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District Court
New South Wales
Medium Neutral Citation: R v Hansen [2021] NSWDC 457
Hearing dates: 19, 23 February 2021 & 01 March 2021
Date of orders: 04 June 2021
Decision date: 04 June 2021
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision: For the State offences: an aggregate sentence of imprisonment of 4 years 3 months with a non-parole period of 3 years 2 months
For the Commonwealth offences: an aggregate sentence of imprisonment of 17 years with a non-parole period of 12 years
Legislation Cited: Crimes Act 1900
Crimes Act 1914 (C'th)
Crimes (Sentencing Procedure) Act 1999
Criminal Code 1995 (C'th)
Customs Act 1901 (C'th)
Evidence Act 1995
Cases Cited: Bae v R [2020] NSWCCA 35
Betka v R [2020] NSWCCA 191
Bugmy v The Queen [2013] HCA 37
Cheung v The Queen (2001) 209 CLR 1
Director of Public Prosecutions (C'th) v De La Rosa (2010) 79 NSWLR 1
DPP v Beattie [2017] NSWCCA 301
Fasciale v R [2010] 30 VR 643
Filippou v The Queen [2015] HCA 29
Hilli v R, Jones v R [2010] HCA 45
Huang aka Liu v R [2018] NSWCCA 70
Imbornone v R [2017] NSWCCA 144
Minehan v R [2010] NSWCCA 140
Muldrock v The Queen [2011] HCA 39
Neal v The Queen (1982) 149 CLR 305
R v Borkowski [2009] NSWCCA 102
R v Clarkson [2011] 32 VR 361
R v Porte [2015] NSWCCA 174
R v Qutami [2001] NSWCCA 353
Sheu v R [2018] NSWCCA 86
Tepania v R [2018] NSWCCA 247
The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383
Veen v The Queen (No. 2) (1988) HCA 14
Category: Sentence
Parties: Regina (Crown)
Peter Andrew Hansen (Offender)
Representation: Jennifer Single SC (Crown)
Talia Epstein (Junior)
Alex Radojev (Counsel for the Offender)
Director of Public Prosecutions (NSW) (Crown)
Victor Lawyers (solicitors for the Offender)
File Number(s): 2018/00304908, 2018/00308763 & 2019/00314711
Publication restriction: Statutory non-publication order for the identities of the victims and any information which might cause their identities to be ascertained
REVISED JudgEment
Introduction
1. These are the sentence proceedings in respect of Peter Andrew Hansen. They are continuing today for the purposes of judgement and the imposition of sentence.
2. Peter Andrew Hansen appeared for sentence in the District Court of New South Wales, Sydney, on Friday February 19, 2021 whereupon he confirmed his pleas of guilty to 31 offences, which, with the specified maximum penalties, are particularised in a table that appears below.
3. After the Crown and defence bundles were tendered, to accommodate the convenience of psychiatrist Dr Olav Nielssen to be called in the offender's case, the proceedings were adjourned to Tuesday, February 23, 2021 when he was available to attend court.
The Proceedings
1. Unfortunately, through no fault of the parties or the Court there has been some limited delay until the resolution of the proceedings today to allow medical treatment that I was required to undergo, and predominantly because of a trial which extended to six weeks longer than the original estimate given, and notwithstanding that at the request of the jury and with the consent of the parties in that matter the Court sat for extended periods each day to mitigate the disruption to arrangements jurors had made with their employers to allow them to complete their service. On one occasion this matter could not proceed because of industrial action within the Department of Corrective Services.
2. The hearing proceeded on the first day, after which I adjourned for the evidence of Dr Nielssen to be taken. Thus, the matter was before me on February 19 and 23, 2021. On that second day Dr Nielssen gave evidence as did the offender. The matter was next before me on 31 March 2021, when further submissions were delivered orally on behalf of the parties. The proceedings were adjourned to 19 March 2021 with a one-day estimate for the delivery of judgement and the imposition of sentence. I excused counsel for that appearance.
3. Thereafter, on 15 March 2021 before the adjourned date, upon my instructions my associate wrote to the parties in this matter to advise that I was presiding in the aforementioned trial with an initial estimate of four weeks. Dates for the further hearing of this matter were then offered. 26 March 2021 was selected at suitable to all parties. On that date, there was industrial action at the Goulburn Correctional Centre, and although time had been set aside for the resolution of the matter it could not proceed. The industrial action prevented there being sufficient officers to service the audio visual link suites at Goulburn Correctional Centre.
4. The length of the trial continued to grow, exponentially I might add, in the days that followed, and ultimately it was necessary again for my associate to communicate with the parties to indicate that the matter could not proceed on the date appointed after the industrial action had resolved. The days between 2 and 4 June 2021 were selected and were suitable to all parties for the matter to proceed, and thus it is listed today for final disposition.
5. There is a lot of material to proceed through in the assessment of this matter, and I am hoping to be able to conclude the judgement by this afternoon, but there is a very real risk that I will not be able to conclude until tomorrow morning.
6. The delay in final disposition of these proceedings is regrettable, for it must carry a measure of inconvenience to the offender not having his fate determined before this, but ultimately, against the history of the proceedings and the sentences to which he is exposed, it is of limited significance.
7. This said, I have not overlooked that at least to some minor extent the offender has suffered as a consequence of these delays and I have brought that to account to a very limited extent.
The Offences
1. The offences upon which sentence is to be determined are a blend of New South Wales and Commonwealth crimes, which are set forth in a table hereunder, together with the maximum penalties specified. [1]
Sequence Offence Maximum Penalty
H# 445/1 On 6 October 2018. Did intentionally import prohibited tier 2 goods without approval, namely, child pornography material. 10 years imprisonment & 2,500 penalty units
S 233BAB(5) Customs Act 1901 (Cth)
H# 956/2 On 9 October 2018, did possess child abuse material. 10 years imprisonment
S 91H(2) Crimes Act 1900 (NSW)
1 – 14, 22 Between 13 April 2014 and 21 December 2017, did produce child pornography outside Australia, namely in the Philippines and Vietnam. 15 years imprisonment
S 273.5(1) Criminal Code (Cth)
15 – 18 Between 9 October 2016 and 3 January 2017, did use a carriage service to transmit child pornography. 15 years imprisonment
S 474.19(1) Criminal Code (Cth)
19 [2] On 3 January 2017, did use a carriage service to cause child pornography to be transmitted to self. 15 years imprisonment
S 474.19(1) Criminal Code (Cth)
20 On 7 October 2018, did possess child abuse material. 10 years imprisonment
S 91H(2) Crimes Act 1900 (NSW)
23 – 28 Between 11 November and 28 December 2017 did engage in sexual intercourse with child outside of Australia, namely in the Philippines. 20 years imprisonment
S 272.8(1) Criminal Code (Cth)
29 – 31 Between 11 November 2016 and 18 November 2016 did engage in sexual activity (other than sexual intercourse) with a child and the sexual activity (other than sexual intercourse) with the child occurred outside of Australia, namely the Philippines. 15 years imprisonment
S 271.9(1) Criminal Code (Cth)
The Structure of the Sentences
1. In due course I shall specify an aggregate sentence for the New South Wales offences, and a separate aggregate sentence for the Commonwealth offences, after specifying the terms of imprisonment decided for the individual offences, and shall specify the respective commencement dates for each of the aggregate sentences.
2. The aggregate sentencing scheme in s 53A Crimes (Sentencing Procedure) Act 1999, may also be used for the offender when sentenced to more than one Commonwealth offence: DPP v Beattie [2017] NSWCCA 301 at paras [146] and [210]. An aggregate sentence cannot be imposed for a combination of Commonwealth and State offences: Sheu v R [2018] NSWCCA 86 at para [26]. Separate aggregate sentences are required, one for the New South Wales offences and one for the Commonwealth offences: Fasciale v R [2010] 30 VR 643 at para [27]. I note that there has been legislation introduced into the Crimes Act 1914 (Cth) to accommodate the use of aggregate sentences in Commonwealth matters.
The Utility of the Pleas of Guilty
1. It is accepted that the offender pleaded guilty early in these prosecutions, and is therefore to be given the benefit of discounts for each of the sentences selected as appropriate for the individual offences.
2. In the case of the New South Wales offences there shall be a discount of 25% in accordance with authorities such as, for example, R v Borkowski [2009] NSWCCA 102. This will be applied to the sentences found to be appropriate upon the synthesis of the objective facts and circumstances and those of a subjective nature, including the extent to which the offender has demonstrated contrition or remorse and his capacity for rehabilitation.
3. In the case of the Commonwealth offences, they shall also attract a discount at that level: s 16A(2) Crimes Act 1914 (Cth); Huang aka Liu v R [2018] NSWCCA 70 at para [9]. This will be applied to the result upon the synthesis of objective and subjective considerations, including subjective matters associated with a guilty plea, such as contrition and remorse which do not attract a specific sentencing discount: s 16A(2)(f) Crimes Act 1914 (Cth); Betka v R [2020] NSWCCA 191 at para [59]; Bae v R [2020] NSWCCA 35 at paras [54] to [56]; R v Borkowski ibid at para [32]. It must be borne in mind that the Court must avoid double counting in this respect.
Pre-Sentence Custody
1. The offender was arrested on October 6, 2018, when he came to the notices of authorities upon his return to Australia. He was granted bail, which included security that he could not arrange until October 8, 2018, but upon doing so he was immediately arrested by the Australian Federal Police and has continued in custody ever since.
2. Whilst in custody he was arrested in relation to his further offending as it was uncovered. In each case he was bail refused. This occurred on October 9, 2018; March 4, 2019; September 11, 2019; and June 22, 2020. In respect of each offence charged on those occasions, he was bail refused.
3. Though his custody for each of his offences did not commence at the one time, because I intend to impose two aggregate sentences with what I find to be appropriate concurrence and accumulation, the first of them, for the New South Wales offences, shall commence on October 6, 2018.
The Facts
1. The crimes to which the offender pleaded guilty were committed within the following timeframe.
* Between April 13, 2014 and December 21, 2017, sequences 1 to 14; and 22;
* Between October 9, 2016 and January 3, 2017, sequences 15 to 18; on January 3, 2017, sequence 19.
* Between November 11, 2016 and November 18, 2016, sequences 29 to 31.
* Between November 11, 2016 and December 28, 2017, sequences 23 to 28 against nine children.
* On October 6, 2018, sequence H# 445/1.
* On October 7, 2018, sequence 20.
* On October 9, 2018, sequence H# 956/2.
1. Accordingly, the offences occurred over a period of four years and almost six months between April 13, 2014 and October 9, 2018.
2. What are described as the "contact offences" in sequences 23 to 31 were committed upon nine children, the victims aged between ten and 14 years of age.
3. The offences against New South Wales law were in respect of four devices with 100,000 files of child abuse material, using what is said to be a unique filing system. This included material stored as early as 2008 and as recently as 2018, sequences H# 956/2 and 20 respectively.
4. The summary of the offences that I have so far provided was assisted with a document provided by consent prepared by the Crown summarising the charges, and a brief description of the facts relevant to each.
Executive Summary
1. The agreed statement of facts, signed on behalf of the Crown and by the offender, in his instance by his solicitor Mr Huynh on 20 November 2020, begins with an executive summary, which will provide a general understanding of the range of the conduct upon which the offender engaged.
2. On 6 October 2018, the offender came to the attention of authorities upon his return from overseas in possession of electronic items, which on examination upon his arrival established that he was importing child abuse material. Analysis of the devices and of the material contained on them led to him being charged with the transmission and production of child abuse material. He had transmitted about 36 images, sequences 15 to 18, and produced a total of about 675 photos and videos.
3. The Australian Federal Police visited the Philippines where they interviewed victims depicted in the child abuse material the offender possessed. As a result of those interviews and investigations, the offender was charged with engaging in sexual intercourse and engaging in sexual activity outside of Australia.
4. In summary, in relation to the contact offending in the Philippines, between 11 November 2016 and 28 December 2017, the offender committed sexual offences against nine child victims aged between ten and 14 years at the time of the offences.
5. More particularly, on 11 November 2016, the offender engaged in sexual intercourse with four children victims, sequences 23 to 26; on the same day he engaged in sexual activity with a fifth child victim in the Philippines, sequence 29; on 15 November 2016, he engaged in sexual activity with a sixth child victim, sequence 30; on 18 November 2016, he engaged in sexual intercourse with a seventh child victim, sequence 27; and in sexual activity with an eighth child victim, sequence 31.
6. Between 25 and 28 December, 2017, the offender engaged in sexual intercourse with a ninth child victim, sequence 28.
7. In relation to the State offences, after his arrest, the AFP executed a search warrant at his house. They seized several electronic devices, including computers, hard drives and cameras. Four of those devices contained child abuse material. In excess of 100,000 files were stored across the four devices using a unique filing system. Some of the child abuse material possessed by the offender had been stored as early as 2008, and as recently as 2018; sequences H# 956/2 and 20 respectively.
Background
1. The agreed statement of facts then provides a background description, including reference to the arrest at Sydney International Airport. He was charged with importing prohibited tier 2 goods, namely, child pornography material, and was granted conditional bail, including that he deposit $40,000 as security. He remained in custody unable to do so until late October 2018 when he was able to deposit the requisite money, but upon his release he was immediately arrested and charged with possessing child abuse material, and thus his custodial period commenced at the point of his arrest on 6 October 2018.
2. On 9 October 2018, he was refused bail in respect of the charge sequence H# 956/2.
3. The background continues with a description of the periods in which he has been in custody in respect of each of the charges that were prepared against him sequentially, as I have outlined.
4. All of the child pornography and child abuse material found on devices seized from the offender was classified according to the Child Exploitation Tracking System; this provides five categories.
* Category 1, sexually suggestive posing with no sexual activity.
* Category 2, non-penetrative sexual activity between children, also masturbation by a child.
* Category 3, non-penetrative sexual activity between adults and children.
* Category 4, penetrative sexual activity between children or between adults and children.
* Category 5, sadism, humiliation or bestiality.
Sequence 1; 13 April 2014; Production of child pornography overseas
1. On 3 April 2014, the offender arrived in the Philippines after flying from Australia by way of Singapore.
2. Between 11 April and 17 April 2014 the offender took several photos of victim 1 and victim 2 at restaurants at the Metro Park Hotel in Cebu, Philippines. In these photos, victim 1 and victim 2 are seen eating at the restaurants and swimming in the hotel pool. In one of the photos the offender is seen with another adult male and three children, one of those children being victim 2. At the time that the photographs were taken victim 1 and victim 2 were between ten and 14 years of age.
3. On 13 April 2014, the offender took victim 1 to his room at the Metro Park Hotel. While there he took ten photographs of victim 1 that were child pornography.
4. They depicted the following:
A. Victim 1 holding his erect penis;
B. Victim 1 masturbating;
C. Victim 1 posing naked on the bed; and,
D. Victim 1 lying naked on the bed.
1. The ten photographs have been classified according to the Child Exploitation Tracking System. There were five images one category 1, five images within category 2. There were none within categories 3, 4 and 5. Thus he produced the images, the misconduct involved one child, and the offender travelled to the Philippines to there engage upon his activity.
2. I have come to the view that the offending on this occasion fell below mid-range of objective seriousness.
Sequence 2; 17 April 2014; Produce child pornography overseas
1. The next offence is sequence 2, on 17 April 2014, producing child pornography overseas. On 17 April 2014, the offender took victim 1 and victim 2 to his room at the Metro Park Hotel, and there took 24 photographs that were child pornography.
2. They depicted the following:
A. Victim 1 and victim 2 holding their erect penises,
B. Both victims lying naked together in the bathtub, and
C. Victim 1 masturbating his penis while victim 2 lies next to victim 1 watching.
1. The offender also produced one nine-second video of victim 1 and victim 2 lying naked together in the bathtub, where victim 1 is masturbating his own penis.
2. The 24 photographs and one video have been classified according to the Child Exploitation Tracking System. Seven images were within category 1, 17 were within category 2 as was the video, bringing the total to 24 photographs and one video. There were none of these within categories 3, 4 or 5.
3. The offender left the Philippines on 19 April 2014.
4. I have come to the view that the offending on that occasion fell below mid-range of objective seriousness, but sequence 2 is more serious than the offence charged in sequence 1. In due course, I shall make reference to the principles that guide the Court in assessing objective seriousness of offending for the purposes of determination of sentence.
Sequence 3; 9 August 2015; Produce child pornography overseas
1. The next offence is sequence 3. On 8 August 2015, the offender arrived in the Philippines from Australia. On 9 August 2015, the offender took 76 photographs of victims 3, 4, 5, 6 and 7 in his hotel room.
2. These were child pornography which depicted the following:
A. Four victims lying naked on a bed watching a mobile device which was held by victim 4. Victim 4 and victim 5 are masturbating their penises;
B. Victim 5 and victim 7 lying on a bed masturbating their own penises. Victim 5 is naked and watching a mobile device. Victim 7 is clothed, but his penis is exposed.
1. The victims were between ten and 14 years of age when the photographs were taken. The 76 photographs have been classified. 17 were within category 1, and 59 were within category 2. None fell within category 3, 4 or 5.
2. I also find this offence to be below mid-range, but slightly more serious than the events in sequence 2.
Sequence 15; 9 October 2016; Transmit child pornography
1. The next offence discussed in the statement of facts is sequence 15. This was on 9 October 2016, and was the transmission of child pornography.
2. On 9 October 2016, the offender used a program called Brosix to exchange messages with another person over the Internet. The offender used the online name described as a "moniker" in the facts, "Baga Tay". The other person used the "moniker", "Maliboy Hornbag".
3. Brosix is an encrypted instant messenger program that allows users to communicate with one another over the Internet. Users can send text messages, images, videos and transfer files. Brosix uses a 256-bit (Advanced Encryption Standard) encryption to secure messages.
4. The offender and Maliboy Hornbag engaged in the following exchange:
"OFFENDER: Did you like the two in the garden
MALIBOY HORNBAG: I liked one in the garden the other is good looking, but too mature and in the pool there were the far right and small one
OFFENDER: The smaller one is a sucker
MALIBOY HORNBAG: Nice
OFFENDER: Hope so
MALIBOY HORNBAG: Well not long u will be there
OFFENDER: Tue. Hope to keep the camera busy
MALIBOY HORNBAG: Lol
1. During this exchange of messages, the offender sent two images to Maliboy Hornbag that were child pornography. Both images were classified within category 1.
2. They depicted the following:
A. Victim 21 standing clothed, but with shorts lowered exposing his penis, and
B. Victim 21 sitting naked on a bench.
1. This offence also falls below mid-range of objective seriousness and closer to the bottom end of the range of objective seriousness for such misconduct.
Sequence 16; 28 October 2016; Transmit child pornography
1. The next offence is sequence 16, on 28 October 2016, the transmission of child pornography. On 28 October 2016, the offender used Brosix to, again, exchange messages with Maliboy Hornbag. These exchanges [3] were:
"OFFENDER: I am still thinking about how I can milk the max out of my poolside weekend in terms of what I can get on my memory card
MALIBOY HORNBAG: U know it's not the same place anymore and im told less and less tourists are going to, so be careful
OFFENDER: Also, to where I should I upload them
MALIBOY HORNBAG: U will have to upload to a cloud storage place _ don't bring back with
OFFENDER: Im not a tourist, . Im a businessman. Duh....
But question is
MALIBOY HORNIBAG: Same thing
OFFENDER: Where on the cloud
No, it's not because
MALIBOY HORNBAG: Mega.nz
OFFENDER: More and more businesses are doing what I'm doing there
Offshoring/outsourcing You know, I am looking at the stuff about Thai king being about to die.
My bloody luck he dies a few days before I get there and everything is shut!
BTW, on the last question. Did R tell you how much Abon cost?
MALIBOY HORNBAG: Who?
OFFENDER: The King of Thailand
MALIBOY HORNBAG: oh didn't know, lol ... hehe
OFFENDER:Yes, hopes she lasts long enough for me to get in and out
MALIBOY HORNBAG: Abon? haha they all the same they get over lk
OFFENDER: fucking ridiculous
MALIBOY HORNBAG: I refuse to do it
OFFENDER: Did he put out?
MALIBOY HORNBAG: No just pics
OFFENDER: [Emoji of a sad face]
MALIBOY HORNBAG: and Im told he does fuck all anyway
As most
OFFENDER: I got exited then
MALIBOY HORNBAG: I hope Cebu is much less coz I'm not going to ma_nila again
OFFENDER: I thought you said He does fuck all: p
MALIBOY HORNBAG: Yes that's right
he does fuck all
OFFENDER: Play on words
MALIBOY HORNBAG: so anyway, how are you? and hows all in Cebu?
OFFENDER: Im not there yet
MALIBOY HORNBAG: I know, but ... how are they"
1. He transmitted three images of child pornography within category 1. The agreed statement of facts has been supplemented with a description of these items. One showed victim 17 standing naked in a bathroom masturbating. The second showed victim 17 standing naked in a bathroom, and a third showed victim 17 standing naked in the bathroom. This document dated 23 February 2021 has been included with the agreed statement of facts.
2. The exchanges continued:
"OFFENDER: I have good things here for you
New
But I can't find
I will if I persist a bit
MALIBOY HORNBAG: no prob all good, I appreciate it .... the first pic you sent i recognize that one...that was last year with art..the other 2 dont know
OFFENDER: still not hat Im after, but I don't think you've seen
MALIBOY HORNBAG: yup not seen, thanks [: )]
ah yes I did see him but not these pics just a couple before thanks
OFFENDER: On the menu
MALIBOY HORNBAG: meat and potato [: P]
OFFENDER: yes, Im worried I might come backstufed
But my walter very empty
Wallet
MALIBOY HORNBAG: well dont overdo it coz they will expect too much next time, thats the problem .. if you overspend ... they become greedier thats what manila is like now
so try not pay them any more than what its worth, no matter the please please unlce etc
look what ralph and his friends have done .. I mean seriously .. 1500 for a session and in some cases 3k plus spending shopping etc..and im not kidding
thats the english idiot who does that
and Ralph pays them no less than 1200 for a shoot
fucking nuts
OFFENDER: well, not only I woont, i can't
MALIBOY HORNBAG: good.
Don't
coz I wont be able to compete with that, lol
OFFENDER: most get 250-300 plus a gift and an outing and food
MALIBOY HORNBAG: ill pay what you say to do
OFFENDER: Not taxi
MALIBOY HORNBAG: Yep
That's good
OFFENDER: Outstanding performers and those I really like I might pump up to 500. But that's the absolute limit
MALIBOY HORNBAG: so ill go to Op shop before going and hand them those haha
I agree with that
OFFENDER: catch of the day is my fave
and at the moment, Woollies has a sale in Bonds
I got 6 pairs of stunning little bright pink and white striped briefs, i bought 2 x 12, 14, 16
$4.50 each
MALIBOY HORNBAG: I think Joey must be grateful to you
OFFENDER: Dont want gratitude, just wNT HI TO KEEP DELIVEERING IF ANYTHING, I FEAR THIS TIME HE MIGHT HAVE OVERDONE IT
MALIBOY HORNBAG: well what I mean yes he wouldnt be playing like this if you werent donating to the cause .. so he has to perform
OFFENDER: right
MALIBOY HORNBAG: Which reminds him I guess I will have to start contribution too
OFFENDER: but compared to MNL, I can't complain
Mind you, the Laguna crew willonly get Cebu rates.
They can like it or lump it
Costing enough to get them down there
MALIBOY HORNBAG: Indeed coz its an expensive adventure
Yup
OFFENDER: Although it really shouldbe good
Did I tell you I shoted Art a trip down there?
Only cost 500p
And he was able to recon
anyway, as I was saying I sent Art for a look around
Looks good
High wall
Locked gate
No two storey houses
caretaker not onsite
MALIBOY HORNBAG: yes but can the house next door see in from the balconys
OFFENDER: Read above
MALIBOY HORNBAG: yes but still if they are double storey etc
but anyway just be safe
are u going via private car
or taxi
OFFENDER: Nope they are going by bus
And I am following on a later bus
MALIBOY HORNBAG: ewww why by bus?
OFFENDER: Price
MALIBOY HORNBAG: bah
OFFENDER: I don't mind bussing
its ony 90 mins
Im bussing it all the way back from Bicol
MALIBOY HORNBAG: `fair nuff ... u doing that on your own?
OFFENDER: Hoping to havecompany :p
MALIBOY HORNBAG: I wouldn't travel with minors on your own
OFFENDER: No way
Seeing J not available, with Art
MALIBOY HORNBAG: oh ok that's fine then if Art and whoever accompany you .. safer."
1. Thereafter, there is an exchange which is in the following terms:
"MALIBOY HORNBAG: so all in all 2 weeks or less?
OFFENDER: 4 weeks in all
2 weeks working
MALIBOY HORNBAG: Oh?
Wow that changed
OFFENDER: 10 days hols in Phils
4 in SKK
MALIBOY HORNBAG: from 2 weeks to 4 lol
FFENDER: No. Read above
MALIBOY HORNBAG: 4kk and 10 in phi Is
where are the other 2 weeks?
OFFENDER: 2 weeks wrking in Cebu
MALIBOY HORNBAG: Hahaha
so ujmmm you wont be playing during that time then hey?
Time
OFFENDER: Oh, I think I might. But I will be stuffed each night, coz I have to be up at 5.40am on weekdays.
On the other hand
I can finish by a little after 2
So I can play from then until I drop
MALIBOY HORNBAG: so inessence a nice 4 weeks of fun .. sounds
great to me .. I still gotta think ..epending on if its V or Cebu that i need a house for around 5 weeks .. with a pool
OFFENDER: Yes, it's a shame Pansol is so prohibitive for ny longer than a night
MALIBOY HORNBAG: In laguna
OFFENDER: right
MALIBOY HORNBAG: actually there are some very lovely houses on the beach for rent here and there
OFFENDER: True
it's a shame I drew a dud in Cebu
Joey says he has about 6-8 who want to make a party one night
MALIBOY HORNBAG: U mean the place your staying
OFFENDER: An indoor party
The dud was at the beach
MALIBOY HORNBAG: oh yeh that needs a private place
OFFENDER: No, the play I stay is grat
Really happy
And very safe
Ideal, in fact
Below street level
back entrance
MALIBOY HORNBAG: but stream of too many visitors may not be safe
OFFENDER: That is the beauty of June! and Lyn
MALIBOY HORNBAG: but they cant be there always? or do you allow that?
OFFENDER: House keeper talks to them
And with abies in arms
MALIBOY HORNBAG: House keeper thre too? good grief
OFFENDER: They tell them that all these boys are their young nephews, coysins and friends who visit whilst they arein town from Compostela Upstairs
Never go near us
Yjeu also know that
MALIBOY HORNBAG: haha umm like im sure they all belive it heeh
OFFENDER: I go off to work with briefcase at 7.00 am each day well, when the boys arrive
on the whole
Im not there
MALIBOY HORNBAG: Oh
OFFENDER: I COME BACK AFTER THEM
MALIBOY HORNBAG: Well .. if it works for ya
OFFENDER: WHICH THE UPSTAIRS PPL see
The problem is
I can't have 68 naked boys roaming around stairs while Junel and Lim are there
5-8
Sorry
Not even I do 68! :D
MALIBOY HORNBAG: no i know that's why I said do u allow them there all day?
OFFENDER: Sure why not
MALIBOY HORNBAG: 5-8 is over the top too but now and then it's fine .. IF they all play and do as asked
OFFENDER: June l and Lim are there to make sure they don! make trouble
No no,3 is my usual limit
We can just lock the door on my big bedroom
I'm sure Lin and Junel know what's happening, but who cares
MALIBOY HORNBAG: ask Joey to start perusing houses with a pool so they're private for rent near beach etc or somewhere [:P]
of course they know what happens mao
Junel knows she would know
OFFENDER: I could have 5-8 in the house, we could lock the doors and pull the curtains.
Problem is what do you do with Junel and Lyn
the noise factor will be hard to control
Cant have them in the house during a nude party
U know what they are like
A quiet nude party :p
MALIBOY HORNBAG: With Joey [:p]
OFFENDER: thats no problem
MALIBOY HORNBAG: I said that as a joke now I'm thinking ewww perhaps that will happen Yuck
OFFENDER: Exept he has a problem get them to all fuck him. Id have to make sure I blow them all first
MALIBOY HORNBAG: No way
OFFENDER: oh, he and I wander around naked with boys b4 when we get a suite at the Crown Garden Hotel
MALIBOY HORNBAG: there is no way in this worl will i have joey in a room .. art or anyone while im doing my thing .. its a real turn off .. blehhhhhhhh
OFFENDER: hed normally take one or two into the bathroom to fuckhim
MALIBOY HORNBAG: sou didnt touch those ones i guess
OFFENDER: no way
they were upto him to deal with for the night
MALIBOY HORNBAG: so do u pay joeys tricks?
or himself?
OFFENDER: Directly, him, indirectly, me
MALIBOY HORNBAG: gotcha
But
wouldnt pay him more than 500 a visit?
OFFENDER: For Joey's? U R kidding 200 if theyre lucky
MALIBOY HORNBAG: no no
Joey
I mean joey
what do u give him
OFFENDER: I tend to pay him by the week
MALIBOY HORNBAG: I see
OFFENDER: better that way too
MALIBOY HORNBAG: Much better
OFFENDER: $100 for 7 days
MALIBOY HORNBAG: wo
OFFENDER: or 3000 more specifically
MALIBOY HORNBAG: wow
thats allot
OFFENDER: no
MALIBOY HORNBAG: Oh 3k
thats fine
plus outings and food
OFFENDER: 400+ a day
Yes, right
and the offer of a bed, ut he likes to lie on the uch and watch tv all night
MALIBOY HORNBAG: fair enough
ist fine
OFFENDER: Which is fine by me
Don't forget
MALIBOY HORNBAG: well afraid im not that generous
OFFENDER: He does jobs other thanprocurement
I like my time alone with boys
Buying groceries
Making phone calls"
1. The exchanges illuminate the attitude of the offender and this person with whom he was communicating toward the egregious misconduct upon which he is to be sentenced here today. The transmission of the pornography, sequence 16, which occurred in the course of those exchanges is below the mid-range, notwithstanding the abhorrent nature of the conversation that passed between these two men.
Sequence 4; 6 November 2016; Produce child pornography overseas
1. We are at sequence 4, the production of child pornography overseas on 6 November 2016.
2. On 5 November 2016, the offender arrived in the Philippines having flown from Australia via Thailand. On 6 November 2016, he took nine photographs of victim 8, victim 9, victim 10 and victim 11 at a poolside area while eating a meal together. Later that day, the offender took 11 photographs of victim 8, victim 9, victim 10 and victim 11 in his hotel room. They were child pornography, including victim 11 standing naked with his underwear around his lower legs; victim 8 and victim 9 lying on a bed where victim 9 is naked and watching heterosexual adult pornography on a mobile device owned by the offender, with one victim lying naked on a bed with a pillow over his head. Victim 8, victim 9, victim 10 and victim 11 were between ten and 14 years of age when the photographs were taken. These were classified. All fell within category 1. There were none of the photographs within categories 2, 3, 4 or 5. Once, again, I have sequence 4 below mid-range of objective seriousness.
Sequence 5; 7 November 2016; Produce child pornography overseas
1. The next offence is sequence 5, produce child pornography overseas on 7 November 2016. On 7 November 2016, the offender took 55 photographs of victim 10, victim 11 and victim 12 in his hotel room. They were child pornography. Victim 10, victim 11 and victim 12 were on a bed masturbating themselves, and were posing naked. The offender also produced a one minute 30 second video of them. In the video, each victim is masturbating their penis. The victims are speaking in Filipino during the video. Victim 10 or victim 12 said, "Peter. Here it comes, Peter." Victim 10 or victim 12 said, "Here it comes, Peter. Hey, Peter." Victim 11 said, "There's none from me, Peter." Victim 12 was between ten and 14 years old when the photographs were taken. The 55 photographs and one video were classified. There were 43 images that fell within category 1; 12 fell within category 2; the video fell within category 2, bringing the total to the 55 images and one video. None of the material fell within categories 3, 4 or 5. Sequence 5 I have below mid-range, but at a higher point on the scale of seriousness compared with the matters with which I have already dealt.
Sequence 6; 10 November 2016; Produce child pornography overseas
1. Sequence 6, produce child pornography overseas on 10 November 2016. On 10 November 2016, the offender took 11 photographs of victim 13 in his hotel room that were child pornography. The photographs show victim 13 showering naked in the bathroom. He was between ten and 14 years of age when these were taken. The 11 photographs and one video have been classified. All fell within category 1. Sequence 6, I have that below mid-range of objective seriousness toward the lower end.
Donozo and Junel
1. The next portion of the statement of facts deals with Donozo and Junel.
2. Joey Donozo is a 34-year-old Filipino national who lives in the Philippines. He was introduced to the offender on Facebook by an intermediary.
3. Junel Limoran is a Filipino national who lives in the Philippines. He is the offender's adopted son.
4. Both of those persons were a subject of reference in the course of the exchanges which I read.
5. Sometime in 2014 or 2015, Donozo travelled from Cebu to Manila by ferry, with Junel, to meet the offender for the first time. Donozo paid for the ferry tickets for both with money given to him by the offender. They met at a hotel in Manila. Donozo and the offender stayed at the hotel for a week before Donozo returned to Cebu by ferry. He paid for the fare with money given to him by the offender.
6. The offender and Donozo continued to contact one another using Facebook. Through these communications, the offender asked Donozo to find some boys for him. Donozo then took photos of boys in Cebu under the pretence of a modelling shoot, and posted the photos on a Facebook page entitled, "Vasheraine photoshoots". The offender would view the photos on Facebook and tell Donozo which boys he liked and the boys he wanted to meet the next time he visited the Philippines.
7. The next time the offender met Donozo it was in Cebu, the Philippines. He gave Donozo a digital camera as a thank you present for introducing him to Junel. The offender paid 300 pesos, the equivalent of AUD $8, each time he brought children to the offender's hotel.
Victim 14
1. The facts then deal with victim 14.
2. Victim 14 was introduced to the offender by Donozo. He knew Donozo from playing basketball. Victim 14 would go to school, and then hang out with his friends and Donozo. Donozo would ask them to take pictures in exchange for money, and would tell them that the pictures were safe and would not be published on any social media or Facebook. Donozo would then take pictures of victim 14 and the others in a room, and sometimes in a mall.
3. I will just go back to the phrase, "Donozo would ask them to take pictures in exchange for money." I understand this should be read, "Donozo would ask to take pictures of them in exchange for money."
4. The first time victim 14 met the offender, he provided the victim with his Facebook profile name, "Juan Del Forte". They later communicated through Facebook. The offender gave him money after his first meeting.
Victim 15
1. The facts then deal with victim 15. He was introduced to a photographer named "Vasheraine", an alias used by Donozo. Donozo approached him one day whilst he and his friends were playing billiards and told them to get their school uniform for photos to be taken at the Plaza Independecia. Donozo paid them for these photos.
2. Several days later, Donozo met victim 15 and his friends outside of his school and told them to go with him to the offender's house. They sat down at the offender's house and had a conversation and then went home after being given money for their fare. The friends were referred to as "John Edcel", "Klyde Opone", "Jobert" and three others.
Victim 16
1. The facts then deal with victim 16. On or about 9 November 2016, victim 16 met Donozo outside his school gate. Donozo told him to cut school to have his photograph taken. Donozo took victim 16, and four or the boys, victim 14, victim 15, victim 18 and one other boy, to Plaza Independecia and Ayala Mall where they were photographed in the plaza. After taking photographs, Donozo gave victim 16 and the four other boys 100 pesos each. This is the equivalent of AUD $2.70.
Victim 17
1. Victim 17 met the offender through Vasheraine, who added him on Facebook. As was said, "Vasheraine" is an alias used by Donozo. Donozo organised for a photoshoot to take place, and victim 17 attended. Donozo then introduced victim 17 to the offender as "Peter". Though written thus, it would seem that this should be expressed that the offender was introduced as "Peter".
Victim 18
1. Victim 18 first communicated with Donozo on Facebook. Victim 18 would go to public places where Donozo would take modelling pictures of him.
2. Against that background, the facts then deal with sequences 7, 23 to 26 and 29.
Sequence 7; 11 November 2016; Produce child pornography
Sequence 23 – 26; 11 November 2016; Engage in sexual intercourse
Sequence 29; 11 November 2016; Engage in sexual intercourse
1. Sequence 7 is a charge of producing child pornography on 11 November 2016, sequences 23 to 26, engaging in sexual intercourse on the same date; and sequence 29, engage in a sexual activity on the same date.
2. On 11 November 2016, Donozo met victim 14, victim 15, victim 16, victim 17 and victim 18 and escorted them to a villa that Donozo had rented at the direction of the offender. The offender was waiting at the house and gave each boy a hug upon arrival. The offender and Donozo escorted the victims inside the house and into the living room. Junel and his partner were also present. Once in the living room, the offender gifted the victims a polo shirt and a pair of swimming shorts each. He told them to get out of their school uniforms and change into the clothes that he had given them. He took several photos of the victims while they were still wearing their clothes.
Sequence 7
1. The facts specifically referable to sequence 7 are as follow: Donozo directed the victims to enter the offender's room. Once inside the room, all of the victims were told to take off their shirts by the offender. The offender was in his underwear and holding a camera. Each boy was told to take off their shirt, and was photographed wearing only the swimming shorts that the offender had given them. All of the boys were then told to take off their shorts and were photographed naked. In total, the offender took 51 photographs of victim 14, victim 15, victim 16, victim 17 and victim 18 in his hotel in the Philippines that were child pornography.
2. These were:
A. Victim 14, victim 15, victim 16 and victim 18 lying naked on the bed masturbating their while victim 17 knelt on the bed masturbating;
B. Victim 14, victim 15 and victim 16 lying naked on the bed masturbating as victim 18 lies on the bed naked watching adult heterosexual pornography on an Asus Zenbook UX301 laptop computer that he is holding;
C. Victim 18 wearing black underwear whilst holding his exposed penis;
D. Victim 18 sitting on a bed whilst masturbating;
E. Victim 14, victim 15, victim 16, victim 17 and victim 18 sitting naked on the bed holding or masturbating their penises while appearing to pose for photographs.
1. While these photographs were being taken, the victims were of the following ages: victim 14 was 11 years old; victim 16 and victim 18 were 14 years old; and victim 15 and victim 17 were between ten and 14 years old. The 51 photographs were classified. 13 fell within category 1, 38 within category 2, there were none within categories 3, 4 or 5.
2. Sequence 7 is below mid-range, but further along from the low end of objective seriousness toward a point or at a point closer to within the middle range of objective seriousness.
Sequence 23
1. Sequence 23 involved the following conduct: after the nude photographs were taken, the victims were told by the offender, who was now naked, to stand in a line. The offender then sucked the penis of victim 14 for about three minutes before the offender moved on to another boy. After this, victim 14 went to lie down on the bed and remained nude. Victim 14 was given 1,500 pesos by the offender, equivalent of AUD $40, and was allowed to keep the polo shirt and the swim shorts.
2. Sequence 23, I have placed below mid-range, but nearer to the mid-range of objective seriousness than the low end of the range of objective seriousness of such misconduct.
Sequence 24
1. While victim 16 was standing in the line, the offender sucked his penis for about two or three minutes. He also kissed victim 16's body and gave him a hug. The offender was masturbating while he performed oral sex on victim 16. During an interview with the police, victim 16 said the offender performing fellatio on him made him feel, "Not good...because, ah, he [offender] kissed the lips and the body of others." Victim 16 was paid 250 pesos by Donozo, about AUD $7. He had been given the money by the offender. He was also allowed to keep the polo shirt and swim shorts that were given to him by the offender.
2. Victim 16 went to the offender's house a day or two later. He had been invited there by Donozo. When he arrived, he found out there were other people inside, he was not needed, and so was told to leave. This brief description is a fair reflection of the disregard one might be find to have been shown towards these children who were wanted for sexual exploitation, including their rejection when not needed because others were available.
3. This offence is also below mid-range but about the same level as the objective seriousness made in respect of sequence 23.
Sequence 25
1. While victim 18 was standing in the line, the offender sucked his penis for about two or three minutes. He also kissed victim 18's body and gave him a hug. The offender was masturbating while he performed oral sex on victim 18. After the offender finished with victim 18, the offender performed oral sex on another boy. Victim 18 went and sat on the bed in the same room and watched pornography. At some stage the offender took photographs of victim 18 while he was sitting on the bed watching pornography. The offender paid victim 18 500 pesos, the equivalent of AUD $18.50. The victim was also allowed to keep the polo shirt and swim shorts.
2. Sequence 25 I have placed on the below mid-range on the assessment of objective seriousness equivalent to the position cited for sequences 23 and 24.
Sequence 26
1. While victim 15 was standing in the line, the offender masturbated victim 15's penis, after which the offender also sucked and licked victim 15's penis and kissed his chest. The offender performed oral sex on the victim for around three minutes. Victim 15 then laid down on the bed with another victim so they could see the offender's new phone and watch pornography on the offender's laptop. The offender paid this victim 250 pesos, the equivalent of about AUD $7, and allowed him to keep the polo shirt and the swimming briefs.
2. I have placed this offence on the scale below mid-range, but at a point comparable to the assessment I have made in respect of sequences 23, 24 and 25.
Sequence 29
1. While victim 17 was standing in the line, the offender masturbated victim 17's penis for about three or four minutes, after which the offender moved on touching the penis of the other boys there. After going down the line of boys and masturbating and/or sucking their penises, some of the victims were laying down on the bed when the offender asked some of them to touch each other's penis. The offender lay down next to the victims while naked. The offender then masturbated to the point of ejaculation.
2. Sequence 29 I have placed below mid-range of objective seriousness.
Sequence 8 & Sequence 30
1. The facts then deal with sequence 8, producing child pornography, and sequence 30, engaging in sexual activity, both on 15 November 2016.
2. On 15 November 2016, victim 17, victim 19 and victim 20 tried to go to school, however they were not allowed into school due to a haircut policy. About this time, victim 20 saw Donozo outside the school and he invited them to go to a house in Cebu. Donozo brought victim 17, victim 19 and victim 20 to the house where they met the offender. When the victim's entered the house, the offender told them to undress and take a bath.
3. Sequence 8 involved the following misconduct: when the victims were naked in the bath, Donozo entered the bathroom and photographed them. Donozo took 132 photographs of victim 17, victim 19 and victim 20. They were child pornography, including:
A. Victim 17, victim 19 and victim 20 standing naked in a bathtub;
B. Victim 19 and victim 20 sitting naked on a bed in a room.
1. Victim 19 was aged between ten and 14 when the photographs were taken. Victim 20 was 12 years old when the photographs were taken. The 132 photographs were classified. 64 fell within category 1; 65 fell within category 2; three videos fell within category 2, bringing the total to 132 items.
2. Sequence 8, I have assessed the misconduct at below mid-range of objective seriousness.
3. Sequence 30: when the victims entered the room, the offender, who was naked, told them to lie on the bed. While victim 20 was laying on the bed, the offender sat down next to him and began to masturbate victim 20. The offender masturbated him for five minutes. While this was happening, victim 19 and victim 17 were laying on another bed in the room. They could see the offender masturbating victim 20. After the touching, the offender told victim 20 to get dressed so that they could all go to a restaurant for dinner. The offender then took all three victims to dinner and to play arcade games. The offender paid victim 20 a total of 400 pesos, the equivalent of AUD $11 and told him to go home.
4. Sequence 30 is assessed as below mid-range of objective seriousness.
Sequence 9 & Sequence 27 & Sequence 31
1. The facts then deal with sequence 9, producing child pornography on 18 November 2016; sequence 27, engaging in sexual intercourse on the same day; and sequence 31, engaging in sexual activity on the same day. The information regarding victims 21 and 22, and the events leading up to the offences are described below.
Victim 21 & Victim 22
1. Victim 21 was in grade 7 when he met Donozo through his cousin, who had taken business photoshoots with Donozo. Donozo introduced victim 21 to the offender under the pretence of having modelling photos taken at the house.
2. Victim 22 also went to the offender's house and both victims were given dinner.
3. Victim 21 was between ten and 14 years of page when sequence 31 and sequence 9 occurred. Victim 22 was 14 years old when sequence 31 and sequence 9 occurred.
4. On 18 November 2016, victim 22 was invited to the offender's house by Donozo. Two other children, including victim 21, were also invited. When victim 21 and victim 22 arrived at the house, they met the offender. The other young boys at the house included victim 13, victim 14 and victim 15. While they were there, the victims spoke with the offender and saw him taking photographs. After an hour, the group travelled to Tops Lookout in Cebu in a rented 'jeepney', a bus that is used for public transportation.
5. When they arrived at the lookout, the victims and the other boys in the group were photographed by the offender. He took 30 photographs of himself with victim 13, victim 14 and victim 15, victim 21 and victim 22 and other unknown male and female children and other adults. The photographs show the offender and others on the way to and at the lookout.
6. After one hour, they left the lookout and went back to Cebu City. Most of the children were dropped off at a square in Cebu on the return drive. Donozo told victim 21 and victim 22 to stay with him and the offender. The offender and Donozo took victim 21 and victim 22 out to dinner at a restaurant and returned to the house later that evening.
7. When the offender, Donozo, victim 21 and victim 22 returned to the house, Donozo told both victims to go and have a shower and a bath. They went to the bathroom, undressed and got into the shower.
The facts then deal with the offence sequence 31
1. The offender entered the bathroom and began to touch both victims' body parts. The offender got undressed and got into the shower with the victims. Victim 22 stated that he was then romanced by the offender and explained that the offender shampooed his hair, and washed his body. The victim stated that the offender touched all of his body and his back area, and that the offender and both victims were in the shower together for about eight minutes. Afterwards, they all went to room one, which was the offender's room. Victim 22 got dressed and went to room 2, which was Donozo's room. The offender locked the door to room 1 and remained in the room with victim 21.
2. Sequence 31 is below mid-range of objective seriousness.
3. Sequence 27 is next described. In room 1, the offender told victim 21 to lie down on the bed. The offender removed all of his clothes, except for his briefs, and lay down next to victim 21 on the bed. The offender removed the victim's shorts and sucked his penis. The offender performed oral sex on victim 21 whilst crouching over him on the bed. The offender simultaneously, also intermittently, masturbated the victim's penis and talked dirty to him. This continued for about 20 to 30 minutes until the victim ejaculated. The ejaculate landed on his abdomen. The offender told victim 21 to put on his clothes and leave the room, after which victim 22 entered with Donozo. Donozo told both of the victims to play mobile games in the room with the offender. The victims then played mobile games on the offender's phone with the offender located between them.
4. The offender paid victim 21,350 pesos, about AUD $9.50.
5. Sequence 27 I have below mid-range, but closer to mid-range than the lower end of the scale.
6. Sequence 9 is then described: during the period that victim 21 and victim 22 were at the offender's house on 18 November 2016, he took 16 photographs of victim 21 and ten photographs of victim 22.
7. These were child Pornography:
A. Photos depicted victim 21 posing naked; and,
B. Photographs depict victim 22 exposing his penis.
1. These were classified and all were found to fall within category 1. In addition to the payment made to victim 21, the offender paid victim 22,250 pesos, equivalent to AUD $7. Both boys were told to go home.
2. On 22 November 2016, Donozo, again, invited victim 21 and victim 22 to go to the offender's house, but they refused.
3. Sequence 9 is below mid-range of objective seriousness.
Sequence 10; 26 November 2016; Produce child pornography overseas
1. On 26 November 2016, the offender took 76 photographs of victim 8 that were child pornography at a hotel in Manila, the Philippines, including:
A. Victim 8 lying naked on a bed masturbating his penis;
B. Victim 8 standing naked in a hotel room with an erect penis;
C. Victim 8 standing naked on a couch with an erect penis;
D. Victim 8 sitting naked in a chair;
E. Victim 8 standing naked on the balcony of a hotel with an erect penis;
F. Victim 8 standing naked in a hotel room drying his hair with a hair dryer.
1. Victim 8 was between ten and 14 years of age when these photographs were taken. The offender also recorded three videos that were child pornography, showing victim 8 lying on a bed masturbating. These were classified. 69 of the images fell within category 1; seven of them fell within category 2; the three videos fell within category 2, bringing the total of the items to 79.
2. Sequence 10 I have assessed at below mid-range, but closer to mid-range than the low end of the scale of seriousness.
Sequence 17 [4] ; 6 December 2016; Transmission of child pornography
1. On 6 December 2016, the offender transmitted three images to Maliboy Hornbag using Brosix. All three images were child pornography and depicted:
A. Victim 17 standing naked in a bathroom masturbating, classified as category 2;
B. Victim 17 standing naked in a bathroom, classified as category 1; and
C. Victim 17 standing naked in a bathroom, classified as category 1.
1. These offences I have below mid-range of objective seriousness, toward the lower end of the range.
Sequence 18; 3 January 2017; Transmission of child pornography
1. On 6 December 2016, the offender transmitted 15 images to Maliboy Hornbag using Brosix. All of the images were child pornography and depicted:
A. Three Asian male persons aged approximately 12 to 14 years sitting naked on the edge of a bathtub with their genitalia exposed;
B. Victim 17, victim 19, and victim 20, kneeling or lying naked on a bed;
C. Victim 17 lying naked on a bed masturbating while victim 20 sits naked on victim 19, who is also naked;
D. Victim 17 lying naked on a bed masturbating while victim 20 sits naked on victim 19 who is also naked;
E. Victim 14, victim 15, victim 16, victim 17 and victim 18 naked, lying, sitting or kneeling on a bed masturbating;
F. Victim 14, victim 15, victim 16, victim 17, and victim 18 sitting naked on a bed masturbating;
G. Victim 18 sitting naked on a bed masturbating;
H. Victim 10, victim 11 and victim 12 sitting on a bed naked with victim 12 masturbating;
I. Victim 9 lying naked on a bed touching his genitals while victim 8 holds a Samsung Galaxy Note 3 mobile device;
J. Victim 17 sitting naked on a bed touching his genitalia;
K. Victim 19 and victim 20 sitting naked on a bed with victim 20 touching his genitals;
L. Victim 17 sitting naked on a bed while masturbating;
M. Victim 20 lying on a bed masturbating;
N. Victim 17 lying naked on a bed; and,
O. Victim 17 lying naked on a bed.
1. The 15 photographs were classified; five of them within category 1; ten of them within category 2.
2. Sequence 18 is below mid-range, but at a point above where I have placed my assessment of assessment of sequence 16 and 17.
Sequence 11; 8 April 2017; Produce child pornography overseas
1. On 4 April 2017, the offender arrived in Ho Chi Minh City, Vietnam from Sydney, Australia. On 8 April 2017, the offender took 16 photographs of victim 23 that were child pornography at a hotel in Vietnam including:
A. Victim 23 posing naked;
B. Victim 23 standing naked embracing an unknown adult male who is also naked.
1. The offender is also depicted hugging victim 23 in the same hotel room in the other photographs. Victim 23 is wearing clothes in that photograph. Victim 23 was between ten and 14 years old when the photographs were taken. The 16 photographs were classified as within category 1.
2. I have placed this offence below mid-range of objective seriousness.
Sequence 12; 6 July 2017; Produce child pornography overseas
1. On 24 June 2017, the offender arrived in Vietnam having flown from Australia via Singapore. On 6 July 2017, the offender took 19 photographs of victim 23 and victim 24 that were child pornography at a hotel in Vietnam, including:
A. Victim 24 kneeling naked on a bed while looking out a window;
B. Victim 23 standing naked in the living room area of the hotel room;
C. Victim 24 standing naked in the living area of a hotel room;
D. Victim 23 and victim 24 standing naked in the living area of a hotel room with an unknown third person;
E. Victim 24 standing naked in the bathroom of a hotel room and;
F. Victim 23 and victim 24 standing naked in the bathroom of a hotel room.
1. Victims 23 and 24 were between ten and 14 years old when the photographs were taken. The 19 images were classified to all be within category 1.
2. Sequence 12 I place below mid-range of objective seriousness.
Sequence 13; 8 July 2017; Produce child pornography overseas
1. On 8 July 2017, the offender took 111 photographs of victim 23 and victim 24 that were child pornography at an unknown hotel in Vietnam, including:
A. Victim 23 and victim 24 sitting in a bath together;
B. Victim 23 and victim 24 sitting in a bath with the unknown Asian adult male person;
C. Victim 23 and victim 24 sitting in a bath where the unknown Asian adult male person is masturbating victim 23;
D. Laying naked on a bed where victim 24 holds victim 23 around the torso while victim 23 watches a Samsung Galaxy Note 3 mobile device;
E. Lying naked on a bed where victim 24 masturbates victim 23 while victim 23 watches a Samsung Galaxy Note 3 mobile device; and,
F. Laying naked on a bed where victim 23 and victim 24 are holding each other.
1. Victim 23 and victim 24 were between ten and 14 years old when the photographs were taken. The 111 photographs were classified. 98 fell within category 1; Ten fell within category 2; three fell within category 3. This offence falls below mid-range, but toward the mid-range point on objective seriousness.
Sequence 22; 19 December 2017; Produce child pornography overseas
1. On 17 December 2017, the offender arrived in Manila, the Philippines, from Sydney, Australia. On 19 December 2017, the offender took 136 photographs of victim 25, 26 and 27 that were child pornography at a hotel in Manila, including:
A. Victim 25 lying naked on a bed holding his penis while victim 27 sleeps next to him;
B. Victim 25 standing naked on a balcony with an erect penis;
C. Victim 26 standing looking out over the balcony with his underwear around his thighs exposing his buttocks to the camera;
D. Victim 27 standing naked on a balcony holing victim 26's penis while victim 26 stands next to victim 27 with his underwear around his thighs holding victim 27's penis;
E. Victim 27 sitting on a couch naked from the waist down masturbating;
F. Victim 27 lying on a bed masturbating;
G. Victim 26 lying on a bed naked whilst holding his genitals, victim 25 lies next to victim 26 while clothed;
H. Victim 25 and victim 26 lying naked in a bath together;
I. Victim 25 and victim 26 lying next to each other in a bath where victim 25 is masturbating; and,
J. Victim 25 and victim 26 standing next to each other naked in a bath while they hold each other's penises.
1. Victims 25, 26 and 27 were between ten and 14 years old when the photographs were taken. The 136 photographs were classified. 101 fell within category 1; 32 fell within category 2. I have placed this conduct below mid-range of objective seriousness.
Sequence 14; 21 December 2017; Produce child pornography overseas
1. On 21 December 2017, the offender took 35 photographs of victim 28, child pornography, at a hotel in Cebu, the Philippines, including:
A. Victim 28 lying naked on a bed holding his erect penis;
B. Victim 28 lying naked on a bed masturbating himself;
C. Victim 28 kneeling naked and his hands and knees on a bed and;
D. Victim 28 kneeling on a bed naked while masturbating.
1. The victim was between ten and 14 years of age when the photographs were taken. These photographs were classified. 30 fell within category 1, and five fell within category 2.
2. The follow day, the offender travelled to Compostela with Donozo, Junel and Junel's fiancée to meet Junel's relatives. The offender told Junel's relatives that he could support Junel and Junel's son. The next day the four of them returned to Compostela to attend a mass wedding in which Junel and his fiancée were married.
3. The offence in sequence 14 is below mid-range objective seriousness.
Sequence 28; Between 25 & 28 December 2017; Engaging in sexual intercourse with a child outside of Australia
1. Donozo introduced victim 29 to the offender when Donozo took him and two friends to a swimming pool named "Villa Teresita" in Talisay City in Cebu. After meeting the offender and swimming there, victim 29, the offender, Joey and victim 29's two friends, along with 12 other people including women and infants, went to 'Crocolandia', a wildlife and conservation park. The offender also took victim 29 to dinner.
2. Victim 29 met the offender again at Bantayan Island, having been invited there by Donozo. The offender rented three rooms and a bar on the island. After swimming, the offender instructed victim 29 to follow him to one of the rooms. When victim [the facts specify 19, but I understand it should be 29] entered the room, the offender offered him money if he allowed the offender to suck his penis. Victim 29 agreed. The offender removed his shorts and began sucking victim 29's penis on the bed. The offender continued sucking the victim's penis for approximately 20 minutes until he ejaculated. The offender paid victim 29 a total of 500 pesos, equal to AUD $18.50. The victim left the room and walked around.
3. Victim 29 was 12 years old at the time of the offence.
4. In a recorded interview with police, victim 29 said that when the offender was sucking his penis, he felt angry and only agreed because he was offered money.
5. Sequence 28 I have placed below mid-range, but nearer to mid-range than the low end of the range of objective seriousness.
Sequence 19; 3 January 2017 [5] ; Causing child pornography to be transmitted to himself
1. On 3 January 2017, the offender used a program called Brosix, which I earlier discussed, to send the following message to Maliboy Hornbag:
"When do I get to see Amice hard dick?"
1. One minute later, Maliboy Hornbag sent one category 2 image to the offender depicting two males aged between 12 and 14 years of age masturbating. That offence is below mid-range of objective seriousness.
Sequence 1 of series H# 445; 6 October 2018; Import child pornography
1. On 6 October 2018, the offender arrived in Sydney, Australia, from Singapore, and when searched by Australian Border Force officers was found to have a Seagate 500 gigabyte external hard drive containing child pornography material. It was classified. There was one image in category 1; one video in category 2; seven videos in category 2; and four videos in category 4. The total number of products, 13. He was arrested and the officer seized a black ThinkPad laptop at the time of his arrest. I have that offence below mid-range.
Sequence 20 & Sequence 2 of series H# 956; 8 October 2018; Possession of child abuse material
1. On 8 October 2018, AFP officers executed a search warrant at the offender's apartment and seized the following items:
A. Two Toshiba two terabyte hard disks, referred to as "Toshiba 1 and Toshiba 2";
B. A Toshiba 1 terabyte hard disk, referred to as "Toshiba 3";
C. WD My Passport hard disk;
D. A 32 gigabyte SanDisk Extreme SD card;
E. A black Asus laptop, referred to as, "The black laptop";
F. A Black Fujifilm camera;
G. A 64 gigabyte Sony SD card found inside the Fujifilm camera;
H. A blue Panasonic LUMIX camera; and,
I. A blue Asus laptop.
1. The electronic devices were examined and child abuse material was found on several of them.
2. Sequence 2 within the series of H# 956 is in respect of the first Toshiba hard disk. The offender used a consistent naming convention across the devices to organise his files. A screenshot is included of the file structure from partition 7 on the first Toshiba; this appears at p 27 of the agreed statement of facts showing the folder file path captured on that screenshot. It includes an item against the word "pix", which refers to pictures. There is the word "vid", which refers to videos. On partition 7 of that hard drive, there was the file path, "Folder: \00D\Pix/000PHILS". The portion of that file path, 000PHILS, refers to the Philippines. 43,988 images were in the folder, 000PHILS, on partition 7 of this hard drive.
3. The Australian Federal Police examined 2,502 files from that folder which represented 5.69% of the images in that folder. Based on the sample of images, there were 21,423 images that were child abuse material stored in the folder, 000PHILS, on the Toshiba 1 disk. Based on the classification of the sample images, according to the 'Child Exploitation Tracking System', the child abuse material in the folder was classified as follows: there were 19,437 within category 1; 1,582 within category 2; 53 within category 3; 70 within category 4; and 281 within category 5.
4. Within the folder \000D\Pix/000PHILS, there was a subfolder called, "Alex/Strip & Bound", that contained 81 images that were classified. 78 fell within category 1, and three fell within category 5. The images contained in this folder depicted the same victim aged between ten and 14. These images were possessed by the offender on another device as early as 14 September 2008. These files were transferred on to partition 7 of the Toshiba 1 disk on 18 August 2017.
5. Also on partition 7 on the Toshiba 1 disk, there was the following file path: "Folder: \000D\pix/0 A". There were 103,007 images in that folder. The Australian Federal Police examined 2,306 files from that folder, which represents 2.24% of images in that folder. Based on the sample of images, there were 61,830 images of child abuse material stored in the folder, 000PHILS, on the Toshiba 1 disk. Based on the classification of the sample images, according to the Child Exploitation Tracking System scale, the child abuse material in that folder was approximately 46,696 images in category 1; 6,563 images in category 2; 4,732 images in category 3; 3,839 images in category; and there were none in category 5. [6]
6. The Crown corrected further typing errors in the Agreed Statement of Facts which I have reflected in the judgement upon review for the purposes of publication as noted above.
7. I noted that my reference to para 119 in the Agreed Statement of Facts, dealing with what I had read to be sequence 17 and sequence 16, transmit child pornography, the reference to sequence 16 should be excised; it was already traversed when dealing with paragraph 28 of the Agreed Statement of Facts.
8. I noted that the aggregate sentence for the New South Wales offences would be commenced first, with some concurrence and accumulation with the aggregate sentence for the Commonwealth offences.
9. I also commented upon the structure of the two offences, sequence 2 in series H# 956, and sequence 20 respectively.
10. Returning to the agreed statement of facts at paragraph 173, continuing to deal, with sequence 2 of series: H# 956.
11. Within the folder, \OOD\pix\0A, there was a subfolder, "\000InsI\IBWM\Indian boy and white man". The folder contained 36 images of child abuse material classified as follows: there were 16 category 1 images; four category 2 images; five category 3 images; and 11 category 4 images, bringing the total to 36 images. The images in this folder depicted a victim between the ages of ten and 14. The images were possessed by the offender on another device as early as 14 September 2008, and these were transferred onto partition 7 of the Toshiba 1 disk on 18 August 2017.
12. On partition 1 of Toshiba 1 disk, there was the following file path: ">Pix>000PHILS>000 MNL> ---- >quiap>Arnoz". "000MNL" refers to Manila. The file "Arnoz" contained 12 image files which depict an Asian male child between eight to 12 years of page. The folder contained one image file of the Asian male child standing in a room wearing only blue underpants. This folder also contained 11 images of child abuse material depicting the same Asian male child naked in various poses on or around the bed, including:
A. Kneeling on a bed, with the image taken focusing on the buttocks and the anus of the male child;
B. Lying on the bed on his back with his legs spread exposing his genitals; and,
C. Lying on the bed on his back with his legs spread with the male child touching his anus with his hand.
1. These images were categorised. Ten of them fell within category one and two fell within category two. The child abuse material was possessed by the offender on another device as early as 2 August 2013. These files were transferred onto partition 1 of the Toshiba 1 disk on 18 August 2017.
2. Sequence 20, relates to the black laptop. On that there was a file path on partition 4, folder:" \Users\User/Pictures\000Shota". In the Agreed Statement of Facts there is set out two screenshots of the file structure with the number of images in each folder in parenthesis. The representation "000Shota" refers to "shots". The file path, or folder path, as it might be called, begins with a folder of pictures; then within that folder, the identifier 000Shota. The pictures in total are 48,371. Within this folder, referring to "shots", there are 34,971, and then within that folder there are a series of other folders specifying names. There are 24 folders within the nominated "000Shota".
3. The AFP examined 2,234 files from the folder representing 48% of the images in that folder. Based on the sample of images, there were 18,595 images that were child abuse material stored in the folder "000Shota" on the black laptop. Based on the classification of the sample images, according to the Child Exploitation Tracking System scale, the child abuse material within the folder was approximately as follows: there were 17,068 in category one; 800 in category 2; 31 in category 3; no category 4; and 694 in category 5, bringing the total to 8,595.
4. I pause to interpolate here, that the methodology that is employed is to calculate a prediction of the array of child abuse material that will be found on the device by drawing upon the sample adopting the assumption that the same proportions will be replicated in the balance of the material.
5. Within the folder of "000Shota", there was a subfolder called, "000Shota\00 Old\Mark\Censored - Bondage". That folder contained 121 images of child abuse material, with classifications made. There were three category one; no category 2, 3 or 4, but 119 of category 5.
6. The images contained in this folder depicted the same victim who was between eight and 12 years of age. These images were possessed by the offender on another device as early as 22 May 2008. These files were transferred onto the black laptop on 14 January 2017.
7. The following file path was also found on the black laptop: ": Partition 4>Users>User>Pictures>000 Shota> 000best>Marcel". The folder labelled "Marcel" contained 49 images, files which depict an Asian male child between eight and ten years of age. The folder contained one image file of the Asian male child lying down, wearing only a pair of blue underwear.
8. The folder also contained 48 image files depicting the same Asian male child naked in various poses including:
A. Lying on his back with his legs spread, where the image focuses on the male child's genitals;
B. Standing with the male child's back to the camera, where the male child looks back toward the camera and uses his hands to spread his buttocks thereby exposing his anus; and,
C. The male child standing, bent over where the male child looks back through his legs toward the camera where the image shows the male child's face and also buttocks and genitals.
1. These images were classified. There were 48 category 1 images, there were no images that fell within the remaining four categories. These images were possessed by the offender on another device as early as 24 April 2014, and these files were transferred onto partition 4 of the black laptop on 14 January 2017.
2. The facts then deal with sequence 2 of the series H# 956 and the Toshiba 2 disk. The following child abuse material was located on this: there were 1,476 category one images, and 57 category 1 videos; 72 category 2 images, and 290 category 2 videos; 28 category 3 images, and 42 category 3 videos; 79 category 4 images, 202 category 4 videos; and four category 5 videos. Thus, the total number of images 1,655, the total number of videos 595, the overall total items 2,250.
3. Accordingly, the total number of items charged in respect of sequence 20 was 18,595, and they were one laptop. They were organised methodically. Some of these were co-existent on another device since May 2008, and then transferred to the particular device, and involved categories 1, 2, 3 and 5, and the material, the subject of the charge H# 956, sequence 2, was in respect of 85,580 items of child abuse material on the two Toshiba disks assessed on the sample viewed. They were organised methodically, some in possession since 14 September 2008, all of mixed category.
4. The conduct upon which sequence 20 was brought was charge contrary to s 91H(2) Crimes Act 1900. That falls, upon my assessment, about mid-range.
5. The conduct, the subject of charge H# 956, sequence 2, is above mid-range.
Assessment of the Seriousness of the Offences
1. I would observe at this point that where I have identified the range, or where the misconduct should be placed on the range of objective seriousness, or the scale of objective seriousness, it does not follow that there is some arithmetical calculation to be applied against the maximum penalty specified for the particular offences, but it is one of the factors one brings to account in the assessment of what is the appropriate sentence upon the synthesis of objective and subjective material that is provided to the Court, to which I have already referred.
2. When assessing the objective seriousness of misconduct, guidance is provided in the judgement of Johnson J in Tepania v R [2018] NSWCCA 247.
3. Before I turn to his Honour's guidance, I will note that on the occasions I have been called upon to sentence offenders in possession of child pornography or child abuse material, they were part of the market serviced by the base individuals who exploit children in other lands in the manner adopted by the offender in this case, not only possessed of such images, but who also travelled to other lands; namely, Vietnam and the Philippines, to exploit children in limited economic circumstances, to whom he gave modest rewards for their participation. He is one of the base individuals who created these abhorrent products for his sexual pleasure at the expense of these children, made vulnerable by their economic circumstances in their homeland.
4. I was invited to a decision of the Court of Criminal Appeal, R v Porte [2015] NSWCCA 174. Crown appeals were allowed in respect of sentences imposed for offences of accessing child pornography material contrary to s 474.19(1)(a)(i) Criminal Code 1995 (Cth), and s 91H(2) Crimes Act 1900. The sentences imposed by the judge at first instance were found to be inadequate and were replaced. I do not intend to rehearse the facts that the Court there had considered, but shall turn to the section of the judgement and delivered by Beech-Jones J, with whom Leeming JA and Johnson J agreed. The relevant portion appears at para [59] dealing with the sentencing principles for child pornography offences. Beech-Jones noted:
"...as maximum penalties for these offences have been increased, the courts have made clear that the ready availability of material of this type has warranted substantial penalties with general deterrence and denunciation being paramount considerations."
1. His Honour referred to a decision of Minehan v R [2010] NSWCCA 140, which was concerned with Commonwealth and State offences, including dissemination and grooming charges, as well as access and possession offences. RA Hulme J, with whom Macfarlan JA and Beech-Jones J agreed, said at para [94]:
"Drawing primarily from the authorities to which I have referred, the following matters may be relevant to an assessment of the objective seriousness of offences involving the possession or dissemination/transmission of child pornography:
1. Whether actual children were used in the creation of the material.
2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.
3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.
4. The number of images or items of material – in a case of possession, the significance lying more in the number of different children depicted.
5. In a case of possession, the offender's purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383.
6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.
7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.
8. The proximity of the offender's activities to those responsible for bringing the material into existence.
9. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.
10. Whether the offender acted alone or in a collaborative network of like-minded persons.
11. Any risk of the material being seen or acquired by vulnerable persons, particularly children.
12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.
13. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence.
95. This list of factors is, of course, not closed. Individual cases may always produce further matters relevant to the assessment of their objective seriousness."
1. In this instance, the conduct upon which this offender engaged, including possession of child abuse material and his creation of it, actual children were used. I have noted the nature and content of the material, including the age of the children, and the gravity of the sexual activity portrayed and in which the offender participated. I note that the sexual activity, as abhorrent as it is, did not extend to the offender engaging in penetrative conduct upon the children. His misconduct involved him engaged on acts of fellatio with them. There is no evidence of cruelty or physical harm. I have noted the number of images created and possessed. The purpose for which he had the material was, in my judgement, clearly for sexual gratification and for sharing, evident in the conversations to which I have referred so far in my summary of the facts.
2. There is, it appears, a limited array of individuals to whom this material might have been disseminated. He did not, it appears, receive, on the material before me, monetary reward, although there would appear to have been one occasion, at least evidenced in the communications between the offender and the other person, of transmission of material to him from that person. The proximity of the offender's activities could not be closer. He was responsible for bringing material into existence. There was planning, organisation and sophistication employed by the offender, including the acquisition and storage of the product, and also in the arrangements made to have these children in places to be exploited with the risk of detection mitigated by the selection of appropriate premises. He did not act alone, as is clear from the agreed statement of facts. There was a network, but of limited extent, when one considers those that were engaged with the offender in the arrangements for his conduct in Vietnam and the Philippines.
3. The task before me includes the need to assess where upon the spectrum of offending and misconduct each of the charges brought is to be placed, and I have expressed a view as I have proceeded through each of the descriptions of the offending conduct. The range of the conduct involving child abuse material and its creation, and the exploitation of children, can extend from much less serious behaviour than that which is before me to far more egregious examples of such behaviour. Doing the best I can, I have identified where I believe these offences should be placed on the scale.
4. I do not overlook that minds will differ in this exercise. The task is challenging. It is always a matter of judgement, upon which minds will very often differ as I have said.
5. The guidance, to which I referred, provided by Johnson J in Tepania v R [2018] NSWCCA 247 is set forth at para [112] and following:
"In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]- [172] (Callinan J).
113. The term 'moral culpability' has been used (in a somewhat flexible way) as part of the general law of sentencing. The term may be found in several decisions of the High Court."
1. His Honour thereafter referred to Veen v The Queen (No. 2) (1988) HCA 14, and the observation that, "...a mental abnormality may diminish moral culpability and an antecedent criminal history may illuminate moral culpability." His Honour referred to Muldrock v The Queen [2011] HCA 39, where it was observed, "...limited moral culpability may mean that retribution and denunciation did not require significant emphasis", and Bugmy v The Queen [2013] HCA 37 where it was made clear by the High Court of Australia that childhood deprivation with profound effects will continue to impact upon an offender, regardless of the passage of time, and must always be brought to account, notwithstanding episodes of repeat offending. His Honour continued:
"117 In Filippou v The Queen [2015] HCA 29, [the majority wrote]:
Certainly, a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability.
118. In Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, McClellan CJ at CL (at 43 [177]) observed that, where a person's mental health contributed to the commission of an offence in a material way, the person's moral culpability may be reduced."
1. The offender's moral culpability is one of the many factors which bear upon a sentence sometimes pulling in different directions.
2. I refer to these authorities at this point, because I now turn to the offender's case, which in the initial stages relied heavily upon an assessment by Dr Olav Nielssen.
The Offender
1. The offender was born in 1957, and will this year turn 64 years of age. He has no antecedent criminal record. According to the sentence assessment report, he has no dependents, and is not in a relationship. He has a foster son in Vietnam, to whom I referred from the agreed statement of facts. He has no residential arrangements to plan for when he is released. His sister has indicated that he may live with her in Launceston, Tasmania. His mother resided in a nursing home, but in evidence, he informed the Court that she has since died. He spoke Vietnamese fluently. He has had a life of accomplishments, but it is beyond doubt that he is a flawed individual who took his pleasure to the disadvantage of each of the victims of the crimes for which he is to be punished.
2. He originally worked as a lawyer after studying at the University of Melbourne. He did articles of clerkship in Melbourne, and then came to Sydney for up to two years. He returned to Melbourne and worked in a firm there until the end of 1988. He turned to the priesthood. Acceptance into the seminary was in 1989. He worked as a catholic priest from August 1996 until the start of 2011.
3. His academic qualifications were achieved from 1978 when he graduated in law from the University of Melbourne, and in approximately 1992 he graduated in theology from the Melbourne College of Divinity, and in 1993 and 1994 converted that into an honours degree. In 2000 he graduated with a Master of Arts degree at Monash, specialising in ancient history, and later obtained a PhD from the Melbourne College of Divinity specialising in ancient history, and particularly the history of the church in Vietnam.
4. In 2017, he obtained what was called a Cambridge English Language Teaching Accreditation. His evidence included the following representations regarding his work overseas:
"In 1991 through to 1992, I worked in Hong Kong as a volunteer in the Vietnamese detention centres with a time in that period there was also a period of about six or seven months in which I worked in Palawan in the Philippines, again in a Vietnamese detention centre. I then continued that on in 1982 through to early 1993. In 2003 to 2004, I was a visiting research fellow at the National Academy - sorry, the Religious Research Institute of the National Academy for social sciences and humanities in Vietnam. And finally for about - well, from June to early October 2018, I worked as a university lecturer at the eastern international university in Vietnam, a place called Binh Duong, which is about, I don't know, 50 or 60 kilometres outside of Ho Chi Minh City."
1. The offender relied upon two reports from psychiatrist Dr Olav Nielssen. These were provided on 8 February 2020 and 4 February 2021. Dr Nielssen was required for cross-examination on 23 February 2021, the result of which is that the opinion originally offered in support of the offender must be significantly qualified. The following matters found in the reports of Dr Nielssen's evidence are of note:
1. Dr Nielssen saw the offender on two occasions, once for each report. Both were by way of AVL, with the attendant compromise to the opportunity to make a reliable assessment of the offender and the subject matter of his representations. The first occasion on 28 February 2020 was for about an hour, and the second on 3 February 2021 for half an hour to three-quarters of an hour.
2. On the first occasion, the offender disclosed only part of his misconduct: transcript 23 February 2021 at p 2. In the first report of 8 February 2020 on p 2, the middle paragraph, the offender said his involvement was purely voyeuristic, and did not involve actual sexual conduct with children, despite having opportunity for sexual contact. That was clearly untrue. Dr Nielssen acknowledged that the offender positively asserted that he had not contacted or had sex with children in response to the question he posed. In his second report, this passage was modified to, "...initially voyeuristic" and the words "...and to sexual contact" were removed. By the time of the second report, the doctor was aware of further misconduct with which the offender was charged, including, it would appear, contact offences.
3. The assessment of risk was thus compromised as a matter of common sense, to use the phrase offered by Dr Nielssen at p 3 of the transcript of his evidence on 23 February 2021 but without impact upon probabilities, bearing in mind that the Static-99R instrument is used upon consideration of such as voyeuristic offences rather than contact offences of which he was not aware at the time of the first assessment.
4. Dr Nielssen drew a distinction between recidivist offending after interdiction by law enforcement and offending that continued over time without intervention by law enforcement. The former would raise greater concern than the latter. This view is held, notwithstanding that the offender had taken the opportunity for assistance from psychiatrist Dr Christopher Canaris with the work of whom Dr Nielssen was familiar, but who also had limited information, according to Dr Nielssen's understanding, and as acknowledged by the offender in his evidence.
5. Dr Nielssen understood that the offender consulted Dr Canaris on 2010/2011, after having resorted to pornography, the nature of which Dr Nielssen did not ask about because of oversight, but assumed that it was pornography of a type that caused him arousal and was of homosexual orientation. Dr Nielssen acknowledged that when assessing the efficacy of therapy, it would have been relevant to know the type of pornography.
6. It was also highly relevant to know that the contact offences occurred after the therapy provided by Dr Canaris when assessing dynamic risk factors to ascertain whether prior clinical treatment has been successful.
7. Dr Nielssen attributed to the offender harshness by his mother during his formative years, impacting upon his capacity to form normal relationship, and that after he left the priesthood he was in a de facto relationship for several years. Dr Nielssen assumed it was a matter of finding the right person.
8. Dr Nielssen attributed him with confusion about his sexual orientation in trying to explain his offending, even though by April 2014 it appeared that there was no confusion about his sexuality. Dr Nielssen alluded to the confusion with reference to challenges for gay people in the past, and his perception that it was a motive for many to enter the priesthood, that they generally did so because they found that interest unacceptable, which was not necessarily the case in the instance of the offender's decisions regarding his offending. When pressed upon the offender's representation that his harsh upbringing limited his capacity to form normal relationship, and that confusion about his sexual orientation were explanations for his offending, and not for joining the priesthood, Dr Nielssen referred to the chain of events that led to offending, involving the deviant sexual interest in under age boys, and ultimately to contact offences involved under age boys. Although this was not stated in his reports, in evidence Dr Nielssen expressed the opinion that in these representations the offender was offering an account of how he came to be the person he is. Dr Nielssen acknowledged that it was relevant to dynamic risk factors that the offender was willing to provide pornography to others randomly on the Internet, as a further activity over and above a private collection.
9. The offender said to Dr Nielssen that the images were linked to his hoarding behaviour, but when taken to the creation of pornography, he acknowledged this to be a new level of excitement, to take images of children with whom he personally had involvement. This added to the dynamic risk factors, increasing the risk of re-offending.
10. Dr Nielssen was not aware of how the images on the electronic devices were filed and catalogued. When provided with information, he opined that this provided a window into his mind, adding that one does not collect such material that does not excite, that this information confirmed a diagnosis of homosexual paedophilic interest, and that kind of fixated interest would obviously increase the probability of pursuing that interest again.
11. 1He certainly considered this in his clinical assessment, although he had not been made aware of the information before this. He said further that the cataloguing showed how specific the offender's interest was, but as to terms of probability estimates, it does not make any difference.
12. Dr Nielssen did not know that the contact offences were in relation to boys over four different year periods, involving numerous children unknown to each other. Specifically, he knew that in November 2016 a group of boys were sexually abused at one time, but did not know that there were other children in 2014, others in 2015, others in 2016 and others in 2017, who were not connected with the first group of boys. He conceded that he had not read with sufficient attention the statement of facts where that information was provided.
13. Dr Nielssen was also unaware that the offending occurred in two different countries, the Philippines and Vietnam, or that within the Philippines it occurred in two cities, Manila and Cebu. He acknowledged that the contact offences were far more serious than addressed in his report, certainly more enduring and repeated.
14. Dr Nielssen did not overlook that there were incidents over several different year periods or that the offender lined the boys up and performed fellatio.
15. Dr Nielssen said that the offender had not tried to justify his behaviour based on the age of consent in the Philippines, and that he acknowledged that he was bound by Australian law.
16. He was not aware of the offences in Vietnam. He was unaware that the offender adopted in Vietnam.
17. Dr Nielssen accepted that it might be the careless way the interviews are conducted, and it might be his fault for not properly examining the documents that were available or making proper records and inquiries.
18. The omission of information regarding the adoption was not significant for assessment of a person's psychiatric condition, how stable they are, how regularly they have been employed, what their relationships were like or their social performance overall, or relevant to a psychiatric history.
19. Dr Nielssen was taken to where a report provided the following attribution to the offender:
"I now link the sexual fantasies to trauma, my worst image is being hauled through the arrival area of Sydney Airport in handcuffs with crowds of people staring at me."
1. Of this, Dr Nielssen said the offender was saying the images, with which he had at that time been charged, no longer caused him arousal because he was so embarrassed and ashamed and humiliated by this appearance in the airport, rather than whether possession of the material was morally justified or how the victims must have felt.
1. Dr Nielssen did not ask him to express whether he had any remorse, or contrition or understanding of the trauma suffered by the children. This was for him to express, but there was no spontaneous statement made to this effect.
2. Dr Nielssen would not diagnose the offender as a hoarder under DSM-5 without more information.
3. The opinion offered in the first report was modified in the second report in the third paragraph: in the first report he said, "Mr Hansen also probably has a disorder of abnormal sexual interest, paraphilia, homosexual paedophilia, largely on the basis of the reported content of Mr Hansen's collection." In the second report, "largely" was deleted and he added, "...and his reported behaviour of masturbating and performing fellatio on a group of boys aged between 11 and 14."
4. Comment was made upon the extent to which he copied and pasted the content of the first report into the second report, in response to which he said that it must be borne in mind that sexual offenders as a group have a low rate of re-offending upon the whole, and that no rational person would go through all of this again.
5. He observed once more that the offender is not a recidivist offender but a current offender.
6. He criticised the value in assessing risk adopting only the Static-99, which was widely used, but had some scope for giving a fairly reliable measure of probability. Questions arose as to which of the versions of this instrument was used by Dr Nielssen in his assessment.
7. When pressed upon the fact that the risk assessment in the second report remained the same, notwithstanding that ultimately in addition to pornography charges it was shown that the offender had committed numerous contact offences, and there were numerous children over numerous years in different countries, he responded:
"Well, look, there's a risk because we have identified an enduring, deviant sexual interest. The probability of re-offending after - of going through all this again is for any rational person, you'd hope, would be the same, which would be low."
1. It appears Dr Nielssen attributes a rational approach to the offender whereby he would not want to expose himself to the risk of facing consequences from such behaviour in the future, resting upon the difference between a recidivist and a current offender, which as I understand it, refers to an offender interdicted by law enforcement to thereafter re-offend, other than an offender who continues on without having been disrupted. The intervention provided by Dr Canaris, who also did not have a complete picture in 2010 and 2011 does not, it appears, serve to divide the offending to before and after conduct to which the term "recidivist" might apply.
1. Dr Nielssen did not know what care was provided by Dr Canaris to the offender, but understood generally the services Dr Canaris provided.
2. Dr Nielssen was unaware of the letter the offender wrote to the Court.
3. Dr Nielssen opined in his report that there was not present a disorder associated with impulse control. He did not diagnose a compulsive addiction or a hoarding disorder.
4. I sought clarification upon the offender's representations regarding his appearance at Sydney Airport in the following exchange:
"Q. In page 3 in the last paragraph, this was with regard to the questions you were asked about trauma, you've quoted the offender saying, 'I now link it', and that's identified as his sexual fantasy, 'to trauma'. Then there are three full stops, and then you continue, 'My worst image is being hauled through the arrivals area of Sydney Airport.' As I understood your evidence, which is consequent or subsequent traumatic experiences he had after his arrest and brought through the public area of the airport But that first part of it, 'I now link it', his sexual fantasies, 'to trauma'. That must be a different trauma to which there is a reference - to which there's reference in the second part of that question?
A. Well, what he was in, he was - perhaps I've put it too briefly, but to the trauma of his situation, that to think about those images makes him realise what position he's in as far as - that's how I interpreted it.
Q. But, again, you're talking about the trauma he experienced as he came through the airport and the shame attaching to the prosecution, I suppose - the arrest and prosecution?
A. Yes.
Q. But that's not trauma that might arise from his past that he was relating his sexual fantasies to?
A. Correct, yeah."
1. And shortly after:
"Q. Just at the second full paragraph on page 3, he's attributed with the following quote, 'Obviously it was wrong, whatever their ages. Certainly it was my sexual interest, but it was more a matter of comfort than excitement. It was not as though I could get any orgasmic relief from doing or looking at the pornography.' Was there any clarification of what he meant by the term 'matter of comfort' and how that might relate back to his strict upbringing to which he earlier referred?
A. I'm not sure, your Honour. He - I should have perhaps explored it further, but he was referring to his loss of sexual function since his prostate operation, which, again, not - doesn't necessarily, you know, end sexual interest but it can, and, you know, capacity for amounting a sexual response."
1. I think that was typed incorrectly in the transcription. It should be, "mounting a sexual response".
1. There followed questions from the Crown regarding loss of sexual function and retrograde ejaculation and prostatic surgery that the offender was given with the suggestion advanced by the offender that he was incapable of achieving erection and could not ejaculate. This was inconsistent with the agreed statement of facts, which in turn gave rise to evidence from the offender regarding his legal representatives, which I find was, at least, incorrect.
2. With regard to the inconsistency between loss of sexual function and the description of the misconduct and the contact offences, which included in the agreed statement of facts that the offender had erection and achieved ejaculation, and after being taken through the description of the offences in which it was agreed that this occurred, Dr Nielssen replied:
"A. Yeah, well, it's a miracle. I mean, I know they have statues of the virgin and the crying - so maybe it's that sort of miracle, I don't know and I can't explain it.
Q. Could it simply be that Mr Hansen has lied to you about his erectile dysfunction?
A. Yeah, possibly. Or lied to me about his operation. I mean, you know, I didn't see any medical documents about the operation."
1. Re-examination included the following exchanged:
"Q. To masturbate means to manipulate, doesn't it?
A. Yes, so it's self-manipulation, yeah. Well, I think that's a fair definition.
Q. To masturbate a penis, the penis does not have to be erect does it?
A. No, well, the idea is to get an erection.
Q. And is it possible to ejaculate through a non-erect penis?
A. No, I don't think so. But, again, you might have to consult a urologist, there might be exceptions but typically, no.
Q. Typically, no, but you'd need to speak to a consulting urologist. Is that what he said?
A. No, to see if there are exceptions. I would have thought, no, I would have thought the correct answer to that question was no."
1. Notwithstanding the standing that Dr Nielssen enjoys professionally, and the extent to which he has over the years assisted the courts with the assessment of offenders and the provision of reports, in this instance I am not persuaded of the opinions reached upon the representations by the offender, and in light of the evidence that came from the offender thereafter. Dr Nielssen did not have a full and complete understanding of the extent of the offences upon which sentence is to be determines, having not read with sufficient care the agreed statement of facts. Moreover, the time available to Dr Nielssen to assess the offender by AVL on two occasion, who upon his presentation in court is clearly an articulate and intelligent man with commendable academic achievements throughout his life, with a strong, if not forceful, personality, there was, in my opinion, insufficient consideration given to the reliability of representations attributed to the offender.
2. No questions were put to Dr Nielssen regarding the offender's demeanour in the course of the assessments, but it would challenge belief that he would not have presented in a comparable fashion to his appearance in court by AVL. I accept the evidence given by Dr Nielssen toward the end of his cross-examination that his role was to garner the information from the offender for the reports for the assistance of the Court, and I accept that it is not his role to cross-examine and test the representations to the extent one might do so in the adversarial context of the courtroom, but the omissions of information by the offender to which Dr Nielssen was taken, the absence of inquiry by Dr Nielssen to amplify or qualify aspects of the matters he accepted from the offender, which in my view ought to have prompted some further inquiry, limit the weight to be attached to the ultimate view offered that there is little, if any, risk of re-offence.
3. The offender gave evidence. He was not overwhelmed by the experience. He spoke with confidence, with clarity, and on more than one occasion refocused the question that was posed to him in the course of cross-examination, upon which the Crown commented a number of times and upon which I observed.
4. Important aspects of his evidence were that he came from a middle class family background. He has one sister who is four years younger. As he was growing up in the family household, he would not describe his life as happy. I refer to the following evidence:
"A. It was a place where there was a lot of anger and a lot of - almost a dichotomy in the way I was treated as between my mother and my father in terms of assertiveness and aggression. I should - it wasn't a question of physical violence, but it was more of being always in a state of anxiety, not knowing what I had to do to please people, things like that."
1. Another answer:
"A. ...within the family circle, my mother, who was a very assertive, and yet herself a neurotic person. But also school experiences exacerbated that sense too.
Q. How so?
A. Well, I was bullied at school. I was quite a - obviously having been able to get into law, a good academic achievement, but in the society of youngsters, that wasn't necessarily advantageous. I was physically weak. I had no motor coordination skills, and I was - I think Dr Nielssen described it as having a social phobia, and I think that's spot on."
1. As he grew to adulthood, he questioned his sexuality. It was almost as if in pubescent age, when all boys take an interest in each other, the others grew out of it; he did not. He was then 13 or 14. As he matured, he noticed abnormal sexual proclivities in that although he could enjoy social and sometimes very friendly relationships with women, he was not able to sexually consummate them.
2. He moved from the law to the priesthood. His evidence included the following answer:
"A. There's a number of reasons. When Dr Nielssen - I listened obviously to Dr Nielssen's evidence, and when he said, or words to the effect of it, became a way to hide or to deal with my sexuality, he is right. But it would be wrong to say that that was the entirety of my reasoning. I always had a - I think I can take this back to my childhood growing up in a poor, working class suburb, of a middle-class family, that I had a strong sense of social justice and injustice and I looked at the gospels and I saw in them a real pattern as to how justice could be obtained in the world and that fired me. The thought that I might be able to work for justice within the context of priesthood and fulfil a spiritual life in the priesthood runs alongside the more aberrant things that Dr Nielssen described."
1. He is proficient in Vietnamese, he said. Regarding his arrest at Sydney Airport and what Dr Nielssen attributed to him, he gave the following evidence:
"Q. What was the trauma there you were referring to?
A. The trauma arising as a subconscious response to the subconscious again rising of sexualised images in my mind was that it almost flipped over from a sexualised image was eclipsed by the image of my being taken in handcuffs through the busy concourse in the middle of a Saturday morning of Sydney Airport to a police van with my hands in handcuffs, a police or a law enforcement officer on either side of me, people gawking at me. It wasn't the most shameful moment in my life. My most shameful moments came in my offending. But it was the moment when I felt most ashamed in my life. Sorry, I was going to say that's what arises from my subconscious, sexual images that I think flash into every male's mind. When I'm sitting down consciously recalling everything that's happened to me, when I think as a matter of will, my thoughts very much go to my victims and my thoughts when I think of my victims are always of a sick feeling of, 'My God, what have I done?' "
1. He gave the following evidence regarding his offending:
"Q. Do you regard those as criminal activities?
A. Unquestionably. Again I heard Mr Radojev the evidence given by Dr Nielssen this morning about the question of the age of consent. He's right when he said - he raised that with me. I was frankly very surprised when he did so. I never doubted the criminality of my action, and I understand that that exacerbates my culpability.
Q. Mr Hansen, having accepted the fact that you are a, for all intents and purposes, a criminal involved in criminal activities against children, how do you feel personally about that as we sit here today?
A. I feel both ashamed and guilty, and I distinguish between those two things. I'm ashamed because I contravened the law, because I contravened society's expectations of me, and I am faced with those expectations both inside, and I dare say outside of gaol all the time. But I also feel guilt, and frankly the guilt weighs heavier on me than the shame does, and I distinguish the two because the guilt is where I contravene not external standards of morality, but my own standers of morality. You know, I think the record of my life says that I do work for people who are in difficult circumstances, and yet here with these victims, these boys, I exploited them. I didn't only exploit their age, I also exploited the fact that they came from a poor Asian country, but I exploited their vulnerability and their age. And in doing that, I not only contravened society's standards, I think I also used and manipulated to my own advantage a power imbalance between me and them, as I guess is always going to be the case in offences of this sort. And I look at and I think so much of what I've done for the better in my life I have negated by falling foul of my compulsion.
Q. How do you view your prospects of - upon release from gaol - re-offending in this nature or any nature?
A. I'm absolutely convinced that I won't. From the first time I saw the two Federal officers on 8 October, I said at least to one of them - maybe both of them, but certainly at least to one of them, words to the effect of, 'I don't ever want to go down this path again.' And if I might say, I said the same to you, Mr Radojev, on 7 October, the day before the first time I ever met you. I was just going to - I wanted to go back to that thing of expressing my apology and my remorse to the boys, and to say that they were exactly the sort of people who in another circumstance, had I not allowed my compulsion to overcome me, I would have helped rather than hurt. But I'm also conscious there's a lot of other people I've hurt.
In my letter I apologised to the Court, and I do so again, but I also want to apologise to my family, and, in particular, to my sister, and I want to acknowledge that I've caused her a lot of hurt and distress. I want to apologise to my friends whose trust I betrayed. And I want to apologise to my profession that because I returned to the practice of law and to standards I failed to meet. So I wanted to get them all on the record of me being on oath, of making those apologies. I'm sorry, Mr Radojev, could you repeat your question, please?
Q. I'm just inquiring as to what you regard as your prospects of ever offending in this nature again?
A. Well, firstly I say again that I'm very confident that I will never - may I give a few reasons as to why I say that?
Q. Please, sir.
A. Well, firstly I've now been in gaol for two and a half years, and it is what the argot of gaol would call 'hard gaol'. The first year was okay, but since then I was reclassified, as a consequence of new offences in October - new charges, I'm sorry, in October 19th, and since that time I've been held in maximum security. I was held firstly in Long Bay in what's called a Metropolitan Special Programs area, number 1, and now, since 31 January, in Goulburn. I think the inmate population tells me that these would be regarded as the two hardest facilities.
But I have suffered hardship whilst here, but I think I've also learned a lot from that hardship. I suffered the hardship of my mother dying, not being able to be there for her. She died in Victoria at the height of the COVID crisis, although not of COVID, and I'm happy to say, on the other hand, that I wrote to her and apologised, and she wrote to me and apologised, and we were both totally reconciled before her death, and we would speak every second day. I've also had the hardship of being threatened with physical violence, most recently on 1 February. Fortunately, I complained and was put into another yard, but I was given very substantial threats of violence, and that was the third time this has happened to me. I've been in 19th century physical conditions. But at the same time I've learnt an awful lot, and the most important thing has been that this has been a circuit-breaker for me. I used to rationalise to myself about pornography, that I couldn't get myself away from it. And so I sort of put the wrongness of it aside.
But these two and a half years, where for obvious reasons I've had no access to any form of external sexual stimulation, I've learnt for myself that I'm more self-reliant than I actually took myself to be. And the levels of anxiety, and I think this will sound counterintuitive, but my levels of anxiety actually dropped in gaol. I think part of it is because I'm no longer doing about which I have to feel furtive or secretive or ashamed. I've also had the opportunity to do a program here that has helped me a lot, I've provided my solicitor with a certificate the other day. It's a program run by corrections called, 'Remand Addiction', but it's not a program that's based on substance addiction, it's all about what's there in your psychology that leads you to compulsive behaviour, and how to get out of the cycle of it and keep out of the cycle of it. Unfortunately that program was interrupted a lot by COVID, and there were months at a time when sessions didn't happen, but apart from that and apart from two occasions where I had to have AVL, that to be in an audio visual link, I went to every session that was available to me.
And I think it's going to stand me in good stead, and the chance I've had to think about the wrongness of what I did and the harm that I potentially caused, and yet at the same time to foster a sense of genuine self-belief is all going to stand me in good stead, because as it has led to me planned for what my post-release life will be like. I've done things like being able to work in here. I've kept a good gaol record, I've done a lot to try and help other inmates, giving them legal advice but - many of them that have problems with literacy, things like filling out forms for them. I was asked by an officer to share a cell with another inmate who was illiterate in order that I might help him with his literacy, which I gladly did. So all of these things are things that I believe I'll be able to return to, even though to the day I die I will be remorseful for what I did.
Can I say in that regard too, I read - my solicitor gave me the victim impact statements and I read them, and the last couple I found very chastening and very sobering, and they did nothing but increase the extent of my remorse because they put the offending of what I did fairly and squarely in front of me."
1. I've quoted at length from these parts of the evidence that came from the offender, and if he is to be accepted as sincere in these various representations, it would follow that he has given evidence of his contrition and remorse and his recognition of the harm that he has caused to these various victims. The question that arises, though, is the extent to which the Court can accept as heartfelt and true these expressions of remorse, and whether he has simply put before the Court what he anticipates the Court would want to hear, if it was to mitigate the penalties to which he is exposed.
2. There is something of a tension between what he said in the passage I last quoted regarding his custodial arrangements and the opportunity he had to help other inmates, including an instance of an officer who asked him to share a cell with an illiterate inmate in order that he might help him with his literacy. This, he said, he gladly did.
3. His evidence continued, though, regarding his custodial arrangements:
"Q. Mr Hansen, just pausing there, what sort of protection are you on whilst in custody?
A. Thank you for reminding me, I'm on A level security, which is maximum security. That's only as I understand it from the officers because of the potential maximum sentence that I will be re-sentenced once his Honour actually sentences me. But as to protection, I was put on the highest level protection after I - which was called 'limited association', after I was threatened at the Kariong Centre in November 2018. I retained - that protection status was retained. In other words, I was still on the highest level of protection until I think it was November last year when PRLA was discarded or abolished through the whole of the system, and then I went on to the next highest level shortly - next highest level, short of solitary confinement, which is called, 'SMAK' [that should read SMAP]. Forgive me, I don't know what the acronym stands for.
So I am protected from the main level of population because of the nature of my offences, because of the significant media attention that my case received in, I think it was February 2019, I think I'm right about that, and the specific threats against me.
Q. How much time, and it's changed over the last 12 months or so, but how much time would you spend confined to yourself per day?
A. Unless there's a lock in, in which case it's all day, let me see, 24 hours less the period from approximately 9 o'clock to 2 o'clock, that's five hours, so seven hours.
Q. And that's every day?
A. In Long Bay every day. I'm sorry, I should say that here in Goulburn I'm very happy that I have work in Goulburn. This is the second time I've had work. Back in Kariong, up until I was taken away from Kariong in November 2019, I worked as a laundry sweeper. Here now I'm working in the - what they call the textile factory where prison uniforms are tailored, and I help to do the clipping of the threads, and for that I get up at ten past 6.00 in the morning, and I've taken out and we work until 11.30. ['I've', I believe, should be 'I'm'.] We remain in the factory until 12.30, and then we come back and it's half - it's a half hour later here. We go back to the cell at 2.30. That's only on workdays, so recently we haven't had any work because there was a problem in the factory. So that increases the day a little, but apart from that, it's the same as Long Bay, it's six hours either side and - sorry, what did I say? Seven hours outside and 15 just to remain in the yard. Seven in the yard, if I'm not working, and 17 in the cell."
1. His evidence addressed letters he wrote to the Court. He acknowledged that he prepared, certainly two letters. Counsel referred to three, but it was resolved that the third was, in fact, a type-written form of a handwritten document that he provided. One of the letters was dated 18 December 2019, and the other 18 January 2021.
2. He gave evidence of his medical history.
"Q. Now, just going back in to your pre-custody history, you have undergone a number of surgeries over the years?
A. That's correct.
Q. One was in 2015 relating to a cardiac issue?
A. That's correct. May I give details?
Q. Yes, please.
A. Yes, it was undertaken in - I think it was late April, if not early May, of 2015 at the Prince of Wales Private Hospital by Dr - I'm pretty sure his name was Hughenden, a cardiac surgeon. It was to replace five artery segments, or segments of five different arteries. In other words, common parlance, five bypasses.
Q. Prior to that, did you have an operation in relation to your prostate?
A. I did. May I, again, give details?
Q. Yes, please.
A. Yes. The operation occurred - I'm pretty sure it was the second week of December 2010. It was performed by Dr David Clark, neurological surgeon at the St Vincent's Private Hospital in Melbourne, Fitzroy in Melbourne. It came after I'd been under Dr Clark's care for about four years for prostatic symptoms, which had been treated by pharmacological treatment, but they became less efficacious over time, so that he needed to do the TURP's operation. There was then a further procedure. It certainly was an invasive procedure, whether you call it surgery or not, I'm not sure, and that was done I think about 31 December, I remember I was in hospital for New Year's Eve, and that was to correct some problems that had occurred from my own stupidity in lifting too heavier weight too soon.
Prior to the operation, or the first operation, Dr Clark warned me about the phenomenon of retrograded ejaculation, and told me that there was approximately an 80% chance that I would fall into that category, and he was right. I did fall into that 80%, and I have never ejaculated since that time."
1. I pause here to note that this is inconsistent with the statement of facts describing his sexual arousal and his participation in the sexual activity there described. The evidence continued:
"Q. Did you notice anything about that initial operation or operative treatment in relation to your capacity to have an erection?
A. It greatly diminished it. I would be able to sometimes in a state of considerable arousal get a very inadequate erection. However, and again I was warned of this pre-surgically, whatever erectile capacity I had was completely snuffed out by the cardiac surgery. So that since the cardiac surgery, I have been unable to obtain any erection of any sort other than when I once went to a specialist who injected something and that obtained some form of, some sort of erection but nothing good. Even I consulted my GP about it and he tried the normal sorts of medication for erectile dysfunction and they failed to work and had horrendous side effects. I know it's not particularly relevant, but for what it's worth I also had many other side effects of the cardiac surgery, loss of sense of my smell, lost sense of taste, all of this was predicted to me and it all came to pass."
1. At that point the Crown rose to object to the evidence, drawing upon s 191(2) Evidence Act 1995, which provides that evidence may not be adduced to contradict or qualify and agreed statement of fact unless the Court gives leave. In the exchange that thereafter followed between the bench and the Crown, the Crown identified paragraph [64], spoke of a number of the agreed facts, and quoted the passage, "The offender was masturbating while he performed oral sex on victim 16." She then took me to paragraph [68], in relation to sequence 25, "The offender was masturbating while he performed oral sex on the victim." Then at paragraph [77] on the same page, "The offender has then masturbated until he has ejaculated." She took me then to paragraph [105] in relation to sequence 27, but acknowledged a mistake that she made earlier in respect of that.
2. The evidence and the representations of history given to Dr Nielssen tended to challenge the paragraphs identified by the Crown, which I brought to counsels' attention. There followed an exchange with counsel. In due course, it was necessary for counsel to consult his instructing solicitor to ensure that there was no embarrassment to him in his continued appearance in the matter, in light of the contrast to which the Crown pointed. Mr Radojev was given that opportunity. He spoke with Mr Huynh, and in due course the issue was resolved such that Mr Radojev did not feel that he was in any way embarrassed in his appearance in the matter, and it continued on with the assessment of sentence to be determined upon the content of the agreed statement of facts.
3. As I understand what was said to me, the document containing that material was put before the offender, who acknowledged to the solicitor its accuracy for the purpose of the sentence proceedings, and he in turn signed the document tendered on the offender's behalf.
4. The offender's evidence continued. He admitted taking photographs of children in Vietnam and Manila for sexual gratification. He challenged the information provided by Dr Nielssen that they were taken so that he might trade them. He denied having said any such thing to Dr Nielssen. In the exchange that followed, in which I participated, it appeared to me that there might have been some risk of miscommunication or misunderstanding, noting that the phrase used was that the photographs were for trade rather than to trade them, so that the suggestion of a commercial aspect could not be said to have been available from this part of the evidence.
5. The offender asserted that he only sent the photographs to one person. It was never his intention to trade them generally on the Internet. The person to whom he sent them was the other person involved in the Brosix conversation. It was from that person, as I noted, that there was a transmission of images to the offender. He asserted that he named that person to the Federal police officers. He repeated his challenge to the representation by Dr Nielssen on this point.
6. In his statement that he provided to the Court with manuscript modifications of 30 January 2019, he acknowledged naming a number of people, and I will come to that document in due course. It included the person with whom he engaged on the Brosix application.
7. He was referred to a letter to the Australian Federal Police in relation to assistance. There was some confusion that arose in the course of this examination-in-chief, and I have that document, to which I shall come, after I have finished dealing with the offender's evidence. That document was marked exhibit 2 in the proceedings; and there was reference to exhibit D, which is the actual letter of assistance. Exhibit 2 was a draft letter which the offender said he signed. The letter of assistance was marked exhibit B.
8. He was taken to the document which he wrote witnessed by his solicitor and the passage in the following terms, "Should Federal investigators wish to offer me an induced statement, I would certainly consider further cooperation." He said that no-one came forth in response to offer an induced statement, or any other incentive to proffer further evidence. The manuscript document, to which there was reference, became exhibit 3.
9. The Crown then cross-examined the offender, might I say, with significant effect; but throughout it must be said that the offender continued with the same attitude that he appeared to present in the course of examination-in-chief. The Crown elicited the following points:
1. He had child pornography in his possession since 2008 at the time when he was a catholic priest.
2. In 2010, he was referred to Dr Chris Canaris.
3. This came about as a result of it being recognised that he had been using pornography, accessing pornography.
4. He described that as beginning with young Asian males, and progressed from there on to underage Asian males, though the particular type of pornography was not provided to those who provided this intervention, or indeed to Dr Canaris, who was unaware that he was looking at and in possession of child pornography.
5. He told Dr Canaris that he was looking at pictures of young Asian males. He did not recall whether Dr Canaris explored with him what he meant by that description, "Young Asian males".
6. He did not receive treatment from Dr Canaris, but participated in cognitive behaviour therapy administered by psychologists in group and individual sessions. He also was given medication, specifically Lexapro, said to address his chronic and acute anxiety, as well as to address his accessing pornography.
7. He was referred to the doctor by the Vicar General, under the auspices of the archdiocese. The sequence he described was being referred to as "psychological service", and then a referral on to Dr Canaris.
8. He was in treatment certainly for weeks, but thought it was months. He acknowledged that it was fair to say that the treatment did not succeed.
9. It was put that he left the priesthood in 2011, because he had been caught with pornography. This he rejected, because, he said, he left entirely of his own volition. His use of pornography was not the entire reason, but it was not irrelevant.
10. He was doing parish work involving a primary school.
11. He saw Dr Canaris again in 2015 for the prescription of an antidepressant. It was long after he had left the priesthood, some four years afterwards. He did not think that he told Dr Canaris he was still having difficulty with pornography. He saw him for a medication review.
12. His assistance with regard to pornography was up to 2010 and not thereafter, which was the effect of his evidence.
13. By the time he saw Dr Canaris in 2015, the contact offences had commenced, as had the offences involving the photographs of the children. He acknowledged that his behaviour had thus escalated. He had the opportunity to go and seek help and stop the behaviour when he saw Dr Canaris, and in response to that proposition he said, and I quote:
"A. That goes back to what I said before about compulsive addiction, did I have the opportunity, yes, I did, but I was suffering from this internal conflict, this very considerable fear that effectively stopped me from doing so when it now is perfectly clear to me that I should have done so."
1. The Crown promised to return to the term "compulsive addiction", and went on to refer to his attendance upon a psycho-analyst in Melbourne, Dr Susan Joseph, on about ten occasions in 2010 and in to early 2011. He wanted some follow-up treatment for what he had experienced in Sydney where he had the assistance of Dr Canaris. He said that when asked whether this was in relation to his use and possession of pornography of young aged males he said:
"A. That was certainly discussed, but at Dr Joseph's behest, nearly all of those sessions were going back into early life and looking at causal factors that arose out of my background."
1. He agreed that the assistance, whatever it was, given by Dr Canaris and Dr Susan Joseph, had no effect. He accepted that he was partly to blame for this, and that he certainly would not blame the clinicians, because he had not at that point hit rock bottom in the way that he has now, and he drew the analogy of alcoholism and how those who are so burdened continue to rationalise their drinking until they completely crash.
2. He acknowledged that he was arrested on 6 October 2018 at the airport, charged with the possession offences and importation offence, and that was, at least, a year and a half before he was charged with the production of child pornography when engaging in the other Federal offences. He said he did not know anything of the contact offences being preferred until a couple of days, or a few days prior to 28 February 2020 when he was to appear for sentence.
3. Leaving aside the timeline identified with reference to dates, the Crown put the essential point that there was a period of time between the arrest for the possession charges and his arrest for the other contact offences, which he acknowledged. He did not tell the AFP about the contact charges. He asked if he could explain why; and when given the opportunity, he said:
"A. Although I am now a disgraced one, I am, nevertheless, a lawyer, and I can remember in 1975 when I did criminal law and then 1976 when I studied evidence, that I was always taught that the Crown has the obligation to make the case, and, therefore, I waited until such time as those charges were brought against me. I don't think that being contrite and being remorseful is inconsistent with not wanting to have your sentence maximised."
1. I might observe at this point that the observation made by the offender is perfectly accurate. He was not obliged to expose the full extent of the misconduct upon which he had engaged. He was permitted, and entitled, to remain mute about any other offending upon which he engaged apart from that with which he had been charged, and his decision to take that stand should not be brought against him in the assessment of the determination of sentence other than the assessment of the extent to which he has demonstrated contrition and remorse. He was perfectly entitled to exercise his rights in those terms, but that decision carries with it the proposition that he was careful to limit the expressions of contrition and remorse only to those matters upon which proceedings had been commenced.
1. He did not know, he said, that in the intervening period, the children victims in the Philippines would have to be interviewed and subjected to investigation. He said he did not know any of the contact charges would be brought against him.
2. The Crown took him to the asserted trauma suffered at walking through Sydney Airport in handcuffs, which, upon the evidence he had just given, must have been only in relation to the possession charge. He answered:
"A. I thought I made it clear in my evidence-in-chief, but I didn't, I apologise. The trauma that I suffered was the sense of shame that came from my public exhibition, and that is a triggered response in my subconscious to sexualised image of children that also arose from my subconscious, it had nothing to do with the subject of my charges at any given time. So before I was charged with contact offences, it would have arisen from the old charge. When it would occur, subsequent to my new set of charges, it would have arisen from then, but you're quite right to suggest that I knew what I had done, and I felt bad about what I had done, and that I was - you know, my - in my consciousness I was - I'm trying to think of the right word because if I say I was traumatised, it will sound as if I wasn't thinking of the trauma to children but only of myself. I don't think those two sets of trauma are inconsistent."
1. The Crown took him through his attendances upon Dr Nielssen, the first of which was before he was charged with the contact offences. She reminded him of his representations that his involvement was purely voyeuristic, with the positive assertions that he did not involve himself in any actual sexual contact with children, despite having the opportunity for sexual contact. He responded:
"A. I have a very clear and vivid recollection of my conversation with Dr Nielssen at the time. Initially he asked me, 'Did you have any sexual contact with these children?' I said, 'No.' He then said, 'I have looked through the material provided to me from the police statement, or whatever, and I don't see any reference to such conduct', and I said, 'That's true.'"
1. He was pressed upon the proposition that he positively stated to Dr Nielssen that he had no sexual contact with children. Upon his response I intervened at that point to seek clarification upon whether the offender was confining his response to Dr Nielssen to the children that appeared in the images, the subject of the prosecution at the time, and not the children in a more general sense, to which he said:
"A. That's correct, your Honour. And that I did in response to the way he worded the question, which was, 'Did you have sexual contact?'
Q. Just a minute. The question posed as indicated in that document was more in generalised terms, wasn't it?
A. It was, but there again I would suggest, as we saw in other fields, there is some slippage between what he wrote and what he asked me. I have the clearest recollection that what he asked me was, 'Did you have sexual contact with these children'. That is, as your Honour has just said, those referred to in the first tranche of charges."
1. [7] I was part way through summarising the evidence that came from the offender, and part way through the cross-examination.
2. The evidence continued with the Crown bringing to the offender's attention the proposition that he did now agree with aspects of Dr Nielssen's first report. He was asked what else Dr Nielssen got wrong in response to which he said there were a number of things. He referred to the Doctor's use of the term accidental lawyer, which he denied having said, representing that he said that he was an accident lawyer, a personal injury lawyer. There was also the suggestion that he was in a de facto relationship with his former associate or partner when he was not. He described that relationship as a friendship, that it could not be in any manner regarded as a partnership, and that they fought often through the whole period.
3. When dealing with the second occasion that there was consultation with Dr Nielssen he said that they spent about ten minutes at the start of the interview by going through the errata in his first report.
4. He did not agree with the Crown's proposition that there were limited changes between the first report and the second report. He had no opportunity to deal with those mistakes, which he said were present because of lack of communication with his lawyers. He denied having told Dr Nielssen that he lived with his lover for at least two years. He said that he had a close relationship with a man that was over two years in length, but that he lived with him for precisely three months.
5. He was unaware that Dr Nielssen performed the Static-99R test, acknowledged he may have had asked questions that enabled that test to be completed, but he had never seen the instrument and it was not said by Dr Nielssen that they were about to embark upon psychometric testing.
6. The cross-examination then proceeded to the proposition of him trading with or in the photographs and the Crown referred to the report where it said that there were a number of images far greater than he, the offender, could ever use and that he rarely reviewed the material collected. At that point, it appears from the transcript, the offender sought to interrupt or predict the question. He was taken to task about that. He apologised. He was then reminded of what he said in evidence-in-chief, that this was another error in Dr Nielssen's report that he did not take them to trade or even recalled that. I referred to this earlier in the judgement and perhaps the ambiguity in the use of the term in the context.
7. The Crown asked him why did he take the photographs and he gave the following answer:
"Two reasons. I deliberately used the words 'sexual comfort' rather than 'sexual arousal'. So in other words, for my own use, and secondly, to give to that person who I identified to the Court previously. As far as the number is concerned, I think it is pretty clear that what Dr Nielssen has done there is to conflate those which I possessed, and for which I was charged with possession, for which I don't concede runs to 100,000 incidentally. But he's conflated that set with the photos which I took, which I don't know how many there were but they were certainly of a limited number."
1. As will be revealed shortly, I sought some clarification of the distinction to be drawn between the phrase 'sexual comfort' when placed along the phrase 'sexual arousal'.
2. The Crown put to the offender that he had no control over what the other person did with the photographs. The offender said that he asked him not to send it on and he promised him that, but that aside he had no control. He denied the proposition that according to his knowledge and understanding these images could have been posted on the Internet. He was then reminded that there was an agreed statement of facts to which he said "Yes, but I wasn't aware as to its contents until today. Again, may I explain that answer?" I said to him, "Yes please" and he said,
"Yes. I have provided with a draft of a document, I forgot whether it was - sorry, I was provided with a document. I forgot whether it was this year - early this year or last year but it was certainly in Long Bay. I was told that the document was a draft. I looked at it and I said 'well there are things in here that are not possible. I am unable to ejaculate and although like any other man, I can put my penis in my hand, it would be no use in terms of the aims that people have in masturbating, that is in achieving erection or achieving ejaculation. And so I said look I don't think that should be in here. I pointed out to my solicitor that I've admitted much more - what I regard as much more heinous things than this but I wasn't going to admit this because it's physically impossible."
1. The Crown then reminded him that a moment before he had taken issue with a number of images to which he then said,
"No, I took - I'm sorry - I thought - I understood you to say, or to quote Dr Nielssen saying, that there were more photographs than I could ever use, and my response to that was that seems to me to be the set of photos referred to in the possession charges, of which I would have said that because it did not run into thousands. I do not dispute the number in the charges of photographs in relation to production."
1. I then offered the view that I might have misheard but thought that he said almost an aside that there would not have been that many with reference to the 100,000 images. My reference to the transcript a moment ago confirms my perception as expressed. The offender said,
"Yes, I did say that and I do dispute - I do dispute the 100,000 figure, and my basis for doing so is that I suspect that there is a great many repetitions, a great many repetitions in there. So there might be 100 - I have no idea, there might be 100,000 individual files, but it wouldn't amount in any way to 100,000 individual images."
1. The Crown then sought the opportunity to take instructions but before I allowed her to do so, I asked the offender about the phrases 'sexual comfort' and 'sexual arousal.' I asked how he distinguished between those two concepts. He said
"Almost in the common usage of the word your Honour, arousal means being taken to a height of excitement which is normally associated with sexual activity. For me looking at my photographs was almost a soothing thing, it almost a soothing thing, it almost diminished or not almost, it did diminish my anxiety, it took me to somewhere that was familiar and safe."
"Q. So you mean by sexual comfort, by looking at these images, you were able to dissipate whatever your anxieties might've been at the time you were going through the process, is that what you say? A. Yes, it is in fact were I to back away from the phrase, 'sexual comfort', it would be the sexual part that I back away from. I can't explain any better than to say when I looked at them, I could feel my sense of anxiety diminish. It was a more comforting activity than other things that I had to confront in life."
1. As I will indicate at the end of this judgement, I do not accept that explanation.
2. I then asked him,
"The other thing that you said is that you took steps to have the person to whom you gave these images undertake not to deal with them further beyond his receipt of them from you, is that what you said?"
1. He acknowledged,
"Yes but I would have to admit that they were fairly impotent steps".
1. I then asked what his purpose was in giving them to that person. He said:
"So he could use them for the same reason as me and also so that he would then give me some back which he did."
1. He said that the same reasons he had them were the reasons why the other person wanted them, and he added,
"With him I don't think he faced my psychological problems, I assume it was for sexual excitement but I don't really know."
1. I then allowed the Crown the opportunity to take instructions, and there was discussion about the risk of the proceedings moving to a point where facts might be disputed requiring a different approach in the determination of the matter. At the transcript I am attributed with,
"He's in cross-examination so you'll have the opportunity to conference him."
1. This was when I was allowing Mr Radojev the opportunity to also take instructions from his solicitor. If I spoke in those terms, it was incorrect and is inconsistent with later followed. It should read,
"He is in cross-examination so you'll [NOT] have the opportunity to conference him".
1. There was discussion as to what Mr Radojev understood of the offender's evidence and what he in fact disputed with regard to the 100,000 images. I note that was one aspect of challenge to what Dr Nielssen had written and there was also the most difficult point as I have described it, that the agreed statement of facts appears to contain material which the offender, according to what he said a moment before was included in the draft of the document which he challenged. Counsel was not privy to any such discussion and I adjourned to allow Mr Radojev to speak to his solicitor. Mr Radojev returned and represented the following;
"Thank you for the time your Honour. I've had a discussion with Mr Huyhn who instructs me. We have in front of us the document which is said to be agreed facts of 20 November 2020. The copy I have, and probably the copy on the Court file only has Mr Huyhn's initials on the right hand bottom of each page plus Mr Huyhn's signature with a signature of the Commonwealth Director of Public Prosecutions or his representative on the last page. And they are respectively dated 20/11/20 by Mr Huyhn and by the representative of the Commonwealth DPP dated 5/2/21. Mr Huyhn advised me that in fact this particular document in its current form was presented to Mr Hansen, signed by Mr Hansen and there's a copy of Mr Hansen's signed agreed statement of facts in Mr Huyhn's offices and they can be sent through to both the Crown--"
1. I then asked, "Comparable to what was exhibited?" Mr Radojev continued.
"Those are my instructions and I remember Mr Huyhn advised me of a couple of minor deletions in the original document, in this document which ..."
1. Then I spoke "In those circumstances there would seem, to be no risk of embarrassment to your instructor."
2. Mr Radojev noted that he had taken notice of what had occurred in the course of the evidence. I announced that the cross-examination could in the circumstances continue. Mr Radojev said, "No your Honour, they are certainly my instructions." I then said, "Alright, the cross-examination then can continue Madam Crown at the conclusion of which Mr Radojev should have the opportunity to conference his client before he re-examines if - which to that." I believe I said, "If he wishes to do that."
3. Mr Radojev offered to have a copy of the document to which he spoke sent to the Crown and to my associate and I allowed him to make the decision whether to do so but satisfied myself the matter could proceed as it had been intended, to which Mr Radojev spoke and said he was more comforted by what he was told and cross-examination then resumed.
4. In re-examination, there was no further issue advanced that raised any challenge to the agreed statement of facts.
5. In further cross-examination, the Crown referred to the offender's letter of 18 January 2021 and his representation that the offending was against his internal moral values. He agreed that he was accessing child pornography when he was a Catholic priest and he was invited to consider that internal moral values had no effect on his then conduct. His response to that was, "Because of the nature of my compulsion, no."
6. He was then asked, "Following the treatment you received, your internal moral values have no effect to take on board that treatment in 2010, did it?"
7. The question appears to have been misheard or mistyped. The offender's response, "Because of my compulsion, no."
8. The Crown then asked, "Your internal moral values didn't lead you to volunteer information about your further offending at the time of your arrest did they?" Answer, "No, that was more a question of my legal training." When asked why he now said that his internal moral values had any role to play when they did not at any point between 2008 and his arrest, he said;
"Because I'm now in a situation with a circuit of offending and the circuit for compulsion has been broken by two and a half years in prison. And also because I can run and obey it no more. I now have nothing. As I said before, I've hit rock bottom, I have nothing left to lose. But on the positive side, I have now a self-confidence; in saying that I do not need to return to this conduct and I will not return to this conduct."
1. The Crown then took him to the proposition that he represented that possession of these items was linked to his hoarding behaviour. He said he didn't recall using the phrase, "hoarding behaviour" He said he might have said it, but if he did, it was in relation to the collection of pornographic images only, not to his more general lifestyle. He confirmed that the images were organised in electronic folders on the devices where they were held. They were divided into the place where the images were captured. He used names for the children depicted in the photographs. He qualified that with the representation that subject to being corrected, he thought they were not in relation to those that he took but only in relation to those that he garnered from the web.
2. Again, the Crown invited him not to pre-empt questions but to listen to what the question required. She said that the questions were in relation to the photographs he had on the hard drives, the possession charges, and the question was therefore limited. She then gave examples adopting names used in the folder. He was also asked about his organisation in terms of the type of image depicted; for example, the differences between shots and videos, broken up between the two, which he acknowledged. He acknowledged the use of the names of the children but represented that he was sure that he would not have been the person who concocted those names; they would have been taken off the web.
3. He was invited to a folder which was labelled "Censored Bondage with 120 odd images. He said, he didn't recall those images, that he found bondage incredibly distasteful and was quite sure that he would never have looked at them. But when asked why he did not delete that folder from the computer, he said, "Well it's a good question and I could've done so but I'm sure that I wouldn't have looked at them because I have received neither comfort nor arousal for them."
4. He was invited to consider the folder entitled "Unsorted models" with 155 images which he acknowledged and he acknowledged in terms that he could have easily accessed those photos in the storage in which they were held if that was his wish and again referred to this as a compulsive activity.
5. He was moved then from the 100,000 images on the devices to the images captured in the Philippines and his payment of money to the children for their participation in that conduct, which varied from child to child. He could not remember precisely but suspected that the proposition was correct and in terms acknowledged the propositions advanced by the Crown, focussing upon the boys who were sexually assaulted and photographed. He denied that the amounts of money paid correlated to the level of participation of the child or how he had found them. He denied that with, "absolutely not, I refute that."
6. He was taken to the chat between himself and Maliboy Hornbag. He said he had not read it for a long time but was aware of it. He was reminded that the discussion included how much he should pay boys to participate. He said,
"Yes but I would add that virtually, the entirety of the conversation which is a shameful and disgraceful conversation I'm which is I'm sure accurately recounted there, nevertheless, most of it lies somewhere between the realm of fantasy and bombast."
1. He was taken to the representation that outstanding performers whom he really liked might receive up to 500 but that was his absolute limit. He agreed that he said that and he agreed that he was warned by the other person against paying too much. He was asked;
"Q. And it is the case that if you thought a child was an outstanding performer or you liked them, you gave them more money than the other children, didn't you?
A. No that is wrong and the reference to that as I say lies somewhere between fantasy and bombast. There are many reasons I'm utterly ashamed of that conversation going on, it stuck of truth being one of them".
1. The difficulty with that representation though was the evidence that is before the Court, by way of the agreed statement with regard to the money that was paid to these children, who I have no doubt were treated as mere commodities by the offender in the pursuit of his goals.
2. He was asked further questions upon the variable amounts paid to the children. The Crown put that the variation was significant from child to child. His response to that was,
"I don't - that's a subjective thing, I don't understand your gradient scale".
1. He had no reason to disbelieve the proposition the Crown advanced regarding that he paid on one instance the equivalent of about $8 Australian and on another incident the equivalent of about $40 Australian. He said,
"Well for a start I don't know that it's true, I mean I could imagine variations but I don't know that it's true that I paid them such varied amounts. If it is, I can't account for it."
1. He denied considering the harm that he was doing to these boys as he was assaulting them. His response to that proposition was,
"No because if I had I would have ceased immediately. I put it out of my mind, you're right."
1. The Crown then moved to the production of pornography in Vietnam, and went through the particulars of that misconduct, and reminded him of photographs taken of another male adult sexually assaulting the children, which he acknowledged and which he knew was taking place. He did not take steps to stop it. When asked why, he said,
"Because I allowed my compulsion to override what should've been a proper moral judgment and that's why I'm before the Court, that's what I'm very remorseful for."
1. The Crown referred to his second letter to the Court and the term 'compulsive addiction' used a number of times, which does not appear in the first letter to the Court. When asked where he acquired that term, he said,
"Two and a half, well not two and a half, whatever the gap between them and that period of contemplation when I - and sorry not only contemplation but also participation in the remand addiction course, where I recognised so much of the behaviour that was being described as being my behaviour.
1. He acknowledged that Dr Nielssen did not diagnose him with a compulsive disorder.
2. Again the Crown invited him simply to answer the questions asked and he apologised for what I accept as his attempt at pre-empting what was being put to him. The Crown repeated the question that he was not diagnosed with having a compulsive disorder to which he said,
"Yes but he and I might be talking about very different things when they talk about a compulsive disorder. He's talking about a clinical diagnosis, I am talking about just the way I feel, the way I can use words to describe it. I'm not a clinician."
1. The Crown put that he was telling himself that he had a compulsive addiction to try and justify his behaviour and the offending. He said,
"Not even slightly in case there's any equivocation about that. Let me make it quite clear. I do not blame my offending or I do not suggest I have a diminished responsibility as a consequence of my compulsion. I should have exerted my will, I raise it not as an excuse but as a reason and I expect no leniency as a consequence of it."
1. A worthy observation and one which I have decided ought to be applied.
2. He was reminded that in the second letter he constantly referred to this is the cause and reason for offending and he said he maintained that. He said in further response to the proposition that there was a progression in his misconduct in the level of seriousness,
"Because as I think you implied before it was a cycle and it was an ever increasing cycle and it was a cycle that I didn't have the strength of will to break but my time in prison has broken."
1. He acknowledged that he spent far more time explaining the trauma to himself than acknowledging the trauma to the children. He said;
"I was given guide - I was told that there were certain matters that I should raise and I should provide space to each of those matters."
1. He acknowledged that in his second letter he acknowledged that his actions necessarily imply psychological harm to the victims, even where such harm is not initially evident. He acknowledged that is the only trauma that was expressed in his second letter. He said,
"Yes, keeping in mind that I wrote the letter prior to reading the victim impact statements, had I read the victim impact statements prior to writing the letter, I should have said something different. As I said in my evidence in chief, I found the victim impact statements to be chastening and sobering and they accentuated my sense of contrition."
1. He wrote the letter, the second letter, before he saw the victim impact statements but saw Dr Nielssen after he wrote the letter. He acknowledged that he did not discuss with Dr Nielssen at all the trauma suffered by the children. He then spoke of having made clear to Dr Nielssen that regardless of the age of consent being different in these other jurisdictions, what he did was harmful and wrong. He also said that Dr Nielssen did not explore with him to any great extent, the psyche of the children but concentrated on his psyche. He claims he spoke of all the boys he assaulted in Cebu.
2. Again, the Crown challenged him for not listening to the question. He was asked regarding his failure to discuss the conduct beyond that which was exposed in the reports by Dr Nielssen. He said,
"No, because he didn't raise questions about the cohorts outside of those with whom I was charged with offences of sexual intercourse and sexual assault."
1. The Crown took him to the representation attributed to him by Dr Nielssen,
"...looking back I can see that there was a certain predatoriness in it, as I was abusing the fact that these kids were poor and needed the money. That goes very much against my own values."
1. The Crown invited him to the view that it appears he had two sets of values: one to make it look as if he is an outstanding or upstanding member of the community and the other when he was victimising these young boys. His response,
"No, I have one set of moral values and they have nothing to do with my standing in the community, they have to do with my deep-seated beliefs. The problem is that I had a propensity to run away from those values and ignore them, and it's that, that led to my predatory behaviour."
1. Then it was put that the offences were not of opportunity but were planned and predetermined. He said to a certain extent they were. He denied that he had the person Donozo find premises where he could be ensured privacy. He denied that was the case. He said that the Crown could be assured that he found the premises on Airbnb. When it was put to him that he went to the premises in order to abuse young boys he said,
"No it was only - it was but it was one of a number of reasons."
1. He was taken to the proposition that the boys thought they were going to have modelling photos taken by Donozo, and upon that misrepresentation they were brought to the offender's attention. His response to that was,
"Post facto, yes. Pre facto, no."
1. He agreed that Donozo was scouting for boys but not to assess whether they met his tastes. He agreed that he paid Donozo a lump sum for the services he provided.
2. The Crown put to him,
"And far from being any kind of obsessive compulsive behaviour, this was planned and premeditated behaviour on your behalf, wasn't it?"
A. I don't see a necessary conflict between the two. I think both can hold together."
1. He was reminded that in Dr Nielssen's report, he was attributed with a representation that he did not achieve orgasmic relief from the offending, whereas in the letter to the Court he acknowledged his offending was for sexual gratification. With regard to that, he said
"Well, again you're comparing things that are not properly compared. Sexual gratification does not have to mean orgasmic relief. I say again that it was a form of comfort."
1. He then went on to describe having had no more than two orgasms of a very compromised nature since 2010. He used pornography for something very different, not necessarily better but different.
2. The Crown then took him to the evidence regarding the trauma from being arrested, linked to his sexual fantasies, and it was put that he was far more concerned about the trauma to himself than the trauma to the victims. He said,
"No I'll repeat again, the evidence that I gave in chief. You're once more conflating to things that are entirely different. Images and thoughts that arise uncontrolled from the subconscious and the process of conscious wilful thought when - without my control, as with anyone, a thought arises in my subconscious and it's sexual in nature, it's met with a trauma that I suffered, again drawn from my subconscious. I can't help it, I can't control it. But when it comes to my pondering, if you like, upon all that happened and all that I have done, I can assure you that the trauma that I caused to the boys is at the absolute forefront of my thinking. I'm a predator and remorseful for it and I am sickened by it."
1. I then asked a question that he sought to qualify; I commented that the Crown might be correct; he did attempt to redirect the question. I then said,
"The Crown was asking you this question, were you more concerned about the trauma upon you by reasons of the arrests and the circumstances that was made than for the trauma experienced by your victims?"
1. He denied in absolute terms that that was not the case. I then asked,
"You said that you didn't appreciate the significance of what these boys suffered until you'd seen their victim impact statements. Is that an accurate summary of your evidence regarding that?"
1. Answer,
"I think it made crystal clear. I mean of course it was obvious to me that what I did to the boys was wrong, that was very likely to have caused them harm. What this did was to confirm that, to let me know it in their own words. So it took it from the realm of what I was imagining to what I knew."
1. I then said,
"Because the images that were shown to me this afternoon - correct me if I'm wrong Madam Crown that they, at least some of them related to the charge identified to sequence 13."
1. There was then some discussion about my misapplication of those photographs to the particular count and there was a discussion with the Crown regarding that. I will come to those photographs shortly.
2. The discussion continued at which I said,
"The premise is still accurate, I believe."
1. I then addressed the offender,
"What I'm concerned about is why you could not appreciate from the very images of which you were found to be in possession, that those children who [were picked as participants in penetrative sex] would not have experienced a trauma in that activity? Why it took the victim impact statements to alert you to the significance of that behaviour/"
1. I should interpolate here that my reference to penetrative sex in this instance was not with regard to any penetration of the child victims but was with regard to the fellatio upon with which the offender engaged. He said in response;
"Your Honour those photographs that were not taken by me or those images not taken by me but they were gleaned from the Internet. I'm sure that a small portion of them in the category 5 that the prosecution categorisation would have, but I should never either downloaded them or kept them. I'd seldom if ever referred to them as can be seen by the fact that the vast bulk of my collection lay in the far less serious category, but that I possessed, even if I didn't look at those photos in the more serious category, it is to my great discredit because I'm sure your Honour's presumption is right, that that would have involved considerable pain in half of those children. And I support, by retaining them I supported an aberrant industry and I should have said that in my evidence-in-chief."
1. I then said,
"Q. Because the problem I'm having is this. You have represented enlightenment, late in the day from a combination of circumstances, including the victim impact statements. I have difficulty accepting that, bearing in mind that someone of your obvious intellect and your achievements academically, why you would not appreciate the significance of this wrongdoing at the time you were engaged upon it, both in terms for the possession, distribution offences and the contact offences.
A. Because there was a huge disconnect between my intellect and my willpower and I allowed my weak compulsion to overrule what your Honour quite correctly says was a clear understanding that this was wrong."
1. I will at this point turn to the sample photographs that were provided and contained in an envelope which I have maintained in a sealed envelope with an Australian Federal Police seal across the envelope seal. They were viewed in open court. It is unfortunate that it is necessary that I turn to them once again, in light of the confusion apparent in my mind at that point of the evidence. I note they are images of pubescent boys, naked, in a state of arousal and otherwise, including one with an obese adult male embracing and being embraced by a pubescent Asian boy, and other occasions with these boys or some of them in embrace. I will return those images to the envelope and they can be sealed at the conclusion of the judgement. I will invite the Crown to sign for them and they can be returned. I have no further need for them. They should be retained by the Crown, for such use as an appellate court might want to make of them should this matter go elsewhere.
2. I then invited the Crown to resume her questions. He was asked whether he had a format to follow when he prepared his letter to the Court. He again repeated that he had three areas that he should cover upon the advice of his legal team. He should cover his sense of remorse, what has happened since he has been in gaol, and what will happen in the future. Nothing more was said. He denied that he was simply writing what he thought the Court would need to hear.
3. He was asked whether he studied the psychology of child pornography paraphilia while in custody but only he said insofar as it is to be found in law reports. He said that he had access to child pornography sentence judgements; an objection followed; ultimately, he was asked,
"Did you have regard to the authorities that is what's taken into account for the benefit of the offender when you wrote your letter to the Court on 8 January 2021?"
1. His response,
"Benefit and dis-benefit."
1. He wrote the submissions to the Court upon the matters the Court should bring into account upon the determination of sentence. He acknowledged this in his evidence and it was a matter that was announced by his counsel at the beginning of the proceedings.
2. This completes the summary of the evidence that he gave.
3. The documents he wrote to the Court are in handwritten form in the bundle tendered on behalf of the offender. It was a letter written on 18 January 2021, Exhibit 2. Exhibit 3 is the letter written by the offender to the Court on 18 December 2019.
4. There is contrast between both documents that I would highlight.
5. In the first of the letters on 18 December 2019, he begins,
"Were I able to identify the young people I drew into my criminal actions, then I would without hesitation apologise to them personally. However, because I cannot do so, I instead offer my apologies to this honourable court. I acknowledge the production and consumption of child exploitation material is harmful to all involved, to its consumers, as I once was, but far more to its innocent victims. that I was once aiding that victimisation causes me great shame, and evokes a response of remorse. This is not only because it contravenes the law, but also because it is contrary to my own value system."
1. The time when he wrote that document was after he had been charged with the offences of possession of child abuse material and the production of child pornography and the transmission of child pornography. As I announced in the beginning of this judgement, when dealing with his pre-sentence custody, he was granted bail upon his initial arrest but in due course bail was refused in relation to sequences 1 to 20.
2. Sequences 1 to 20 were offences of producing child pornography outside of Australia and using a carriage service to transmit child pornography, using a carriage service to have child pornography transmitted to him, and the possession of child abuse material.
3. He was refused bail in respect of sequence 22 on 11 September 2019. Sequence 22 is production of child pornography outside of Australia. Then on 12 June 2020, more than six months after his letter, he was refused bail in respect of sequences 23 to 28, engaging in a sexual intercourse with a child outside of Australia.
4. Thus in my judgement, one should consider the contrast between the opening paragraph in his first letter and the opening paragraph and the letter of 18 January 2021, where he wrote,
"Were I in a position to do so, I would want long ago have apologised directly to the victims of my offending, I instead offer to you, this honourable court, my family, and all those justly angered by my offending, my sincere apology for my behaviour."
1. By 18 January 2021 the prosecution for the contact offences was commenced and thus the qualified representation in the first letter required some modification.
2. Returning to the first letter, he there offered his assertion that he developed an aberrant psychological dependency at a time of stress; he was never involved in commercial dealing for profit, nor widespread dispersal of the images. This was not an excuse he said, because his conduct is not to be excused but was an explanation. He does not endeavour to blame anyone else. His culpability is his and his alone. He should have sought help but did not do so until imprisonment. He then persists with his expressions of deep remorse for the damage he may have done to others as a consequence of his failing to seek assistance.
3. He then wrote of his imprisonment over 17 months; his confidence that he had broken free from his addiction. He wrote of his achievements at the Kariong Correctional Centre, chosen as the one of three, among 96 prisoners, to work in the laundry and perform clerical work in the kitchen. He had limited work possibilities at Long Bay. He again speaks of being able to break free from his former dependents and is looking forward with confidence to post release life.
4. He realises he said that his punishment will not cease upon release from incarceration. He will never be able to return to his past professions and he will suffer from a self-imposed loss because he will not be able to work again with young people. He said he takes great pride in having worked productively, improving the lives of many young people and their families, especially in Asia. He expresses deep shame but he approaches a future with confidence, and he has understandably suffered the loss of some friends, whereas others have stood by him and offered ongoing support. His family remains close. Upon his release, his first priority would be to visit his mother, then aged 92 years. He had spoken to her several times, every week but had not seen her since his incarceration.
5. He would be enthusiastic about performing post-relapse community service. He would be willing to participate in post-release therapy and treatment, including pastoral care therapy, if appropriate. He understands that expression of remorse is mere verbiage if not matched with any meaningful action. He asserts that his conduct in prison demonstrates prospects for rehabilitation. He has a plan for a productive albeit, altered future life without any form of involvement to child exploitation.
6. I repeat, that letter was written with regard to the offences with which he was then charged, and did not extend to the more serious offences described as contact offences.
7. In the letter of 18 January 2021, he speaks of his compulsive addiction, having taken advantage of the victim's youth and of their poverty. This explanation remains his greatest source of guilt and shame. Even though he was acting under compulsive addiction, he speaks of not being delusional about his offending. He recognises that he did it for sexual gratification and not for altruistic reasons.
8. One would wonder how this conduct could ever be for reasons described as altruistic.
9. He spoke of young people being unable to give effective consent to sexual activity. He spoke of actions necessarily implying psychological harm, even when it is not initially evident. He speaks of child exploitation being harmful to all involved but more so to its innocent victims.
10. He describes this as an evil industry. I agree with that observation I must say.
11. He does not seek to justify or rationalise his actions by reference to his compulsive addiction although it does help to understand them and explain them.
12. He agrees that notionally, using his word, he could and should have sought assistance to break away, but with the benefit of hindsight gained from two and a half years in gaol, he now sees that he lacked the strength of purpose to accept the consequences of breaking his cycle of dependence, which he now says has effectively ended. He does not address expressly the opportunities that were available through Dr Canaris, and the arrangements to which he was then exposed, to avail himself the opportunities to deal with this propensity for such misconduct.
13. Indeed the only finding one could make in that regard is that he chose not to do so.
14. He speaks of the insight developed in prison. His mother passed away in July 2020 and he could not attend the funeral. He speaks of multiple threats of violence because of the nature of his charges. That is not included in the earlier document I note.
15. He has been held in protective custody, about which he spoke in his evidence and to which I have already referred. Despite this, his experience in prison was positive. His levels of anxiety have perhaps counter intuitively diminished significantly. Bouts of depression have become infrequent. He has discovered worthwhile pass times such as language study, reading novels and writing stories. He spoke of the productive work at Kariong and the important use of his time to separate himself by two and a half years from his criminal conduct.
16. He speaks of having made enquiries of an organisation called the Institute of Pastoral Counselling, North Parramatta, with a three year post-custodial course entitled 'Men Taking Responsibility'. He has written them seeking assistance and was given provisional acceptance into the course. It will be some little time before he has the opportunity to be in the community to undertake any such further opportunity.
17. He concludes this document with the following;
"I fully appreciate that words of remorse and contrition are only meaningful if backed up by deeds. Despite limited opportunity since my arrest in October 2018, I have already begun the process of rehabilitation which I believe will render me capable of breaking the cycle of dependence and addiction on a permanent basis. I look forward to the time when I can leave prison and atone for my offending by vindicating my confidence in my future."
1. Other documents tendered in his case include the document provided by Psychological and Counselling Services written to him regarding his willingness to undertake the 'Men Taking Responsibility' group, describing what the program involves and the fact that there was at that time, 18 December 2020, a four month waiting list for new clients.
2. I have read what organisation provides.
3. There is a document from the Chaplaincy Service at Long Bay Correctional Centre. This document represents that the offender has regularly attended chapel services conducted by one of the author's colleagues. She met the offender in a small group setting on a one to one basis. He was always polite, respectful and fully engaged in the conversation. He took an active part in the services and was keen to offer his talent as a reader. He has a positive and kind attitude. She noted that he extended his demeanour to the other men in the group. Having had the opportunity to observe the offender throughout these proceedings and in the course of his evidence particularly, I have no doubt that he is able to present in the manner described by the author of that document.
4. Finally, there is an extensive curriculum vitae speaking to the academic achievements of the offender, his employment history, his contribution to the community, his assistance in refugee camps in Hong Kong, his involvement with sponsoring and assisting the resettlement of asylum seekers and their families in this country, his involvement with the Mary of the Cross Drug and Alcohol Support Service and his involvement in the campaign to save a young Vietnamese Australian from execution in Singapore for drug dealing which ultimately was unsuccessful; that was a notorious event.
5. He has upon these representations made a contribution to the community and I have brought that to account; there was nothing offered to gainsay the facts expressed in this document and there was there any challenge to the representations of those good works by the Crown.
6. He also dealt with his health. In 1973, he suffered a pneumothorax. In 1991, he suffered scabies and a bacterial rash which recurs even now. He had a benign prostate enlargement in 2005, requiring a procedure known as TURPS, the acronym for Transurethral Resection of the Prostate to relieve pressure on the urethra and allow the flow of urine with more comfort. He claims that he is unable to ejaculate or achieve functional erection since then. I do not accept that representation.
7. He had open heart surgery in 2015 and there is reference to an episode of bradycardia, which was diagnosed in October 2019 when he was at Kariong. There is reference to anxiety and depression which was the subject of comment in his letter which I have discussed.
8. Exhibit 4 is the record of his voluntary attendance at "Remand Addictions" on in 2020 on January 24, April 20 and 24, May 1, May 8, May 22, July 10, September 11, October 16; and in 2021, on January 4th, 11th and 27th. He attended a 12 step program meeting, said to be "meetings", on 21/02/2020. This was a matter to which he referred in his evidence.
9. Finally, there was as I noted earlier, evidence given about his offer of assistance to police in response to which he said no-one made contact. Exhibit B in the Crown case is a document from the Australian Federal Police headed 'Letter of Assistance', approved by a Detective Superintendent written on 22 February 2021. This was admitted by consent and was not the subject of any requirement for cross-examination or further challenge. The document lists the assistance provided to the date of that letter.
10. These included account login details for two Facebook accounts, assessed as being overt accounts used by the offender for his employment or social communication with friends and family in Australia. There were also covert Facebook accounts used as part of his offending, an example of which was that in the name "Juan Del Porte". This was used to communicate with victims it is believed.
11. The offender did not detail or provide account login details for that account.
12. He also provided login details for a chat application 'Zalo' and 'WhatsApp'. Neither login details provided any assistance to any law enforcement agency as intelligence or evidence which could be used in the prosecution of the offender or any other person. He advised that he also used 'Brosix' and 'Yahoo Chat' but advised they were both abandoned before 2018 and did not provide account login details.
13. The AFP was able to access the 'Brosix' chat application, reflected in the summary of the exchanges contained in the agreed statement of facts. This was accessed without any assistance provided by the offender. The value to the AFP from access to the accounts 'Zalo' and 'WhatsApp' was assessed to be none.
14. Following 10 October 2018, the AFP attempted on numerous times to arrange through the offender's legal practitioners an understanding of the evidence he could provide in an induced statement. However, this information was not provided to the AFP. To attempt to afford him the opportunity to assist, officers travelled from Melbourne, Victoria to Kariong near Gosford in attempts to progress the possibility of him assisting by an induced statement to progress investigation. On 29 January 2019, the officers attended the correctional centre and met with him. They showed him a series of ten photographs of suspects. He provided general information in relation to some of the ten images but was unwilling to provide any specific information as he wanted to speak to his legal practitioners before doing so. The general information provided was either information of such general nature that could not be actioned or was not a full and frank account of information he could provide.
15. He also provided general details, contained in the handwritten statement, an attached typed document provided to AFP officers on 30 January 2019, the details of which appeared below. On 30 January 2019, the officers again attended Kariong. He provided the handwritten document and a typed document. This provided information in relation to seven persons.
* Person one was already arrested by Victoria Police six months prior, the information was of no value.
* Person two was already a suspect in an AFP investigation. It was of little or no value.
* Person three was already a suspect in an AFP and foreign law enforcement investigation. At the point of the information being provided the person had been referred to foreign law enforcement authorities. It was not assessed as being the full extent of what he could have provided. He is believed to have used this person to procure children to commit child sex offences which he did not state in the statement he provided or on any other occasion.
* Person four, he was shown an image of that person on 29 January 2019. He provided the name of the person and stated that the person videoed child exploitation material. This was referred to a foreign enforcement agency. However, a video was located on an electronic device of the offender depicting person four, engaged in a sex act with a male child. The offender did not provide any information in relation to that person engaging in sex acts with children. The information was assessed as being of low value as it allowed the AFP to refer a known suspect to a foreign law enforcement agency but was not a full and frank account of the association with this person. After he provided this information, the police again attended on 30 January 2019 requesting assistance in relation to person four but he declined the request.
* Persons five, six and seven, the offender provided general details of three male persons in Vietnam who had information, but did not include specific details which could identify any of them. The information was assessed as being of no value.
1. In the statement of 30 January 2019, there was no reference to Joseph Donozo, the Philippine based male utilised by the offender to procure children. This withholding of information is said to provide insight into the lack of assistance provided by the offender when the opportunity to assist was facilitated.
2. The document then deals with the evaluation of assistance. There was the formal identification of the Vietnamese national referred to as person four which led to the commencement of an investigation in Vietnam into that person. The statement of 30 January 2019 is not assessed to be a full and frank account of information that could have bene provided in relation to persons one to seven, and, the examination of the electronic material seized during the course of the investigation and the chat conversations suggest that the offender had a more comprehensive relationship with some of the persons than suggested in his statement.
3. The method of grading of assistance is then described and the AFP records that the assistance provided by the offender is assessed to be of low value; reasons are given for it, being assessed so.
4. To ensure compliance with the provisions which allow the Court to view the victim impact statement in the Crown bundle I will announce at this point that upon each of the offences before the Court and which require the identification of appropriate sentences, the offender is convicted. I do not intend at this point to go through each of them in turn to identify them. I shall do so of course when it comes to the allocation of sentences which I find to be appropriate for each of the individual offences.
Victim Impact Statements
1. I dealt with the obligation to convict the offender of the charges and now turn to the victim impact statements. I have read them and I would make clear that I do not take these into account in aggravation of the offender's conduct or the sentences which I find are appropriate for the individual offences of which he is now convicted, but this is a process that allows for the victims of these crimes to present to an offender the impact of the crimes upon them. I add that this is evidence that is before the Court not under oath and not tested by way of any cross-examination but each of these documents I must say fairly reflect what one might expect to have been experienced both at the time and subsequently by the victim of the misconduct there described.
2. I will not refer to these victims by their names but by their initials.
3. The first is a person with the initials A.G. I have been assisted by a typewritten presentation behind each of the handwritten victim impact statements, including this first one.
4. This young person writes of nervousness when photographs were first taken and afterward being happy because of the reward in the form of money and t-shirts that were given to him. His last experience with the offender was in 2015. He speaks of the participation of Donozo photographing, the provision of money, and the lack of any further contact of communication with the offender. He speaks of now being happy. He was happy with receiving the money but now that he does not have money, such as was provided by the offender, he continuous to be happy but wants the offender to be in prison. He feels sorrow for having been a participant in these events but does not express any shame of himself.
5. Thus, the impact upon him would appear according to those representations to be at least managed not leaving him of any sequelae that might see him permanently psychologically damaged.
6. The next person is with the name and identified by the initials C.E. This person feels bad for the things he has done. He feels shame for responding as he did. He has bad experiences of relationships as a consequence of the impact of this conduct upon him. He felt rich from the money that was given to him, reflecting the entirely different economic circumstances between his country and ours. He still has money as he writes because he is doing things the right way. He realises that what he participated in was wrong. He too would like to see the offender imprisoned.
7. J.T.A. writes of the photographs and the abuse, the provision of clothes, and what he said was a painful experience that he underwent. That is not part of the material upon which sentence is to be determined and I put that particular aspect to one side. Although it is not expressed, there is the implication of some conduct beyond what I am to deal with. I do not take that into account. He last met the offender in 2017. He speaks of the money that he was provided. He is grateful that the offender is imprisoned.
8. J.C.M. speaks of not thinking that it was anything significant when these events were occurring to him. He was influenced easily and returned for these things to occur repeatedly. He speaks of the photographing and photographs taken with the person Donozo, identified as Joey. They last were in contact in 2015. He is happier to be earning money through his job, although he acknowledges he was happy when he received money for the participation in these events. He was 11 years old when these things first began. He knows now the difference between right and wrong and hopes that this conduct will not be repeated.
9. J.V.T. writes of being lured into this activity by the money and he is fearful of shame if he meets someone who might know him from these events. He first met the offender in 2017. He was asked to go to the offender's place to entertain him. He was happy because he was given money. His mother wondered why he had so much money and he told her what was occurring and this caused her to be angry. He speaks of the difference now that the offender is not about and he is happy that the offender cannot deceive him anymore. He expresses gratitude for the offender's capture.
10. J.E.P. speaks of his nervousness when these events were unfolding, the impact upon his confidence. He is not ashamed of what he experienced but he has regrets. He was 11 when he met the offender and Donozo. He speaks positively of the offender's incarceration. I will not use the term that he has used in his document. He appears to miss the money that he was receiving for this behaviour and writes of being easily deceived by the offer of money; that does not impact anymore.
11. K.H.R.E. writes of being annoyed when he was photographed and used. He felt shame and fear because others might see the pictures. He was not mistaken about that anxiety. He is embarrassed because pictures were shown to others. He met the offender around 2016 or 2017. He first received "350" in payment for his body. When the offender was around, he said he thought he wasted more time because he had a lot of things to do for the offender. He expresses his gratitude for having the offender in custody.
12. K.O.O. speaks of being asked to remove his t-shirt, shorts and underwear. He was not interested in returning because the offender told his two companions "do oral sex". The last time he met the offender was in 2015. He was contacted by Donozo and taken to the offender's place. There, the offender took a photo of him. He took a video, asked him to remove all of his clothes. He gave him a t-shirt and underwear and performed oral sex on him. He also writes of not having the money that was once provided by the offender, which came to him because of the conduct in which he participated. Things are better now because he does not have to embarrass himself. Now he recognises the benefit of earning money through work.
13. There is another victim impact statement. It is from a person with the same initials but with a different given name, I shall refer to this person as Kl.O.O. This person writes of shame in front of his neighbours and his family about the things he did and which caused problems for his family in the long term. He is now no longer afraid to go out of the house or to other places. He last met the offender and Donozo in 2017. He was given a small amount of money and asked to go home after they had finished "hanging out". That was the last time. The first time he went to the offender's place photos were taken of him. He was interested in the money for the things it could buy. Shortly after these events, he was afraid to go out. He has apparently resolved those difficulties.
14. Finally L.A.N. recognises the wrongfulness of what occurred to him because of the abuse of him and other children. He was initially ashamed to go out because he was afraid of being talked about. He suffered embarrassment and transferred schools. The sequelae caused his family to suffer expense. He speaks of his life being "okay" before these events but when people learned of the abuse he suffered, people no longer spoke to him and he still, at the time of this document, does not go out because of his sense of shame.
Submissions
1. The Crown provided the first Crown submissions written on 26 February 2021. They deal with the assessment of objective seriousness, describing each of the offences. The Crown concedes there was no evidence of violence, threats or intimidation or the use of drugs or alcohol but points to the vulnerability of the children, induced to participate through more subtle means. They were deceived, tricked or manipulated into attending the offender's premises and received payment at the end of the abuse.
2. The offender asked Donozo to find boys for him. They would be photographed in Cebu under the pretence of a modelling shoot and then posted on Facebook where the offender expressed his preference. This is drawn from the agreed statement of facts. These are the submissions made by the Crown in reply to the evidence given by the offender.
3. The Crown points to the payment of money to Donozo each time he brought children to the offender. The Crown points to victims 14, 15, 16, 17 and 18 being abused at the same time after being told to stand in line. They were told to lie on the bed naked and watch the others as they were abused. The Crown summarises the description of each of the offences against the evidence that was given by the offender. I do not need to provide any further analysis of that, my consideration of the evidence given by the offender and upon which I have already made some comment.
4. The Crown points to the denial of masturbation or ejaculation which stands in contrast to the agreed statement of fact and I have already dealt with the risk of embarrassment to counsel and his instructing solicitor dealt with in the course of the hearing. The proposition that he denies masturbation or ejaculation is the Crown says to be rejected and I accept that submission. There is no independent evidence that the offender could not ejaculate. This all falls from the offender. There is evidence available from one of the child victims that the offender did ejaculate.
5. The Crown points to the terms of the discussion with 'Maliboy Hornbag' including reference to the payment of money, the amount of which would be reflected in the nature of the performance upon which the boy or boys might engage. I agree with the Crown's submission that the offences are objectively serious; I have already dealt with each of them as to where they should fit on the scale of objective seriousness against the range of misconduct that might be captured by the legislation providing for these offences.
6. Reliance was placed upon the DPP v Beattie (2017) NSWCCA 301 to which I have already referred in another context. The offender did refer to that and sought to draw contrast between the facts of that case and what is before this Court and urges the view that the conduct with which he is charged falls at a lower level of objective seriousness.
7. The Crown points out that in Beattie ibid, the offender was in Australia directing conduct over the Internet. This offender was directing conduct and physically involved in the abuse which occurred in some instances in a group setting. I agree with the Crown submission that it is not appropriate to deal with child pornography charges as a group. They must be considered in the different contexts of the State and Commonwealth legislation. The Crown reminds me that with regard to the photographs, it was noted in R v Porte [2015] NSWCCA 174 at [77] that category one material is not automatically to be seen as mild in content and might itself involve significant gravity.
8. The Crown summarises the description of the conduct in the relevant counts, including instances of photographs of a child masturbating. The Court has already made reference to the photographs taken by the offender; the age of the children is said for some offending to be under 12. Many of the children ages are unknown. He pleaded guilty to a range of ten to 14 years. It is known that the victims of counts 7 to 23 were aged 11.
9. The submissions continue with reference to specific propositions advanced by the offender; it is more appropriate at this point to come back to the submissions in reply after I have made reference to what the offender had to say. Before I do that, I will turn to the Crown's primary submissions included in exhibit A.
10. The Crown urges a view that the offending should be seen to be very serious objectively for the reasons that the overall offending covers a constellation of serious child sexual offences and child pornography offences, involving seven distinct and discreet forms of offending; the maximum penalties are significant; the offending was not spontaneous or isolated and was over an extended period of time; substantial periods of imprisonment with non-parole period are required.
11. The nature of the individual offences, though, must be assessed; I believe I have been able to complete that task; a sentence appropriate to the individual offences has been identified, against what I found to be the level of objective seriousness relevant to each of them. Then one must settle upon an aggregate sentence that reflects the totality of this abhorrent behaviour, both for the State offences within the context of those provisions and then with regard to the Federal offences within the context of the provisions creating them. Thus, I agree with the submission the Crown makes that an overall sentence for the State offences partly accumulated with the sentence for the Federal offences will involve significant periods of imprisonment and non-parole periods.
12. The Crown reminds me of the legislative sentencing principles in Part 1B, Crimes Act 1914 (C'th). The sentence identified must of a severity appropriate in all the circumstances to the offence, bearing in mind also the need for adequate punishment. These are provisions of course relevant to the federal offences. The Crown has assisted with annexure A to this document, identifying the approach one must take to the matters that are relevant to inform the decision. The Crown reminds me of s 21A (2) and s 21A (3), Crimes (Sentencing Procedure) Act 1999 and the terms of s 3A of that Act.
13. The Child Exploitation Tracking System scale is summarised; the facts relevant to each of the offences are summarised, not taking that into account, including the content of the folders that are relevant to count 2 of series H# 956 and count 20. I am reminded that the total number of items of child abuse material in his possession, featuring all five categories in two different storage devices, the methodical storage of the items, and the labels given to the folders where the images were to be found.
14. With regard to the transmission of pornographic material, sequence 15, sequence 16, sequence 17 and sequence 18 and the instance of him causing child pornography to be transmitted to himself sequence 19, the facts and the sequences are summarised. He caused one image of two male children between 12 and 14 to be sent to him. Afterwards, he asked for a picture of a child's genitals.
15. There were four occasions when the offender transmitted pornography to 'Maliboy Hornbag', using 'Brosix'. This material is to be assessed in the light of the messages exchanged between the offender and 'Maliboy Hornbag', including commentary as to the liking or the perception of the children in their location where photographed, the reference to a smaller one as a "sucker", where images should be uploaded and held in "the cloud" so as not to be brought back into the country in any physical form.
16. The Crown refers to the production of child pornography in sequences one to 14 and sequence 22. Sequences one through to ten occurred in the Philippines, 11 and 12 and 13 in Vietnam and 22 and 14 in the Philippines. The table includes the number of victims involved in each instance, their ages and the categories. There is no need I would like to say in the analysis of facts are already provided to proceed through what the Crown has replicated in this document with regard to those matters.
17. I am reminded that the sentencing principles specific to child pornography offences, involving immediate imprisonment that is ordinarily warranted. The factors that inform the assessment of the objective seriousness include the number of items and images and their nature and content, particularly the age of the children and the gravity of the sexual activity depicted.
18. The Crown reminds me of what is there contained in those various recordings and images. There is no evidence the Crown concedes that the offender was selling or proposed to sell the images, although he did clearly transmit some of the material. On balance, the Crown concedes, it appears this was for personal use albeit with some limited dissemination to another. There is no evidence that he would profit from the offences. The number of the children victimised is significant. The conduct involved personal grooming of victims or payment to others to groom the victims. The conduct was prolific and prolonged. The period of time he held the pornographic material is discussed.
19. The importance of general deterrence is asserted. I agree with that submission. Lesser weight is given to an offender's prior good character in a case such as this. The nature of this misconduct, occurring on an international level with apparent increased prevalence is a matter that cannot be overlooked. There is difficulty in detecting this type of misconduct with the evolution of technology, a matter brought into account, and production and transmission facilitates this abhorrent market and the continued corruption and exploitation of children. Protection of the children from such behaviour is important.
20. This is, I agree, is not a victimless crime. These children bear the ignominy of having suffered the abuse, having had images recorded of them, in some instances to find their way into a more general market. These images can be stored anywhere and published anywhere in the world for many years and each time the victims are re-victimized by such recurrence.
21. The Crown points to the fact that the offender directly paid the children for the creation of this pornography. There is authority for the proposition that it should be presumed that child victims will suffer harm, including long term psychological harm. I refer to R v Clarkson [2011] 32 VR 361 for that proposition; that is also consistent I might say with what is known generally from the jurisprudence that has evolved in respect of child sex offences over the last decade at least.
22. His production in the child pornography does connect him more closely with the market as an active participant; he is no mere passive participant and I brought that into account. The Crown provides further submissions and analysis of the offences charged in which the offender engaged in sexual intercourse, performing fellatio, and refers to the background of those offences to which I have already referred. Again, I do not need to rehearse the material replicated in this part of this document. I have already dealt with this in the analysis of the facts.
23. Turning to s 16A(2) Crimes Act 1914 (Cth), I have taken into account the nature and circumstances of each of the offences. I have taken into account the maximum penalty. I have taken into account the role of the offender in each of the offences. I have taken into account that this forms a course of conduct, with a series of criminal acts of the same or similar character. I have considered the personal circumstances of the victims, all young from poor socioeconomic backgrounds, exploited by the offender.
24. I have taken into account the terms of the victim impact statements that were provided by each of the victims, summarised by the Crown in this document.
25. I am to take into account the extent to which the offender has shown contrition. The Crown challenges a finding that he has demonstrated contrition or remorse; for reasons to which I will come I agree with that submission.
26. The extent to which he has cooperated with law enforcement agencies is limited to his plea of guilty and acknowledgement of the agreed statement of facts. The document marked exhibit B does not allow any finding beyond that, taking into account his guilty plea.
27. General deterrence is a significant matter that must be given appropriate weight as I have said. So too the need for personal deterrence in this case, in light of the findings I will provide shortly. There must be adequate punishment for this behaviour. I have taken into account his age, his antecedents and his background. I agree with the submission that limited weight should be given to self-serving statements to the Probation and Parole officers and to his psychiatrists in light of the evidence and my impression of his evidence given before me.
28. The caution urged in R v Qutami [2001] NSWCCA 353 by Smart AJ and later restated in Imbornone v R [2017] NSWCCA 144 by Wilson J in respect of unsworn statements is not of significance in this case since the offender did give evidence and face cross-examination.
29. The Crown addresses the representations by Dr Nielssen. In light of the way the matter unfolded, there is no need for me to make further comment upon that at this point.
30. The offending occurred when the offender was between the age of 56 and 61 years. He is now aged 64. As I have earlier noted, good character has to be given limited weight in this case, bearing in mind, the length of time over which these offences occurred and in circumstances where he was once employed as a Catholic priest. For reasons that I will come to, I am not satisfied that there are good prospects of rehabilitation. There is no evidence of hardship to the offender's family, although I do bring to account that his mother of very advanced years passed away while he was incarcerated and he was unable to attend her funeral, which is a more expansive view of the concept of hardship contemplated in s 16A(2)(p) Crimes Act 1914 which I acknowledge.
31. I am reminded of the need to provide an appropriate period of custody and of the authorities dealing with the proportion of custody that should be employed in Federal offences reflected, for example Hilli v R, Jones v R [2010] HCA 45. I agree with the Crown's submission that a significant part of the sentence I am about to impose should be served in custody. I am reminded of the approach to be taken with regard to sentences imposed in other cases.
32. The Crown has reminded me of the considerations required by the Crimes (Sentencing Procedure) Act 1999 in respect of the New South Wales offences. The Crown acknowledges the effect of s 21A(3)(f) and the offender's otherwise good character, subject to the comment that I have already made about the length of time over which this offending occurred and the limit to the weight to be given to that aspect.
33. The Crown reminds me of s 21A(3)(h) but I do not find that there are good prospects of rehabilitation; s 21A(3)(i), but I am not satisfied that the offender has shown genuine remorse; s 21A(3)(l) and I note the offender has agreed to the statement of facts, even with the disruption to that unfolded but was resolved in the course of his evidence before me.
34. S 21A(5A) of this Act applies to child sexual offences; it requires that good character or lack of previous convictions is not to be taken into account as a mitigating factor if the Court is satisfied that it was of assistance to the offender in the commission of the offence. On the material before me, I do not believe that I can come to a finding in those terms and accordingly, to the limited extent I have observed, good character should be brought to account.
35. I return to the Crown submissions in reply to the evidence given by the offender and the offender's submissions that were provided after the Crown had provided their initial preparation. I do not need to repeat what was said on the earlier occasion by the Crown in response to the offender's written submissions prepared by him as I noted earlier.
36. He urged the view that the offences should all be regarded as being towards the bottom end of the scale of objective seriousness with specific reference to the offences contrary to s 272.8(1) and 272.9(1) Criminal Code. There was no violence, no threats or intimidation, no sexual trickery, no use of drugs or alcohol, no penetrative sex by him upon the children, no request of the complainants to perform acts on him or each other, no taking of videos or photographs, although Donozo did take a few photographs. I reject that as contrary to the material before me. There was no relationship of authority over the victims; the denial of masturbation or ejaculation, a matter which I reject. He paid them money.
37. I do not agree with the view that the findings in this case should be that this misconduct is less than the seriousness of misconduct involved in the decision in Beattie ibid.
38. The offender concedes that actual children were used in the creation of material; clearly they were. The offender seeks to diminish the significance of the production, transmission, and importation and possession of the child pornography and child abuse material with reference to the scale and categories identified in the Child Exploitation Tracking System. The Crown correctly observes, that is not the only and final test of those matters, but is part of the analysis required, particularly in light of the nature of the photographs that were in fact taken and the videos recorded of these children.
39. The submissions made by the offender included that the images or videos produced, transmitted or imported, involved or portrayed no cruelty or harm of any kind to the children. The Crown challenges that; there were category 5 photos and videos as agreed in the statement of facts.
40. The offender submitted that the number of items involved in the production transmission and importation offences was at the lower end of the scale. He submitted that it was impossible to determine precisely how much of the entire material fell within the scope of the legislation and it was impossible to calculate the number of children involved. The Crown submits that should be rejected for the simple reason the number of images and videos in the possession of the offender were agreed and there was no evidence of repetition for which the offender contends.
41. The offender's purposes for obtaining the images were for his own use, not commercial gain or for posting on the Internet. The Crown submits in response that the offender gave evidence that he obtained the images for his own use, which made the case for the images the subject of the possession charge, and there is evidence that he did trade images of victim 17 with 'Maliboy Hornbag' with no regard to what that individual would do with the images. I have already dealt with the evidence he gave in respect to that. This also deals with the submissions made by the offender upon extended transmission.
42. The Crown does not cavil with the submission by the offender that payment was made to some but not all the children or that payment were made for any other item in the offender's possession. There is no evidence of that at least.
43. With regard to the assertion by the offender that apart from the small number of images produced by the offender, all the others were taken from a limited number of message ports and websites from the Internet, the Crown correctly points to the fact that there is no evidence of that and it should be discarded as an irrelevant consideration.
44. With the regard of planning, with the exception of the images in possession or downloaded from the Internet, the Crown correctly submits that the degree of planning must be considered in relation to each individual charge as addressed in the Crown's primary submissions. The production of the child pornography was planned and premeditated and the degree can be seen in the meticulous storage of the material found at his possession.
45. With regard to other matters raised by the offender, the Crown largely replicates what it has provided in the primary submissions made. The offender in his document, dealing with the circumstances of the victims, acknowledges their vulnerability with regard to age and their relatively impoverished circumstances and has expressed the shame and remorse for having exploited them. I shall deal with that shortly.
46. When dealing with the injury, loss and damage, he refers to the absence of any physical harm or pain. This appears to be the case. Dealing with contrition, the offender submits that he has shown an exemplary level of contrition by way of his letters of apology to which I have referred and his participation in the community life within the prison system. I shall deal with that shortly.
47. His plea of guilty is advanced and that is noted. His co-operation with law enforcement is noted. I have already dealt with the letter of assistance. He urges that the utilitarian value of his plea is greater in this case than in Beattie ibid. I propose to allow a discount of 25% as I have indicated to each of the sentences I have identified as appropriate for the offences, the individual crimes. I accept that this has avoided the need to bring upwards from ten witnesses from the Philippines to Australia, saving a great deal of expense, and had he wished to do so, he could have put the Crown to proof on all of these matters, although upon the material I have it would seem to me to be a forlorn hope. The Crown case was exceptionally strong.
48. I do not agree that the DPP's case was problematic with contradictions. The images themselves are replete with circumstances that would provide compelling support for the prosecution case upon these charges. I do not agree that the offender is not in need of specific deterrence.
49. The offender concedes the aspect of general deterrence and describes the nature of his custody which has contributed to the sentencing aim sought by that consideration. I am not entirely comfortable with that submission. He has not been in maximum security and protective custody for two and a half years, and as I have noted, he has achieved some progress in custody with the opportunities for work and his interactions with other inmates which he as represented to the Court.
50. He accepts that a substantial period of custody with appropriate discounts is required in this case. He relies upon remorse, the relationship between his background and his offending, relying upon the reports of Dr Olav Nielssen. I am not satisfied that there is such a connection that will mitigate the penalty he must suffer.
51. He writes of his so called compulsive addiction. Again, I shall deal with that in the commentary I am about to address. He has suffered considerable loss and I accept that, notwithstanding his remarks about his mother in his formative years, he did come close to her and it would have been a significant loss for him to not to be able to attend her funeral when she died during his present custody.
52. His loss of opportunity to practice law or teach or participate in life within his church are no doubt significant losses to him but losses for which he must take responsibility because of his misconduct. Those aspects do not mitigate the penalty I am about to impose.
53. He refers to his physical health. I have already addressed that. He refers here to having developed in 2020 De Quervain syndrome in his right arm as a result of excessive handwriting, requiring physiotherapy and splinting. I do not have anything before me regarding that, apart from the submission. There is no suggestion his standing in the community aided his offending and I believe that is so. He relies upon his apology to the Court, reflecting he said highly positive prospects of rehabilitation. He then refers to the New South Wales Bureau of Crime statistics and Research with regard to custody based programs.
54. It is urged that the interest of the community in ensuring the offender is fully rehabilitated would be better served by releasing him from custody earlier than later. The offender would welcome an order pursuant to s 16A(2AAA) Crimes Act 1914 to undertake rehabilitation in the form of the 'Men Taking Responsibility' course to which I earlier referred. This will require a period of parole of four to five years to allow him to achieve that. I have noted that. This might well be the result of the sentence today but that is not the reason I have chosen the structure of the sentence that I have.
55. I am reminded of s 53 and s 55 Crimes (Sentencing Procedure) Act 1999, dealing with the questions of concurrence, accumulation, totality and aggregation and what matters ought to be brought to account. He has reminded me of s 47 of the Act and s 44 and made submissions in relation to those, and finally refers to a raft of authority arising from child sex crimes in New South Wales, indicating examples for non-parole periods.
56. His counsel embraced at least notionally the written submissions and added to them with his oral submissions when the matter was before me on 1 March this year. He was succinct but relevant I might say and largely advanced the more positive aspects of the written submissions provided by the offender.
57. He pleaded guilty at the first available opportunity for which he should have appropriate if not substantial credit. He saved the money and expense and additional trauma that would have been involved in having these young boys brought to court. His absence of antecedent offences is noted. He reminded me of the evidence of his diligent work for the less fortunate, his achievements, and his level of intelligence. He can learn from his mistakes, all of which will inform the risk of re-offence.
58. I am reminded of his achievements in custody, his participation in appropriate courses. I am reminded of the evidence that he is under stringent conditions in gaol that must be brought to account. He spoke of the spectacular fall from grace which the offender accepts and from which he does not hide. It is submitted that he has done all he can to rehabilitate. He knows that he has forfeited his opportunities for professional life and pastoral life but he will continue to make contribution such as he might, notwithstanding, those lost opportunities.
59. He then made submissions with regard to the specific offences. The Crown responded with submissions as to the limited weight to be given to prior good character. The only evidence upon this is from the offender, no evidence that he has support in the community. As to his level of intelligence, there was no doubt the Crown submitted, that he was fully aware of the consequences of his wrongdoing if detected. Little or no weight should be given to the evidence of Dr Nielssen in the reports provided by him. All of the representations he offered depended entirely upon the offender and his veracity. The offending was over a significant period of time.
60. The Crown acknowledged there was no actual comparable case to the circumstances of this matter from which guidance might be obtained in the assessment of sentence.
61. Mr Radojev spoke in reply to the point of assistance. He advanced the argument that no-one returned to the offender notwithstanding, his letter to the authorities, and that was not his fault. He ought to be viewed as having offered ongoing assistance that was not taken up. The Crown reminded me of the content of the letter from the AFP to which I have already referred.
Findings
1. Upon consideration of all this material and the submissions that were made, I make the following findings;
2. The explanation from the offender to explain his crimes attracts little weight. It is clear that he embarked upon his overseas venture with planning and care, to avoid detection, maintaining control over the costs to be incurred in having the children available to him. His planning and organisation included acquisition of premises to allow full reign for his sexual adventures with these children with limited risk of exposure to others who might see him attending the properties in the company of the children or in the activities upon which he wished to engage within them.
3. The content of the communication summarised earlier and the descriptions given to his association with the victims are replete with basic facts from which the inference to be drawn is that he groomed each of them, each of the children, into the activities for which he wanted them.
4. I do not accept that the assertive nature of his mother in his formative years, which the offender alleges, provides an explanation for or mitigates his moral culpability evident in this misconduct. I do not accept that his mother's attitudes or the bullying he said he suffered because he was less physically competent and more academically successful than his peers, explains the nature of his offending or the extent of it.
5. I accept the opinions of Dr Nielssen that the offender does not have a hoarding disorder but that he probably has an abnormal sexual interest described as homosexual paedophilia. I am not persuaded that the offender is genuinely contrite.
6. With the opportunity to observe his evidence and upon consideration of the measured responses throughout the history of the investigation by those there to assist him, I have come to the view that his evidence must be approached with a significant measure of circumspection. He has demonstrated capacity for the manipulation of those to whom he spoke, including in the course of his evidence in which, from time to time, he sought to deflect the focus of the questions put to him and took opportunities when presented to provide discursive answers, amplifying repetitive propositions upon which he would rely. By way of example, I refer to his repeated use of the term 'compulsion' given to explain why his better nature was overborn leading to his offences.
7. I attribute limited weight to the qualified offer of assistance. It is questionable as to whether it was not motivated by the offender's desire to assist authorities or was more to improve his position in the assessment of sentence. I find that the offender has the capacity for manipulation, demonstrated when he chose carefully the amount of information he gave to those called upon to assist him, including Dr Nielssen for his first report, and the evidence he gave, attempting to distance himself from the agreed statement of facts at the expense of his lawyers, a course abandoned in due course when I raised the risk of embarrassment to his counsel in light of evidence he gave regarding his lack of sexual function, in contrast to the agreed statement of facts.
8. I do not accept his evidence that he could not achieve erection or ejaculation.
9. I find that his repeated expressions of remorse were more concerned with his predicament than the welfare of his victims. Against his obvious intellect, academic achievements and life experiences, it beggars belief that he would not appreciate the wrongfulness of his conduct when he was so engaged and did not appreciate the extent of the harm to his victims until he read their statements, describing the impact of his crimes.
10. The opinion given by Dr Nielssen that there was a low risk of reoffending must be qualified. Moreover, I find that the distinction between an offender, who is a "current" offender, into which this category this offender was said to be, in contrast to an offender who persists even after interdiction by law enforcement, is one of questionable value in the circumstances where the offender continued in his misbehaviour, notwithstanding, the opportunity of help from Dr Canaris and others in the past.
11. Dr Nielssen's view that any rational person would not wish to commit further offences against the risk of suffering once more the "trauma" of arrest, such as the offender said he experienced, and subsequent prosecution, does not persuade me.
12. Notwithstanding, the offender's evidence that he will not reoffend and now has control of his tendencies, I find that the level of his actual interest demonstrated by the offender, his skill controlling information assembled for these proceedings, the range of his misconduct, the time over which it was perpetrated and his willingness to travel to other countries in pursuit of his aims, do not allow a finding that there are more than modest if any, prospects of rehabilitation.
13. I find support in this in the evidence given regarding his response to the arrest in Sydney Airport and the claimed "trauma" from the shame he said he suffered, which he said was not the most shameful point in his life, but it was when he felt the most ashamed. I do not accept that the memory of that experience caused resurgence from his subconscious of sexual images which in turn lead him to thoughts of his victims and what he has done.
14. I note that his evidence, to which I referred earlier, was expressed in the reverse to that proposition, that the recall of sexual images, drawing upon what he had engaged upon in the past, brought forth the sense of trauma experienced when he was arrested at Sydney Airport and taken away in handcuffs. My memory is that his evidence and the proposition advanced on his behalf initially were as I expressed a moment ago, that the memory of the experience at the Sydney Airport caused resurgence from his subconscious of sexual images which in turn lead him to thoughts of his victims and what he has done. Either way, I do not accept the proposition that he was traumatised to the extent that he has represented to Dr Nielssen and offered to this Court. To find otherwise would be to ignore the selective provision of information to Dr Nielssen revealed in the first report, upon which he was intending to rely in the proceedings.
15. I find that the offences were motivated by his sexual interest in boys at their pubescent stages of life and he was willing to exploit them in their limited economic circumstances in their homeland in the pursuit of his goals. No other finding could be made in light of the exchanges with 'Maliboy Hornbag', the planning and sophistication shown in the arrangements he discussed in those exchanges, including control of the rewards he would offer these children, the selection of premises that mitigated the risk of discovery and the use of others in those locations to procure and facilitate his access to these children.
16. I have considered the offender's evidence regarding custodial arrangements. There was nothing to gainsay the descriptions given by the offender regarding these but I am not persuaded upon his evidence overall upon this topic that they are such as to warrant anything other than limited weight in the assessment of the punishment he is about to face.
17. I accept that he has compromised health that led to the cardiac surgery and in light of his age this must be a fact brought to account. I have, accordingly, identified an appropriate custodial component of the combined sentences with a significant period on parole during which I would expect he will have no difficulty re-socialising and re-assimilating in the community.
18. Clearly the lines provided in s 5 Crimes (Sentencing Procedure) Act 1999 and in s 17A Crimes Act 1914 were crossed by this behaviour, and only imprisonment will suffice. All of the purposes of sentencing expressed at common law and specified for example in s 3A of the New South Wales Act and for the purposes of the Commonwealth offences are engaged, but notably are the aspects of general deterrence, punishment, denunciation, recognition of harm, specific deterrence and protection.
The Sentences
1. I have applied a discount of 25% to each of the sentences that I have identified for these offences, upon the synthesis of objective and subjective material that has been provided to me. In some instances, the sentences have been rounded down to years and months to obviate the need to express them in terms of years, months and days. I shall take each of these offences in turn, it is going to take some little time and I will go slowly.
2. For the offence H# 445 sequence 1, the intentional importation of prohibited tier 2 goods, contrary to s 233BAB(5) Customs Act 1901 (Cth), I identify a sentence of 2 years and 3 months.
3. For the offence H# 956 sequence 2, possession of child abuse material, s 91A(2) Crimes Act 1900, I specify an indicative sentence of 3 years 4 months.
4. For the offences of producing child pornography outside of Australia, s 27.5(1), Criminal Code 1995 (Cth)
* Sequence 1, 2 years 7 months;
* Sequence 2, 3 years 3 months;
* Sequence 3, 3 years 3 months;
* Sequence 4, 2 years 7 months;
* Sequence 5, 3 years 3 months;
* Sequence 6, 2 years 7 months;
* Sequence 7, 3 years 3 months;
* Sequence 8, 3 years 3 months;
* Sequence 9, 2 years 7 months;
* Sequence 10, 3 years 3 months;
* Sequence 11, 2 years 7 months;
* Sequence 12, 2 years 7 months;
* Sequence 13, 3 years 3 months;
* Sequence 22, 3 years 3 months;
* Sequence 14, 2 years 7 months.
1. For the offences sequences 15 to 18, using a carriage service to transmit child pornography, s 474.19(1) Criminal Code 1995 (Cth),
* Sequence 15, 2 years 3 months;
* Sequence 16, 2 years 3 months;
* Sequence 17, 2 years 3 months;
* Sequence 18, 2 years 7 months.
1. Sequence 19, using a carriage service to cause child pornography to be transmitted to himself, s 474.19(1) Criminal Code 1995 (Cth), 2 years 3 months.
2. Sequence 20, possess child abuse material, s 91A(2) Crimes Act 1900, 3 years.
3. Sequences 23 to 28, engaging in sexual intercourse with a child outside of Australia, s 272.8(1) Criminal Code 1995 (Cth),
* Sequence 23, 4 years;
* Sequence 24, 4 years;
* Sequence 25, 4 years;
* Sequence 26, 4 years;
* Sequence 27, 4 years;
* Sequence 28, 4 years.
1. Sequences 29 to 31, engage in sexual activity other than sexual intercourse with a child, outside of Australia, s 272.9(1) Criminal Code 1995 (Cth),
* Sequence 29, 3 years;
* Sequence 30, 3 years;
* Sequence 31, 2 years 3 months.
1. In relation to the New South Wales offences, sequence H# 956/2 and sequence 20, I specify an aggregate sentence. The aggregate sentence is overall one of 4 years and 3 months, including the non-parole period of 3 years and 2 months which I have specified. Thus the offender is sentenced to a non-parole period of imprisonment of 3 years and 2 months from 6 October 2018 to expire on 5 December 2021 with the period during which he shall be eligible for parole for those offences to expire on 5 January 2023.
2. For the Commonwealth offences, I specify an aggregate sentence of 17 years to commence on 6 October 2020, including a non-parole period of 12 years. Thus the order I make in respect of that sentence is that the offender is sentenced to a non-parole period of imprisonment of 12 years, commencing on 6 October 2020 and that will expire on 5 October 2032. The period during which he shall be eligible for parole will expire on 5 October 2037.
3. Mr Hansen, the sentences I've imposed, I've identified each of the indicative sentences for the individual offences. I don't intend to proceed through each of those again. A copy of this document, my orders has been provided to your solicitor here today and he can discuss those with you in their detail. But in relation to the State offences and this is the important aspect of the matter for you, there's an aggregate sentence of 4 years and 3 months from 6 October 2018 to expire on 5 January 2023. The non-parole period for that sentence is 3 years and 2 months to expire on 5 December 2021.
4. The Commonwealth offences, I've specified an aggregate sentence of 17 years from 6 October 2020, to expire on 5 October 2037, which includes a non-parole period of 12 years which will expire on 5 October 2032. So the custodial component of your sentence extends from when you came into custody on 6 October 2018 to 5 October 2032. That's a period of 14 years and thereafter, there is a parole period of 5 years to expire on 5 October 2037. The period, during which you will be eligible for parole upon the combination of those two sentences, I've dealt with upon the basis of your age and that you are already at that stage of your life where impaired health is beginning to afflict you; there can be no doubt that as your years advance that will continue to occur.
5. The opportunity for rehabilitation and reassimilation in the community should be adequately addressed I think, in the period of five years that you'll have available to you, at that point in your life.
6. I make the forfeiture order in the terms of the document filed in court today and I shall affix today's date which is 4 June 2021 and sign the document. My associate can seal the document forthwith.
7. I'll place the Child Protection Register documents on the Court file. I note the registered document is placed on the Court file.
8. I note for the purposes of these proceedings that the sample exhibit book has been returned to the Crown today. It's exhibit C. The Crown is to sign the exhibit register to make sure the Court has a record of its return.
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Endnotes
1. In documents tendered by the Crown there are mistakes in respect of the date of the offence charged in Sequence 19 which were continued in the course of my judgement, corrected when discovered in the review before publication.
2. The Commonwealth Crown Sentence Summary and the table provided in the Agreed Statement of Facts erroneously specified the date of this offence as 9 October 2016. The Court Attendance Notice specified the date of the offences as 3 January 2017, and the relevant text in the Agreed Statement of Facts specified 3 January 2018. In a subsequent summary prepared by the Crown the date is specified correctly as 3 January 2017 adopted in the table above.
3. The exchanges have been reproduced as they appear in the statement of facts.
4. The Agreed Statement of Facts incorrectly refers also to Sequence 16 at this point, drawn to my attention at a later point in the judgement by the Crown. Sequence 16 was dealt with earlier in the judgement.
5. See Footnotes 1 & 2.
6. Upon the Crown at this point of the judgement identifying a typing error in the Agreed Statement of Facts at paragraph [172] I noted that "Folder: \000D\pix/0" is the correct file path for this material in the device
7. This is day two of judgement.
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Decision last updated: 06 September 2021