress than a prisoner of normal health.

1. I accept that limb 5 of Verdins has application to your circumstances, and that the additional burden of your imprisonment is a further factor that operates to moderate your sentence.

1. I turn now to discuss other relevant sentencing considerations.
2. The offence of incest is a 'standard sentence offence'. As this offence was committed after 1 February 2018, the standard sentence scheme applies to the sentence I am to impose on this charge. The applicable standard sentence is 10 years' imprisonment. The offences of sexual assault of a child under 16 and sexual activity in the presence of a child under 16 are also standard sentence offences. The standard sentence specified for both of these offences is 4 years' imprisonment.
3. The standard sentence scheme is set out in s5A and s5B of the Sentencing Act 1991. The scheme requires me to take the standard sentence into account as one of the factors relevant to sentencing. However, as stated in Brown v the Queen,[32] the standard sentence is a legislative guidepost only, and does not affect the established 'instinctive synthesis' approach to sentencing.
4. The only previous sentences to which I may have regard when considering current sentencing practices are those that have been imposed under the standard sentence scheme for the offence of incest.[33]
5. Neither counsel were able to refer me to any comparable cases under the standard sentence scheme for the offence of incest.
6. Ms Andrews, appearing for the prosecution, provided helpful submissions in which she referred me to two cases that may assist in informing current sentencing practices in relation to the other comparable offences, whilst acknowledging that the circumstances of each case and offender differs.
7. The first was the decision of this Court in DPP v Wylie (a pseudonym)[34], however as that was a decision imposed prior to the standard sentence scheme, I have not had regard to this case insofar as it relates to the offence of incest. In relation to the offence of producing child abuse material, which is not a standard sentence offence, I have had regard to the sentence of two years' imprisonment imposed in that case on two separate charges arising from the production of child abuse material pertaining to the accused's five year-old and two-year-old daughters, following a plea of guilty.
8. The second authority I was referred to was that of DPP v Hum (a pseudonym)__[35] where the offender was resentenced by the Court of Appeal to 11 years, 8 months' imprisonment with a non-parole period of 7 years, 3 months for offences including sexual penetration of a child under 16, sexual assault of a child under 16 and multiple charges of possessing, producing and distributing child abuse material.
9. In that case, the charges of sexual penetration of a child under 12, which carried a maximum penalty of 25 years, related to the offender's conduct in inserting the penis of a 21-month-old child in his mouth and sucking on it, whilst filming his conduct. The child was the son of his ex-partner. For this offence, he was sentenced to 5 years, 9 months' imprisonment. The charge of sexual assault of a child under 16, which carried a maximum penalty of 10 years, arose from making the child touch his erect penis and taking a photo of this. For this offence, the offender was sentenced to 2 years, 6 months' imprisonment.
10. I note that these charges were subject to the standard sentence scheme, with the applicable standard sentence being 10 years for the offence of sexual penetration of a child under 12, and 4 years for the offence of sexual assault of a child under 16. In resentencing, the Court of Appeal noted the relative youth of the offender, and the utility of his plea during COVID-19. He also had a deprived early childhood. The Court of Appeal restated the need to give effect to the operation of s 6E of the Sentencing Act 1991, in determining orders for cumulation and concurrency.
11. I have also had regard to the case of Tobin (a pseudonym) v The Queen[36] where the Court of Appeal refused leave to appeal against a sentence of 9 years' imprisonment with a non-parole period of 5 years, 6 months for the offences of sexual penetration of a child under 12 and a rolled-up charge of sexual assault of a child under 16, imposed following a plea of guilty. The standard sentence scheme applied to both offences, being 10 years and 4 years' imprisonment respectively.
12. In Tobin, the victim was the three-year-old step-niece of the offender. The offending comprised rubbing the victim's vagina with his finger, then licking the victim's anus while inserting his finger in her vagina. The offending occurred on the one occasion. The offender, who was a youthful offender of 20, had been diagnosed with a moderate personality disorder, although Verdins had no application to reduce his moral culpability. The offender's formative years had also been marked by a significant degree of disadvantage and dysfunction.
13. Whilst these cases provide some broad guidance as to current sentencing practices, the facts in each case differ from the facts that present in your case. As was made clear in the case of Dalgliesh, current sentencing practices are only one of a number of factors to which I must have regard in sentencing you.[37]
14. The aggravating features of your offending are significant. You exploited the extreme vulnerability of your infant daughter by your conduct in penetrating her anus with your erect penis, coupled with multiple acts of appalling sexual assaults upon her over a prolonged period, all the while capturing these offences on film. These facts place your offending in an extremely serious category. The need to deter not only you, but others who may be minded to act in such a depraved manner for their own sexual gratification, is a sentencing consideration of paramount importance. In sentencing you, I must unequivocally denounce your offending. Your counsel accepts that a sentence of imprisonment is the only available sentencing disposition.
15. On your behalf, it is submitted that a sentence that promotes your rehabilitation can be achieved through the imposition of a suitable non-parole period. Ms Kothrakis urged the court not to impose a disproportionate sentence, or to impose wholly cumulative sentences, in order to promote community protection. I accept that the need to promote your rehabilitation is best achieved by fixing an appropriate non-parole period, during which you are subject to a lengthy period of supervision.
16. Pursuant to s 6B(2)(a) of the Sentencing Act 1991 you are to be sentenced as a serious sexual offender on all remaining offences after being sentenced to a term of imprisonment on two or more offences. Section 6D of that Act requires that the protection of the community to be the principal purpose of sentencing in relation to those offences. The prosecution does not submit that I should impose a disproportionate sentence to achieve the protection of the community, and given your age and lack of prior criminal history I accept that submission.
17. Section 6E of the Sentencing Act 1991 requires that the terms of imprisonment imposed on the remaining charges must, unless otherwise directed, be served cumulatively upon other sentences of imprisonment that are imposed.
18. As stated, I have had regard to the standard sentence of 10 years as one of the factors relevant in sentencing you for the offence of incest and the standard sentence of 4 years for the offences of sexual assault of a child under 16, and sexual activity in the presence of a child under 16. The standard sentence is the period specified by the Sentencing Act 1991 that is the appropriate sentence for offences in the mid-range of seriousness, taking into account only the objective factors affecting the relative seriousness of the offence.
19. The instinctive synthesis involved in sentencing still requires a balancing of many factors including the nature and objective seriousness of the offending, your moral culpability, as well as your personal circumstances and the matters to which I have referred in mitigation of sentence. Here, while I have concluded these were grave examples of the offences committed against the victim, it is also relevant to my sentence to acknowledge some overlap in the offences, for instance the production of child abuse material arising from your filming of these acts, and to ensure you are not doubly punished for overlapping conduct. I have taken these matters into account in my consideration of the appropriate periods of concurrency as between these offences.
20. The individual sentences I have imposed on Charges 1, 2 and 3 fall below the standard sentence applicable to each offence. In imposing these sentences, I have taken into account the objective gravity of each offence and the matters to which I have referred in mitigation of your sentence, including your early plea, your age, difficult childhood, lack of priors and the burden of your imprisonment.
21. In considering the amount of cumulation to be ordered, I have had regard to the legislative presumption created by s6E of the Sentencing Act 1991. As the Court of Appeal has explained, the evident object of s6E is 'to make sentences to which it applies operate cumulatively rather than concurrently'.[38] However, this does not mean that the presumption of totality is to be disregarded.[39]
22. I have assessed the extent to which each individual offence added to the total criminality of your conduct over the 12-month period, including the discrete criminality of accessing and of possessing child abuse material. I accept that the sentencing principle of totality means that a significant degree of concurrency is appropriate. However, the import of s6E, even for offences involving the one victim, is reflected in the following observation of McLeish JA in Stamper (a pseudonym) v The Queen:[40]

...in cases of multiple sexual offending, even those which involve the same victim, and where the offences are closely associated in time, some level of cumulation is, today, very much to be expected. The Sentencing Act 1991, and its treatment of serious sexual offenders, supports that approach.

1. Balancing each of the matters to which I have referred, whilst having regard to the maximum penalty for each offence and the standard sentence for Charges 1, 2 and 3, I sentence you as follows:
2. On Charge 1 - sexual penetration of a child or lineal descendant - you are convicted and sentenced to 8 years, 6 months' imprisonment. This is the base sentence.
3. On Charge 2 - sexual assault of a child under 16 (rolled-up charge) - you are convicted and sentenced to 3 years' imprisonment;
4. On Charge 3 - sexual activity in the presence of a child under 16 (rolled-up charge) - you are convicted and sentenced to 18 months' imprisonment;
5. On Charge 4 - produce child abuse material (rolled-up charge) - you are convicted and sentenced to 2 years, six months' imprisonment;
6. On Charge 5 - access child abuse material - you are convicted and sentenced to 18 months' imprisonment; and
7. On Charge 6 - possess child abuse material - you are convicted and sentenced to 16 months' imprisonment.
8. I make the following orders for cumulation. I order that 18 months' of the sentence imposed on Charge 2, 4 months of the sentence imposed on Charge 3, 8 months of the sentence imposed on Charge 4, and 4 months of the sentences imposed on each of Charges 5 and 6 be served cumulatively upon Charge 1 and upon each other. In determining the period of cumulation with respect to Charge 4, I have had regard to the overlap between this offence and the offending that is the subject of Charges 1, 2 and 3. The additional criminality of Charge 4 relates to your conduct in filming the sexual abuse of the victim, thereby producing the child abuse material.
9. This gives a total effective sentence of 11 years, eight months' imprisonment.
10. Having regard to s11A of the Sentencing Act 1991 I fix a period of 7 years imprisonment before you are eligible for parole.
11. Pursuant to s18 of the Sentencing Act 1991, I declare that 365 days of

pre-sentence detention be reckoned as already served under this sentence. 12. Pursuant to s 6F of the Sentencing Act 1991, I record that on Charges 3, 4, 5 and 6 you are sentenced as a serious sexual offender. 13. Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, the sentence I would otherwise have imposed would have been a sentence of 15 years' imprisonment with a non-parole period of 10 years, six months' imprisonment. 14. Mr McKinley, your offending attracts the provisions of the Sex Offenders Registration Act 2004 and you are to be registered as a sex offender. This is mandatory and the period of registration is life. You will be required within 7 days of your release from custody to report your personal details and to comply with the requirements of that Act for life. 15. Finally, I make the disposal order sought by the prosecution noting that it is not opposed.

[4] Exhibit A - Summary of Prosecution Opening dated 4 October 2022, at [18] details the titles of the files, including 'Webcam - "family_mom blows 7 yo boy 3 yo girl", "incest.mp4", "10 yo girl getting fingered", "Big Dick in 5yo Pussy.mp4.jpg", "9yo sucks her dogs cock", "Mom licks 4MO pussy 21s.mgp.mp4".

[5] Exhibit A - Summary of Prosecution Opening for Plea dated 4 October 2022 at paragraph 21 a.

[6] DPP v Amaral (a pseudonym) [2020] VACA 290 at [33]

[7] DPP (Cth) & DPP v Garside [2016] VSCA 74

[9] Exhibit B - Victim Impact Statement of [Danielle Ross] dated 10 October 2022

[11] Exhibit C - Victim Impact Statement of [Lynne Chandler] dated 6 October 2022

[12] DPP v Dalgliesh (a pseudonym) [2016] VSCA 148, [47]

[13] Exhibit 1 - Psychological report of Dr Mathew Barth dated 5 October 2022 at [13]

[15] Exhibit 3 - Reference of [Oscar McKinley] dated 9 October 2022, paragraph [2]

[22] Bugmy v The Queen [2013] HCA 37, (2013) 249 CLR 571

[27] R v Azzopardi [2011] VSCA 372

[31] Exhibit 5 - Supplementary Report of Dr Barth dated 31 October 2022, at [3]

[32] [2019] VSCA 286 at [4]

[33] Section 5B(2)(b) of the Sentencing Act 1991

[34] DPP v Wylie (a pseudonym) [2017] VCC 1086 (Judge Tinney)

[35] [2022] VSCA 57

[36] Tobin (a pseudonym) v The Queen [2021] VSCA 180

[37] DPP v Dalgliesh (Pseudonym) [2017] HCA 41, (2017) 262 CLR 428

[38] DPP v Hum [2022] VSCA 57 at [113]

[39] Zhao v The Queen [2018] VSCA 267 at [91]- [94].

[40] Stamper (a pseudonym) v The Queen [2021] VSCA 323, at [40], citing Flynn