1. The applicant was 46 years old at the time of the offending the subject of charge 2, and 47 at the time of sentencing.
2. The applicant was raised in country New South Wales, near the Victorian border. He is the older of two children, enjoyed close relationships with his family members and suffered no instances of abuse, mistreatment or criminality in the family home. He moved away from the family home in his early 20s but maintained close contact with his parents.
3. The applicant completed secondary school and a TAFE certificate in hospitality. He has been in full-time employment for his entire adult life. Prior to his arrest, he was working in a managerial role for a large supermarket chain in Melbourne.
4. The applicant identifies as homosexual. He was raised in a socially conservative family and had his first sexual experiences with men during his early 20s. He reported having had no ongoing intimate relationship with a man, nor any desire to do so. He denies having ever had sexual contact with under-age individuals.
5. The applicant reported making extensive use of pornography, typically utilising 'mainstream homoerotic material'. He stated that he had utilised internet contact sites to facilitate casual encounters and engage in sexualised chat with others, and had used the chat line to connect with other men and experiment with sexual fantasies. He said that it was in this context that he engaged with the sexually deviant chats and received the child abuse material the subject of the offending.
6. The applicant has no prior criminal history.

1. Section 16A(1) of the Crimes Act provides that, in sentencing a person for a federal offence, 'a court must impose a sentence ... that is of a severity appropriate in all the circumstances of the offence'. Section 16A(2) sets out a non-exhaustive list of matters that a court must take into account if they are relevant and known to the court.
2. Section 16A(2AAA) of the Crimes Act makes specific provision for sentencing of offenders for Commonwealth child sex offences in the following terms:

In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court:

(a) when making an order - to impose any conditions about rehabilitation or treatment options;

(b) in determining the length of any sentence or non‑parole period - to include sufficient time for the person to undertake a rehabilitation program.

1. Section 17A of the Crimes Act provides as follows:

(1) A court shall not pass a sentence of imprisonment on any person for a federal offence ... unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.

1. Section 19(5) of the Crimes Act relevantly provides, for present purposes, that there must be full cumulation of sentences imposed for more than one Commonwealth child sex offence. However, this requirement is qualified by s 19(6) which provides that s 19(5) does not apply if the court is satisfied that imposing the sentence in a different manner - that is, in a manner that allows partial or full concurrency - would still result in sentences that are of a severity appropriate in all the circumstances.
2. Section 20 of the Crimes Act permits a sentencing court to conditionally release a convicted person. It relevantly provides as follows:

20 Conditional release of offenders after conviction

• (1) Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit:

  (a) by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:

  (i) that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order;

(iv) that he or she will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order; or

...

(b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a):

(ii) if at least one of the offences is a Commonwealth child sex offence and the court is not satisfied that there are exceptional circumstances-after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or

(iii) if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances-immediately.

1. Section 20AB of the Crimes Act has the effect, for present purposes, that a sentencing court in Victoria which sentences a person for a federal offence may make certain sentencing orders under the Sentencing Act 1991, including a community correction order ('CCO').

1. At the plea hearing, it was common ground between the prosecutor and defence counsel that the applicant's offending fell within the low end of the spectrum of seriousness.
2. The prosecutor submitted that the judge should impose a sentence of imprisonment pursuant to s 20(1)(b) of the Crimes Act but conceded that exceptional circumstances exist for the purposes of s 20(1)(b)(iii) and therefore it was open to the judge to immediately release the applicant on a recognisance release order under that provision.
3. Defence counsel submitted that the applicant should be released forthwith on a bond with conviction pursuant to s 20(1)(a) of the Crimes Act. Counsel contended that, if the judge concluded that this was not appropriate, a CCO would be appropriate as it would allow the applicant to continue his treatment in the community. Earlier, counsel stated that 'exceptional circumstances exist if Your Honour was minded to impose a term of imprisonment'.
4. Counsel submitted that the applicant had pleaded guilty at an early opportunity during the COVID-19 pandemic. The prosecutor did not submit otherwise.
5. Defence counsel tendered a report dated 17 November 2022 prepared by a psychologist, Dr Mathew Barth. Dr Barth stated that the applicant had symptoms of depression and anxiety which caused him a moderate degree of distress but they were not sufficiently severe to warrant the diagnosis of a psychological disorder. Dr Barth opined that the applicant had various factors which pointed to 'sexually-deviant offence-supporting cognitions regarding children and sex'. Dr Barth considered that the applicant's risk of recidivism - in relation to online or non-contact offending - fell within the low-moderate risk category.
6. Dr Barth stated that the applicant was able to demonstrate a well-developed appreciation for the noxious impacts on the children who are depicted in child abuse material and the destructive consequences of discussing sexual behaviours with children, with other people. However, Dr Barth noted that the applicant's insight into his behaviour was still developing and that further sex-offender treatment was required. Dr Barth concluded that the applicant had genuine remorse for his conduct.
7. Also tendered was a report dated 11 November 2022 prepared by Geoffrey Burrows, a provisional psychologist. Mr Burrows had been treating the applicant while he had been on bail, at the applicant's instigation and cost. Mr Burrows reported on the applicant's progress while he participated in 10 sessions of a sex offender treatment program between 21 April 2022 and 3 November 2022. Mr Burrows stated that the applicant had engaged actively in the program and made some good progress. Mr Burrows described the applicant as having developed some insight into his offending behaviour and having successfully restructured his offence-supporting cognitions and expressed considerable remorse for his actions.

1. In relation to the offending the subject of charge 1, the judge found that the applicant's conduct was abhorrent and his moral culpability was 'considerable'.[3] The judge stated that, although no actual children were victims, such conversations may have the effect of desensitising those involved so as to make it more likely that they will view child pornography and possibly even offend against children.
2. On the basis of R v De Leeuw[4] and Director of Public Prosecutions (Cth) v Garside,[5] the judge summarised the factors informing the objective seriousness of child pornography offences as:

(a) the nature and content of the material, in particular, the age of the children and the gravity of the sexual activity depicted; > > (b) the number of items or images possessed; > > (c) whether the material is for the purpose of sale or further distribution; > > (d) whether the offender will profit from the offence; > > (e) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised; and > > (f) the length of time for which the pornographic material was possessed.

3. Applying the above factors in relation to the offending the subject of charge 2, the judge held that the offending was serious but was properly characterised as towards the lower end of the spectrum of seriousness. The judge stated that the images were far from the worst seen in the courts in terms of both content and number, and the applicant was not possessing the images for the purpose of sale or further distribution.
4. The judge stated that the two charges involved discrete and different offending that occurred at different times.
5. The judge accepted that the applicant pleaded guilty at an early stage and that his plea had considerable utilitarian benefit, particularly in the light of the backlog of cases caused by the COVID-19 pandemic. The judge also took into account the applicant's cooperation with the police.
6. The judge stated that general deterrence was the primary sentencing consideration in sentences for child pornography. He added that, unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted, and that less or limited weight is given to an offender's prior good character than for other offences.
7. The judge accepted that the applicant had very good prospects of rehabilitation, having regard to the fact that he had sought specialist treatment and expressed genuine remorse for his offending.
8. The judge stated that, based upon Dr Barth's report, there was a role for specific deterrence in the applicant's case.
9. The judge then gave the following reasons why a sentence to a term of imprisonment was the appropriate sentencing disposition:

I have considered all aspects of your case and had specific regard to s 17A of the Crimes Act ... . I am of the view that the objective seriousness of your offending ... is such that no sentence short of imprisonment will achieve the relevant purposes of general and specific deterrence, community protection and denunciation of your conduct that are required in this case. [6]

1. However, the judge concluded that the applicant had established exceptional circumstances for the purposes s 20(1)(b)(iii) of the Crimes Act, and should therefore be released immediately. The judge concluded that exceptional circumstances existed for the following reasons:

I consider that the following aspects of your case taken in combination do amount to exceptional circumstances. That the offending is at the lower end of objective seriousness; your early plea of guilty during the currency of the pandemic and your accompanying genuine remorse; the steps you have voluntarily taken to obtain sex offender treatment; your relatively low risk of recidivism that is limited to online offending; your lack of prior convictions; your stable life and supportive family and friends and finally your good prospects of rehabilitation generally.

I have also taken into account that serving time in custody is likely to undermine your rehabilitation and cause you to lose your current employment, and it is in both yours and the community's interests that these do not occur. I am, therefore, prepared to order your immediate release ...[7]

1. There is no reference in the judge's sentencing remarks to the principle of totality. Other than stating that s 19(5) of the Crimes Act contains a presumption of cumulation and that the two charges involved discrete and different offending that occurred at different times, the judge did not explain why he ordered that the two sentences be fully cumulated.

Further evidence and parties' submissions on resentence

1. As we have already stated, consequent upon the Crown's appropriate concession that the judge erred in ordering full cumulation in respect of the sentences for the two charges, the sentencing discretion is reopened.
2. For the purpose of resentence, the applicant filed an affidavit by his solicitor sworn on 17 May 2023, which stated:

(a) Following the sentencing of the applicant on 25 November 2022, his employer took steps to terminate his employment and did so on 9 January 2023. > > (b) Since 9 January 2023, the applicant made many unsuccessful applications for employment and eventually obtained employment as an area manager in the cleaning industry commencing on 22 May 2023 with a significantly lower salary than his previous employment. > > (c) For the first time in his life, in the past month the applicant has relied upon Centrelink payments.

3. Exhibited to the affidavit was a letter dated 16 May 2023 from Mr Burrows which stated that, since Mr Burrows prepared his report dated 11 November 2022, the applicant had attended a further eight consultations, the most recent taking place on 11 May 2023.
4. The applicant emphasised that it was common ground on the plea, and the judge accepted, that his offending the subject of both charges was at the lower end of the spectrum of seriousness. In relation to the offending the subject of charge 1, he relied upon the short duration of his conversation with the other adult male and submitted that the offence is of an unusual nature and would not have been committed if the messages had not been recorded. In relation to the offending the subject of charge 2, the applicant referred to the small number of offending items, the nature of the acts depicted in them - which were said to be relatively less serious than items in many other cases - and the inapplicability of some of the factors set out at [33] above, such as financial gain or further distribution.
5. The applicant emphasised the following matters in mitigation:

(a) he had no prior convictions and was a man of otherwise good character; > > (b) he had the benefit of an early guilty plea entered during the COVID-19 pandemic; > > (c) he had voluntarily engaged in sex offender treatment; > > (d) he had very good prospects of rehabilitation; > > (e) he was genuinely remorseful; and > > (f) he was specifically deterred by virtue of the proceedings.

6. The applicant contended that, having regard to the low level offending and the significant matters in mitigation, it was open to this Court to impose a sentence that did not involve imprisonment, such as conviction with a bond or a CCO. Alternatively, so it was said, if the Court concludes that terms of imprisonment are required, they should be lower than the terms imposed by the judge and the applicant should be released upon a recognisance release order.
7. The Crown submitted that the applicable principles and factors in sentencing for offending involving child abuse material ordinarily require an immediate term of imprisonment. The Crown contended that general deterrence is the primary sentencing consideration and that specific deterrence, punishment and the protection of the community are very important sentencing considerations.
8. The Crown argued that, when proper consideration is given to the sentencing principles and objective seriousness of the applicant's offending, weighed against the mitigating factors upon which he relied, it would be appropriate for this Court to sentence him to terms of imprisonment and order that he be immediately released upon a recognisance release order. The Crown accepted that individual sentences of imprisonment that are lower than those imposed by the judge would be within range and that it would be appropriate for the Court to order some concurrency in relation to the sentences.

1. It is well established that all offences relating to the sexual abuse of children are very serious and that factors personal to an offender carry less weight than general deterrence and protection of the community.[8] The courts recognise that significant lifelong harm is caused to children who are sexually abused.[9] Accessing or possessing child pornography is not a victimless crime - it is abhorrent because it supports a market for the production of images that involve the sexual exploitation of children.[10] For these reasons, this Court has repeatedly emphasised that, ordinarily, persons who commit child pornography offences will be sentenced to an immediate term of imprisonment.[11]
2. In the present case, it was common ground, and the judge found, that the applicant's offending was at the low end of the spectrum of seriousness. However, this characterisation of the gravity of the offending must be considered in the context of the maximum penalty of 15 years' imprisonment for each offence.
3. In relation to charge 1, whilst the offending was of short duration, it involved statements of vile sexual acts against children. Those statements were not simply items of conversation between two men which were without consequence. That is because the conversation was recorded and could be accessed by others, with the risk that the behaviour described in the statements could be normalised, and that individuals might be encouraged by the statements to physically engage in that behaviour or to access child pornography that depicts that behaviour.
4. In relation to charge 2, although only three items were involved, they depicted depraved sexual abuse of children, including a penetrative act.
5. The judge was correct to find that the applicant's moral culpability was 'considerable'.[12]
6. We accept that the applicant was able to call in aid important factors in mitigation including, in particular, his admissions to police, guilty plea, genuine remorse, good prospects of rehabilitation and the fact that he instigated and paid for treatment, and continues to undertake that treatment. In combination, the mitigatory factors upon which the applicant relies are very powerful.
7. We have had regard to all of the above matters (including the further evidence), current sentencing practices, and the statutory provisions set out previously which bear upon how the sentencing discretion is to be exercised in the present case. We are of the opinion that the nature and seriousness of the offending is such that only a sentence that involves a term of imprisonment for each charge is appropriate. Non-custodial dispositions such as conviction with a bond or a CCO would not adequately satisfy all the sentencing considerations that are engaged, particularly general deterrence and protection of the community. However, we agree with the judge that the mitigating factors upon which the applicant relies constitute special circumstances which warrant his immediate release on a recognisance release order under s 20(1)(b)(iii) of the Crimes Act.
8. The applicant will be resentenced as set out in the following table.

• Use of a carriage service to make available child abuse material

• Possession or control of child abuse material obtained or accessed using a carriage service

The judge's order pursuant to s 20(1)(b) of the Crimes Act will be amended to reduce the period of good behaviour from 3 years to 1 year, but will otherwise be affirmed.

The reporting period of 15 years under s 34 of the Sex Offenders Registration Act 2004 will be affirmed. The judge's forfeiture order will also be affirmed.

Total effective sentence 12 months' imprisonment, to be released on a recognisance release order after serving 6 months

1. We have provided that the two sentences be served concurrently because any cumulation would result in an inappropriately severe total effective sentence.[13]

[1] DPP v Phibbs [2022] VCC 2126 ('Sentencing remarks'). The plea of guilty followed resolution of the matter on 15 July 2022.

[2] In these reasons, proposed grounds of appeal are referred to as grounds of appeal.

[4] [2015] NSWCCA 183, [72] ('De Leeuw').

[5] [2016] VSCA 74; (2016) 50 VR 800, 810-11 [25] ('Garside').

[8] Garside [2016] VSCA 74; (2016) 50 VR 800, 808-811 [19]-[25], 819 [63].

[9] De Leeuw [2015] NSWCCA 183, [145].

[10] De Leeuw [2015] NSWCCA 183, [72]; Garside [2016] VSCA 74; (2016) 50 VR 800, 810-811 [25].

[11] See, eg_, DPP (Cth) v Zarb_ [2014] VSCA 347; (2014) 46 VR 832, 842 [27]; Garside [2016] VSCA 74; (2016) 50 VR 800, 810 [25], 819 [62].

[12] See [32] above.

[13] See Crimes Act s 19(7).