R v JADD WILLIAM BROOKER [2024] SASC 84

Applicant: R Counsel: MS T COSTI - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: JADD WILLIAM BROOKER Counsel: MR P CHARMAN - Solicitor: TIM CLARKE & CO Hearing Date/s: 04/10/2023 to 06/10/2023 File No/s: SCCRM-22-14, SCCRM-22-15; SCCRM-22-16 B SUPREME COURT OF SOUTH AUSTRALIA (Criminal: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v BROOKER [2024] SASC 84 Judgment of the Honourable Justice Kimber 2 July 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE This is an application pursuant to s 57 of the Sentencing Act 2017 (SA) that the respondent be detained in custody until further order. The respondent pleaded guilty to 182 offences, each involving the sexual exploitation of a child. The respondent has been sentenced to imprisonment for 36 years with a non-parole period of 29 years. The respondent will not be eligible for parole before August 2049. Although the respondent has sought leave to appeal his sentence, even if the respondent is resentenced, he will not be eligible for parole for many years. The application was made on the basis that the respondent is unwilling to control his sexual instincts in the way defined in s 57, a position which was supported by the expert evidence. The respondent accepted that the applicant has established he is unwilling in the relevant sense and that the discretion to exercise the power under s 57 is enlivened. However, the respondent submitted that the discretion should not be exercised. The respondent submitted that the order would have no utility at the end of what would be an inevitably long sentence. Held, dismissing the application: 1. Although the respondent is unwilling to control his sexual instincts, it is not appropriate to grant the application. In circumstances where any release is not imminent, the respondent does not pose any risk to the community. 2. It will be open for the Attorney-General to make a fresh application closer to the time of any release. Sentencing Act 2017 (SA) s 57, referred to. R v Mountford [2019] SASC 16; R v Hoare [2017] SASC 7, applied. -- 1 of 63 -- R v O’Shea (1997) 94 A Crim R 560 ; R v England (2004) 87 SASR 411; Attorney General (SA) v Smallbone [2018] SASC 2; Wichen v The Queen (2021) 138 SASR 13, considered. -- 2 of 63 -- R v BROOKER [2024] SASC 84 Criminal: Application KIMBER J: 1 This is an application pursuant to s 57 of the Sentencing Act 2017 (SA) (the Act) that Mr Jadd William Brooker (the respondent) be detained in custody until further order. The application has been made by the Director of Public Prosecutions (the applicant) on the basis that the respondent is unwilling to control his sexual instincts.1 The application follows the respondent having entered guilty pleas to 182 offences, each offence involving sexual exploitation of a child. 2 Pursuant to s 57 of the Act, the respondent is unwilling ‘if there is a significant risk that [he] would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of [his] sexual instincts’. While whether the respondent is unwilling in the relevant sense is a matter for me and is a decision to be reached on the whole of the material before me, the respondent does not dispute the three expert opinions each of which confirms that the respondent is unwilling in the relevant sense. 3 Given the nature of the offences and the possible length of the sentence that might be imposed, the applicant and respondent both accepted that the application should be determined after sentence. On 23 December 2023, I imposed a head sentence of 36 years and a non-parole period of 29 years to commence on 26 August 2020. It follows that, currently at least, the respondent will not be eligible for parole until 25 August 2049. The respondent will not complete his head sentence until 25 August 2056. 4 On 12 April 2024, Mr Brooker filed a Notice of Appeal with respect to the sentence. The application for leave to appeal and the merits of the appeal will be heard by the Court of Appeal on 13 November 2024. I express no view about the merits of the appeal. I proceed on the basis that, if Mr Brooker is successful in his appeal and is resentenced, the offending, which is not disputed, means that it is inevitable that the sentence imposed will still be a very lengthy one. 5 These are my reasons for finding that the respondent is unwilling in the relevant sense but for declining to order that the respondent be detained in custody until further order. An overview of the offending 6 The respondent pleaded guilty to 182 offences across three Informations. The offences were as follows: 1 A submission that the respondent is incapable of controlling his sexual instincts was not consistent with the expert evidence and it is not necessary to consider that further. -- 3 of 63 -- [2024] SASC 84 Kimber J 2 1. Possessing Child Exploitation Material (four counts); 2. Aggravated Possessing Child Exploitation Material (four counts); 3. Producing Child Exploitation Material (two counts); 4. Aggravated Producing Child Exploitation Material (one count); 5. Dissemination of Child Exploitation Material (22 counts); 6. Aggravated Dissemination of Child Exploitation Material (23 counts); 7. Obtaining Access to Child Exploitation Material (six counts) 8. Aggravated Obtaining Access to Child Exploitation Material (eight counts); 9. Communicating for a Prurient Purpose with the Intention of Making a Child Amenable to a Sexual Activity (107 counts); and 10. Maintaining an Unlawful Sexual Relationship with a Child2 (Maintaining offences) (five counts). 7 As may be obvious, each offence involved the sexual exploitation of a child. The offences were committed over a period of about four and a half years between January 2016 and August 2020. The conduct the subject of each offence was not disputed. There was also a substantial amount of uncharged offending which was also not disputed. A summary of the offending is set out in my sentencing remarks, the relevant part of which is an annexure to this judgment. Putting aside offences which involved possession of child exploitation material, there were 96 separate victims. Of those victims, nine have been identified. As the sentencing remarks make clear, the offending was prolific and very serious. The proceedings 8 The respondent was committed to the District Court. On 14 January 2022, pursuant to s 57(2) of the Act, the respondent was remanded to the Supreme Court to be dealt with pursuant to s 57 of the Act. On 31 January 2022, a Judge of the Supreme Court ordered that two legally qualified medical practitioners provide reports pursuant to s 57(6) of the Act. Between 4 and 6 October 2023 I heard evidence and submissions relevant to the application and sentence. As set out earlier, I sentenced the respondent on 20 December 2023. The personal circumstances of the respondent 9 The personal circumstances of the respondent are detailed in the sentencing remarks. It is not necessary to repeat all of that detail. 2 Now Sexual Abuse of a Child. -- 4 of 63 -- [2024] SASC 84 Kimber J 3 10 The respondent is 42 years of age, having been born on 14 January 1982. The respondent has no relevant prior offending. 11 The respondent was the victim of sexual offending when he was a child. Commencing when he was about 13 years of age, the respondent engaged in sexual acts with adult males at a shopping centre on a regular basis. The respondent is also a long-term user of illicit drugs. That drug use began when the respondent was about 18 and the respondent has reported becoming addicted to the drug ice in about 2016. The respondent was diagnosed as HIV positive in 2017 and was prescribed medication. Some of the Maintaining offences committed by the respondent included sexual acts which were unprotected and were committed without any victim being told that the respondent was HIV positive. Fortunately, no victim became HIV positive. The material before me 12 The relevant issues in the application are: (1) whether I should find the respondent is unwilling in the relevant sense; (2) and, if so, whether I should exercise the discretion to make the order sought by the applicant. I must consider the whole of the material before me which includes the reports and evidence of three experts; the prosecution brief and the prosecution factual summary as amended during submissions. As there is no material dispute about the accuracy of the prosecution factual summary, I have relied upon that document and the factual findings in my sentencing remarks for the conduct the subject of each offence and any uncharged conduct by the respondent. The expert opinions 13 The respondent has been assessed by three experts, each of whom provided a report and gave evidence. Dr Nambiar is a consultant forensic psychiatrist and the Clinical Director of the Forensic Mental Health Service in South Australia based at James Nash House. The report of Dr Nambiar is dated 7 April 2022. Dr Haeney is a consultant forensic psychiatrist working at James Nash House. The report of Dr Haeney is dated 20 June 2022. Mr Balfour is a registered psychologist. The report of Mr Balfour is dated 30 June 2023. The three experts had access to detailed factual summaries provided by the prosecution and other material. The factual summaries were not disputed and I do not understand those summaries to have differed in any material way to the prosecution factual summary which was before me. Dr Nambiar and Dr Haeney also had access to affidavits of police which, among other things, detailed countless online communications with victims. Dr Nambiar and Dr Haeney also had access to affidavits of civilian witnesses, including some victims. That material is not disputed. Mr Balfour does not appear to have had access to the affidavit material. 14 The opinion of each expert is that the respondent is unwilling in the relevant sense. Given the offending of the respondent, I have no hesitation in accepting those opinions and making that finding. To the extent that there might be some differences in the opinions of the two forensic psychiatrists on the one hand and -- 5 of 63 -- [2024] SASC 84 Kimber J 4 Mr Balfour on the other, those differences are not material to whether the respondent is unwilling in the relevant sense nor to whether I should make the order sought by the applicant. Were it necessary to decide, I would prefer the opinions of the forensic psychiatrists where they differed to those of Mr Balfour. With respect to the issues in the application, there are no material differences in the opinions expressed by the forensic psychiatrists. I have no hesitation in accepting the opinions they have expressed. Dr Nambiar 15 Dr Nambiar interviewed the respondent for about two hours on 5 April 2022. In the opinion of Dr Nambiar, the risk currently posed by the respondent is ‘extremely high’.3 Having interviewed the respondent and having considered the material provided, Dr Nambiar used a risk assessment tool known as the ‘Risk for Sexual Violence Protocol’ (RSVP) for the purpose of determining whether the respondent is incapable of controlling, or unwilling to control, his sexual instincts. Dr Nambiar described the RSVP as a structured professional judgement instrument for the assessment and management of individuals considered to pose a risk of sexual offending, including sexual violence. It is a protocol widely used in forensic mental health settings particularly for more complex or concerning cases. In the opinion of Dr Nambiar, it is a useful tool for predicting serious sexual offending, violent offending, and serious offending (whether sexual or non-sexual). 16 Among other things, Dr Nambiar opined that the number of offences committed by the respondent suggests a constant preoccupation with sex with minors;4 that the respondent has demonstrated sexual deviation with the presence of multiple paraphilias;5 that the respondent demonstrated an extreme minimisation and failure to accept responsibility for his conduct and its consequences;6 that the respondent appears to have a disturbed appreciation of the severity of his offending, the impact it would have on victims and does not seem to understand the emotional and psychological power that he had over his victims, nor the inappropriate nature of his interactions with them in person and on communication devices;7 and that the respondent does not appear to have the ability to self-regulate and recognise that his sexual preference is abnormal and illegal.8 17 Dr Nambiar further opined that the respondent had exhibited a lack of empathy and remorse;9 had involved himself in a network which condoned sexual offending against minors, confirming an antisocial and deviant attitude that 3 T53. 4 Psychiatric Report of Dr Nambiar dated 7 April 2022, p 16. 5 Ibid p 17. 6 Ibid. 7 Ibid. 8 Ibid. 9 Ibid. -- 6 of 63 -- [2024] SASC 84 Kimber J 5 appears to have been present from a young age and has persisted.10 Dr Nambiar opined:11 Mr Brooker’s sexual preference for young, vulnerable males and various other paedophilic behaviours provide an appetite for motivation to offend. The ease of access to victims through the use of social media and mobile devices, continue to reinforce his appetite for deviant sexual behaviours. Despite Mr Brooker denying it now, the evidentiary material confirms a very strong preference for under aged sex and fulfilling a whole range of fantasies of a deviant nature. These included paedophilic, coprophilia, rape images and fantasies, viewing, filing and sharing underage erotic material and engaging in high-risk practices. Psychopathy is a specific form of a Personality Disorder. It is characterised by an arrogant and deceitful interpersonal style, deficient affective experiences, and impulsive and both exploitative and irresponsible behaviour. Further it includes entitlement, lack of empathy, lack of remorse, sensation seeking impulsivity. Mr Brooker can be considered a sexual predator, given the chronicity, frequency and intensity of his offending in multiple forms with multiple partners where he used his power over vulnerable victims. 18 In the opinion of Dr Nambiar, in order to make any significant change, the respondent requires significant psychological therapy in order to gain a degree of self-awareness and empathy for his victims.12 Dr Nambiar emphasised that treatment does not necessarily result in change and that re-evaluation after treatment was extremely important.13 Dr Nambiar also opined that it is not clear whether the respondent is treatable given his offending and attitudes. 19 Dr Nambiar described the treatment necessary in the following way:14 A There are two main treatments that would need to occur alongside each other. One is the psychological treatment and that is, well one that's offered in South Australia is the sexual behaviour rehabilitation program, which is offered in custody, but only available to individuals once they've been sentenced. That, alongside anti-libidinal treatment in order to reduce his sexual drive. Q So that treatment effectively acts to remove the drive by way of a medical restraint, in effect. A Yes. HIS HONOUR Q Does it remove it altogether or diminish it. A It diminishes it significantly. XN 10 Ibid. 11 Ibid p 19. 12 Ibid pp 20–21. 13 T53. 14 T32.29–T35.12. -- 7 of 63 -- [2024] SASC 84 Kimber J 6 Q Do people have to consent to take that medication. A Yes. Q The Sexual Behaviours Clinic course that's offered in the prisons, does that offer the type of treatment that would be appropriate in this case. A Yes. Q In general terms, what is that course. A It's approximately - I've never conducted it myself, but it's approximately 18 months; it's quite intense group therapy where an individual is initially assessed for the program, and criminogenic as well as personal factors are considered in terms of formulating why he offended and the motivation behind offending. There's then an engagement process where there's education about those issues, and then an individual has to actually do homework outside of the programs and bring that to the group. And there's also some one-to-one therapy with an individual therapist as well. At the end of that program, a person is then re-evaluated and a post-treatment assessment is made in terms of the various domains that are identified that he would've needed to have worked on, and how successful that engagement was, and whether there was any significant change. Q You observe in your report that it's unclear to you as to whether or not Mr Brooker - how enthusiastically he would engage in treatment. What caused you to express that opinion. A Look, I can only base it on the fact that right at the beginning, Mr Brooker obviously has been denying his offending until obviously, there's so much information now in evidence that he had to admit that he did; but he still has a very simplistic understanding about how he could put strategies in place to change. That is, 'I'm not going to fantasise about young boys anymore', when we know that that's one of his core fantasies and that's what drove him to offend in the first place. Q You also state that it's unclear whether he is, in fact, treatable. Is there a different emphasis in that - in finding. A In terms of that, there's the sexual orientation but there's also his personality style and the drivers in his personality. As I mentioned, he does demonstrate quite significant psychopathic traits; that makes it very difficult for him to change personalities and enduring quality, it doesn't change overnight. He may well have remorse because he's been caught but in terms of making those changes, it would take a significant amount of time for him to be able to do that. 20 When asked to comment on the respondent’s interviews with Mr Balfour more recently and whether they might suggest that the respondent is expressing greater victim empathy and understanding of the seriousness of his offending, Dr Nambiar opined that it was highly unlikely that the respondent has made significant positive change between being interviewed by him and being interviewed by Mr Balfour.15 In the opinion of Dr Nambiar, there would have to 15 T52. -- 8 of 63 -- [2024] SASC 84 Kimber J 7 be treatment and re-evaluation of the respondent before there could be confidence that there had been any meaningful change in the respondent.16 21 Dr Nambiar concluded in his report:17 In summary, Mr Brooker has a history of sexual offending that places him in the very high-risk category for future offending. If he were not apprehended, he would have continued to offend in this manner and the consequences for his victims and the community at large, were of an extreme nature. Mr Brooker is capable of controlling his sexual instincts, however, in the context of a sense of entitlement and extremely self-focused gratification, he has demonstrated an unwillingness to control his sexual instincts. He will require considerable therapy, incarcerated safely away from the community and at the end of that therapy will require reassessing as to whether he is then willing to control his sexual instincts. He states now that he no longer has an orientation towards young males. This statement is yet to be tested and should be reassessed in the context of how he conducts himself with regards to therapy at some point in the future. 22 During his evidence, Dr Nambiar confirmed that in reaching the opinion that the respondent was unwilling to control his sexual instincts, he had applied the meaning of unwilling set out in s 57 of the Act.18 Dr Haeney 23 Dr Haeney interviewed the respondent for about one hour and 45 minutes on 13 April 2022. Dr Haeney also applied the RSVP assessment tool.19 Dr Haeney also opined that the respondent had a distinct lack of empathy for his victims.20 Among the other opinions of Dr Haeney are that the offending of the respondent showed significant chronicity, spanning several years until his arrest;21 that the frequency of offending is one of the factors most reliably associated with recidivistic sexual offending;22 that while the respondent did not attempt to justify his offending or express attitudes that condoned it during interview, during the period of his offending there was clear evidence of deviant attitudes and cognitive distortions, such as justifying that he had engaged in similar behaviour as a teenager as that engaged in during the offending and that he was not harming those that he was offending against; that the respondent displayed a lack of empathy for his victims throughout his offending; and that the respondent displayed marked problems with self-awareness. In the opinion of Dr Haeney, even at interview, the respondent showed a tendency to blame his offending largely on substance misuse and to exhibit concerns largely for himself and his family.23 This is not to overlook that the respondent also reported some commitment to engaging in therapy in order 16 T29. 17 Psychiatric Report of Dr Nambiar dated 7 April 2022, pp 20–21. 18 T51.20. 19 Psychiatric Report of Dr Haeney dated 20 June 2022, p 19 [7.7]. 20 Ibid p 21 [7.12]. 21 Ibid p 20 [7.8]. 22 Ibid. 23 Ibid p 21 [7.12]. -- 9 of 63 -- [2024] SASC 84 Kimber J 8 to improve his understanding of his offending behaviour. In the opinion of Dr Haeney, the respondent does not meet the criteria for paedophilic disorder.24 24 As to treatment, Dr Haeney opined that it was too early to say whether the respondent will benefit from a therapeutic program likely to be provided in custody. Failure to benefit may arise from poor motivation, unwillingness or refusal to attend, or due to poor response to treatment despite adequate participation. Whether the respondent engages in, and benefits from, treatment will be, in the opinion of Dr Haeney, a crucial factor in his risk in the future upon any release. Dr Haeney opined that it was too early to say whether the respondent will benefit from treatment.25 Dr Haeney described the treatment that he believes to be necessary in the following way:26 The primary treatment would be psychological so the government runs the sexual behaviour clinic and that can occur within a prison custodial setting or in the community at Owenia House and that is an in-depth psychological treatment program that incorporates both individual and group therapist. There are additional treatments available such as antilibidinal medication, if a person choses to have medication to suppress their testosterone level in an effort to reduce their libido and sexual function. 25 Dr Haeney opined that it was difficult to forecast whether the respondent will be a risk on completion of any sentence. He said:27 Until [the respondent] has engaged in lengthy and in depth treatment, I believe a significant theoretical [sic] risk of reoffending remains, were he not incarcerated. In addition, upon release, some risk factors may be more problematic: for example, he may have increased difficulty in engaging in employment or in intimate relationships, given his offending history. 26 In his report, Dr Haeney concludes that:28 … I believe there is a significant risk of further offending currently, if he were given an opportunity to commit a relevant offence, although this would need reassessment after his period of imprisonment and/or therapy. Mr Balfour 27 Mr Balfour interviewed the respondent on two occasions. The first time was on 7 February 2023 for two hours and 15 minutes and then on 27 February 2023 for 30 minutes. 28 Mr Balfour opined that the respondent’s offending was about power and control;29 that the respondent exploited the sexual naivety and curiosity of developmentally curious boys to feel empowered;30 and used the power imbalance 24 Ibid p 22 [7.14]. 25 T80.30–32. 26 T68.10–19. 27 Psychiatric Report of Dr Haeney dated 20 June 2022, p 24 [7.20]. 28 Ibid. 29 Psychological Report of Mr Balfour dated 30 June 2023, p 16. 30 Ibid. -- 10 of 63 -- [2024] SASC 84 Kimber J 9 to his advantage.31 In Mr Balfour’s opinion, the respondent used grooming behaviour to make children amenable to exploitation.32 In the opinion of Mr Balfour, the respondent satisfies the DSM-V diagnostic criteria for homosexual paedophilic disorder of the non-exclusive type (i.e. – the respondent is also sexually attracted to adult males and not exclusively children).33 29 In the opinion of Mr Balfour, the respondent is in the high range of sexual recidivism and, without extensive rehabilitation, the respondent is an appreciable risk to children in the community.34 Dr Balfour described the current risk posed by the respondent as being ‘high’35 and opined there was no doubt that the respondent would continue to offend if given the opportunity.36 In the opinion of Mr Balfour, prognosis of the respondent to cease offending is poor. 30 In my view, the report of Mr Balfour and his evidence are consistent with Mr Balfour having some reluctance to apply the definition of unwilling set out in the Act. Nevertheless, Mr Balfour’s evidence is only consistent with the respondent being presently unwilling in the relevant sense.37 In the opinion of Mr Balfour, unwillingness in the relevant sense should be further assessed after completion of the Sexual Behaviour Clinic (SBC program) which is currently available in custody and ordinarily provided to prisoners nearing release. A brief outline of the submissions of the parties 31 The applicant submitted that the evidence only permits of a finding that the respondent is unwilling in the relevant sense. Given the paramount consideration must be to protect the safety of the community and the extent of the risk of reoffending, the applicant submitted the discretion should be exercised. The applicant recognised the length of the sentence may weigh against the exercise of the discretion but maintained that the making of the order was appropriate. 32 The respondent accepted that the applicant had established that he is unwilling in the relevant sense and that the power to make the order is enlivened. Nevertheless, the respondent submitted the discretion should not be exercised. The respondent submitted an order will have no utility until the end of what would inevitably be a long sentence. The respondent submitted that the community needs no protection until parole is granted or, if parole is not granted, until the end of the head sentence. The respondent submitted that if there is an appropriate time for the making of the order sought, it is not until the respondent has had the opportunity of treatment and at a time much closer to any release. 31 Ibid. 32 Ibid. 33 Ibid. 34 Ibid p 19. 35 T90. 36 T106. 37 T106. -- 11 of 63 -- [2024] SASC 84 Kimber J 10 The Act 33 As set out earlier, s 57 of the Act provides that a person is unwilling to control sexual instincts ‘if there is a significant risk that the person would, given the opportunity to commit a relevant offence, fail to exercise appropriate control of the person’s sexual instincts.’ Relevant offence means: relevant offence means— (a) an offence under section 48, 48A, 49, 50, 56, 58, 59, 63, 63A, 63B, 69 or 72 of the Criminal Law Consolidation Act 1935; or (b) an offence under section 23 of the Summary Offences Act 1953; or (c) an offence under a corresponding previous enactment substantially similar to an offence referred to in either of the preceding paragraphs; or (d) any other offence where the evidence indicates that the defendant may be incapable of controlling, or unwilling to control, the defendant's sexual instincts; or (e) an offence of failing to comply with a reporting obligation relating to reportable contact with a child without a reasonable excuse where the defendant is a registrable offender within the meaning of the Child Sex Offenders Registration Act 2006; 34 Sections 57(7)–(9), (12)–(13) provide: (7) The Supreme Court may order that a person to whom this section applies be detained in custody until further order if satisfied that the order is appropriate. (8) The paramount consideration of the Supreme Court in determining whether to make an order that a person to whom this section applies be detained in custody until further order must be to protect the safety of the community (whether as individuals or in general). (9) The Supreme Court must also take the following matters into consideration in determining whether to make an order that a person to whom this section applies be detained in custody until further order: (a) the reports of the medical practitioners (as directed and nominated under subsection (6)) provided to the Court; (b) any relevant evidence or representations that the person may desire to put to the Court; (c) any report required by the Court under section 61; (d) any other matter that the Court thinks relevant. … (12) If a person to whom this section applies has not been sentenced for a relevant offence, the Supreme Court will deal with the question of sentence at the same time as it deals with the question whether an order is to be made under this section and, if the Court -- 12 of 63 -- [2024] SASC 84 Kimber J 11 decides to make such an order, the order may be made in addition to, or instead of, a sentence of imprisonment. (13) If the detention is in addition to a sentence of imprisonment, the detention will commence on the expiration of the term of imprisonment, or of all terms of imprisonment, that the person is liable to serve. 35 If the order for detention is not made, the Act provides for a further application(s). Subsections (3) and (4) provide: (3) If a person has been convicted of a relevant offence, the Attorney-General may, while the person remains in prison serving a sentence of imprisonment, apply to the Supreme Court to have the person dealt with under this section. (4) The Attorney-General may make an application under subsection (3) in respect of a person serving a sentence of imprisonment whether or not an application to the Supreme Court to have the person dealt with under this section has previously been made (but, if a previous application has been made, a further application cannot be made more than 12 months before the person is eligible to apply for release on parole). Applicable principles 36 Detention orders, whether under s 57 or the previous s 23 of the Criminal Law (Sentencing) Act 1988 (SA), have a protective rather than a punitive purpose.38 37 As Nicholson J did in R v Mountford,39 I gratefully adopt as sufficient for present purposes, the analysis of the statutory scheme and applicable legal principles as set out by Hinton J in R v Hoare.40 In doing so, I bear in mind that these principles were outlined in the context of an application pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) and with reference to an application brought by the Attorney-General with respect to a prisoner serving a sentence. I am satisfied that the same principles apply to an application pursuant to s 57 of the Act. What follows are aspects of Hinton J’s analysis that are particularly pertinent to the present matter:41 Whilst the exercise of the power [to order indefinite detention] is not expressly conditioned upon the Court finding that the offender subject of an application is incapable of controlling, or unwilling to control, his or her sexual instincts, the Full Court has stated that the question whether the subject is incapable or unwilling to control his or her sexual instincts is a threshold question that must be answered yes or no, otherwise, bearing in mind the scheme created … no proper foundation exists for the Court to consider the risk that the offender poses to the safety of the community. Having answered the threshold question, there remains vested in the Court a residual discretion – despite the Court finding that a person to whom the section applies is incapable or unwilling to control his or her sexual 38 R v O’Shea (1997) 94 A Crim R 560 at 564 (Doyle CJ); R v England (2004) 87 SASR 411 at [11] (Bleby J); Attorney-General (SA) v Smallbone [2018] SASC 2 at [116] (Hinton J); R v Mountford [2019] SASC 16 at [56] (Nicholson J); Wichen v The Queen (2021) 138 SASR 134 at [38] (Kelly P, Lovell and Bleby JJA). 39 [2019] SASC 16. 40 [2017] SASC 7. 41 R v Hoare [2017] SASC 7, [63]–[65], [71]–[73]. -- 13 of 63 -- [2024] SASC 84 Kimber J 12 instincts, it may be inappropriate that an order for indeterminate detention be made. Here it is important to bear in mind, for example, that the application may be made well in advance of the completion of an offender’s determinate sentence, when there is much time remaining for the offender to take advantage of courses and programs offered by the Department for Correctional Services. While a conviction for a “relevant offence” is a precondition to the engagement of the scheme, the scheme’s purpose is not punitive. Rather, it is concerned with preventing recidivist sexual offending through incapacitation and rehabilitation. The scheme does not punish an offender twice for the same offences or increase the punishment for those offences. While it operates by reference to an offender’s status as a person convicted of a relevant offence, it sets up its own normative structure. The purpose of an order of indeterminate detention is to protect the community from sexual offenders where the risk posed by such a person is such that it is inappropriate that they be released, even when they have completed what would otherwise be their period of imprisonment for the offences that they have committed. Additionally it is to ensure that the person “receives appropriate treatment, review and supervision”. An order for indeterminate detention should only be made where there is cogent and reliable evidence justifying the making of the order. In this regard Bleby J’s observations in R v England made in relation to a prior version of s 23 remain apposite. He said: ... satisfaction as to the inability of a person to control their sexual instincts is a matter of assessing the opinions to that effect, their strengths and their weaknesses, to a point where the court can be satisfied that the incapacity is present. In doing so, the court will need to take account of the seriousness of the declaration it is asked to make and the gravity of the consequences of giving the direction. To borrow the words of Dixon J in Briginshaw v Briginshaw, the necessary degree of satisfaction cannot be produced “by inexact proofs, indefinite testimony or indirect inferences”. It will require cogent and acceptable evidence in order to justify the making of the declaration and the giving of the direction. But even then, there is a residual discretion conferred by the use of the word “may” in the subsection. In that respect it may also be appropriate to consider, as in the case of R v Fahey and R v Riley whether, if a sentence is also imposed, the defendant is likely, at the end of the custodial period, to resume similar sexual activities. This will, in turn, require consideration, among other things, of the defendant’s access to and the likely effect of various regimes of treatment, and whether they can be effected in the prison setting or in some other institution contemplated by the section. (footnotes omitted) … Something more should be said here as to the significance of s 23(5). In R v Schuster the Full Court tackled the question of the significance of making the public safety the paramount consideration in the context of an application for release on licence. It said: What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to order release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot -- 14 of 63 -- [2024] SASC 84 Kimber J 13 be measured with mathematical precision. The use of qualifiers like low, medium or high, would have limited utility. I think these observations apply equally to s 23(5). So too the observation that the “exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety”. The Court quoted from the judgment of the Queensland Court of Appeal in Attorney-General (Qld) v Francis as reflecting the approach to be adopted. In that case Keane and Holmes JJA and Dutney J said: The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint. Again such approach may be seen to apply equally to an application made under s 23. If the Court is satisfied that the offender is incapable or unwilling to control his or her sexual instincts, the question is whether an order for indeterminate detention is apt to ensure adequate protection of the community, having regard to the risk to the community posed by the offender. (footnotes omitted) Consideration 38 The respondent’s offending and the opinions of the three experts leave me in no doubt that the respondent is unwilling to control his sexual instincts in the relevant sense. The real issue is whether to exercise the discretion. 39 As set out, the paramount consideration when considering whether to make the order sought by the applicant is the need to protect the safety of the community. The purpose of the order sought is not to punish the respondent again. It is to be regarded as an exceptional order not lightly made. 40 Were the release of the respondent relatively imminent, on the material currently available, in my view, the making of the order would be appropriate. Nevertheless, given the sentence imposed, and even taking account of the possibility the respondent may be resentenced to a lesser sentence should his appeal succeed, there will not be any risk to the safety of the community for a very long time. Should the existing non-parole period remain in place, the respondent will be in his late 60’s before being eligible for parole. 41 In the circumstances, particularly as, at present, the respondent does not pose any risk to the safety of the community and as there is no prospect of him doing so for a very long time, I decline to make the order sought by the applicant. Regardless of the outcome of the appeal against the sentence, there will be a very significant number of years before there will be eligibility for release on parole. In that period, the respondent will have the opportunities to engage in treatment; to -- 15 of 63 -- [2024] SASC 84 Kimber J 14 attempt to lower his risk and to work towards reform. After the opportunity to engage in treatment has been provided, opinions will be able to be expressed about the level of risk of the respondent to the community. On the material currently available, the prospects of the respondent not being unwilling in the relevant sense in the future may not be great but the stakes for the respondent are high. 42 If, in the future, it turns out that the respondent might still be unwilling in the relevant sense, it will be open to the Attorney-General, closer to the time of any release, to make a fresh application. 43 For the above reasons, I refuse the application. -- 16 of 63 -- [2024] SASC 84 Kimber J 15 Settled by the Honourable Justice Kimber on 21 December 2023 INTERNET VERSION IN THE SUPREME COURT CRIMINAL JURISDICTION ADELAIDE WEDNESDAY, 20 DECEMBER 2023 AT 2.20 P.M. BEFORE THE HONOURABLE JUSTICE KIMBER NOS.SCCRM-22-14, 22-16 & 22-15 R V JADD WILLIAM BROOKER HIS HONOUR IN SENTENCING SAID: Jadd William Brooker, you have pleaded guilty to 182 separate offences across three Informations. The offences for which you must be sentenced are possessing child exploitation material which has a maximum penalty of five years, aggravated possessing child exploitation material which has a maximum penalty of seven years, producing child exploitation material which has a maximum penalty of 10 years, aggravated producing child exploitation material which has a maximum penalty of 12 years, dissemination of child exploitation material which has a maximum penalty of 10 years, aggravated dissemination of child exploitation material which has a maximum penalty of 12 years, obtaining access to child exploitation material which has a maximum penalty of five years, aggravated -- 17 of 63 -- [2024] SASC 84 Kimber J 16 obtaining access to child exploitation material which has a maximum penalty of seven years, communicating for a prurient purpose with the intention of making a child amenable to a sexual activity which has a maximum penalty of 10 years imprisonment and maintaining an unlawful sexual relationship with a child, now sexual abuse of a child, which has a maximum penalty of life imprisonment. I will use the term 'maintaining'. In doing so I have not overlooked the policy which underpinned the change in the name of that offence. The offences for which you must be sentenced were committed over about four and a half years between about January 2016 and August 2020. Appropriately, your offending has been described as prolific. The offences for which must be sentenced were committed against the background of a substantial amount of uncharged offending. You will only be sentenced for the offences to which you pleaded guilty. Because of the number of offences for which you must be sentenced I make clear that I will not attempt to refer to everything. The conduct the subject of your offences and the context in which it occurred are not in dispute. The facts are in a prosecution factual summary which you have not disputed. I have sentenced you on the basis set out in that document, as it has been amended. I have also perused some of the affidavit material and acted on some aspects of that material. -- 18 of 63 -- [2024] SASC 84 Kimber J 17 I have information about you which goes beyond that factual summary and the affidavits. In particular the submissions of your counsel, three expert reports and oral evidence from those experts. I have carefully considered those submissions and all expert material. I will not refer to everything. Given the number of offences I will structure my remarks in the following way: first, I will make some general observations about your offences, second I will say something about your personal circumstances, third I will address some of the expert evidence, fourth I will touch upon each type of offence, at least in some way. I will commence with those offences in which there are identified victims. When moving through the offences, I will at times in my oral remarks identify notional starting points. You are entitled to reductions for your guilty pleas. The applicable reduction will be set out in an annexure to these remarks. That annexure (Annexure A) forms part of my sentencing remarks and will be ultimately published along with a copy of what I say today. Annexure A sets out the notional starting point for each offence, the reduction to which you are entitled and the notional sentence for each offence after that reduction. I have given you the full reduction for every offence. At the end of my remarks, I will stand back and look at all of the offences and the overall gravity. -- 19 of 63 -- [2024] SASC 84 Kimber J 18 Finally, at the end of my remarks, I will fix a single head sentence and non- parole period. I commence with some remarks of a general nature. Each of your offences involves some form of sexual exploitation of a child. Putting aside some of your offences which involved possession of child exploitation material, your offences involved 96 separate victims. Of those victims, nine have been able to be identified. This is not to suggest that offences involving possession of child exploitation material, or any like offence in which the identity of a victim is not known, is a crime without a victim. Every child involved in your offending is a victim. Some of your offences involved child exploitation material. You possessed it, obtained it and disseminated it. Every child depicted in child exploitation material is victimised. There is an international market for child exploitation material. On occasions you distributed child exploitation material to others, including to other apparently like-minded adults. On occasions they provided you with material. Your behaviour and that of the other men who provided material to you is an illustration of the demand for material that exploits children. You contributed to that demand by seeking material and you participated in that market by sharing material. In using the word 'market' I do not suggest that you paid for material or that you received payment for any material. -- 20 of 63 -- [2024] SASC 84 Kimber J 19 Of course, your offending is not limited to offences involving child exploitation material. You exploited boys by engaging in contact offending and by communicating with them. Child sexual offending in any form is abhorrent. When children are victims of sexual offending all of society is degraded. The court has a responsibility to demonstrate that such conduct is being taken seriously. The primary purpose of sentencing is the protection of the safety of the community. Deterrence is important. Child sexual offending is abhorrent for many reasons. It exploits the most vulnerable in our community. Children are easily influenced and have only limited understanding of the nature, consequences and risks of sexual activity with adults. It can have life-long negative impacts upon children. It can cause emotional and psychological harm that can be more pervasive and permanent in its effect than any physical harm. That emotional harm can also be felt by the family and other caregivers of victims. An aspect of the material before me is a community impact statement. I will not refer to every aspect. I mean no disrespect by observing that in many ways it sets out matters of which courts have long been aware. Sometimes problems occasioned by sexual abuse only emerge a long time after the conduct. Sometimes one act is enough. Research suggests that victims of child sexual offences are at increased risk of health problems. Child sex -- 21 of 63 -- [2024] SASC 84 Kimber J 20 offences have an economic cost, both to the child and the community more broadly. Public resources must be allocated to services to assist victims and others adversely impacted. There can be lost productivity. Sexual abuse of children can have other adverse impacts. It inhibits the level of trust in our community. Caregivers can deprive children of freedoms as a result of a lack of trust in others. Limiting the ability of a child to interact freely with other children and to enjoy a level of independence as they grow up can impair a child's development. Sexual offending against children is disturbingly common. Social media and the internet have many benefits but you, and people like you, utilise the internet and social media to offend by engaging with children away from the oversight of parents and other caregivers. You are 41 years of age. You do not have any relevant prior offending. I have reports from three experts; Dr Nambiar, Dr Haeney and Mr Balfour. I have been greatly assisted by the submissions of your counsel. He asks, among other things, that I impose a sentence at the bottom of the appropriate range. You grew up in South Australia. Your parents separated when you were very young. You have enjoyed positive relationships with both your parents. You still have regular contact with them. You finished school. It appears that you have had a good employment history. You have made positive contributions to community sport. -- 22 of 63 -- [2024] SASC 84 Kimber J 21 You are also a victim. You came out to your parents after you had been sexually abused from the age of 13. You engaged in sexual acts with adult males at a shopping centre on a regular basis. You have believed those experiences were positive ones, but you were exploited by those men. Those experiences have distorted your view of your own offending. At the same time, that distorted view is relevant to the extent to which the community needs to be protected. At the time of your arrest you had been in a relationship with your then fiancé for about nine months. That relationship has since come to an end. You are a long-term user of illicit drugs. It is an issue you will need to address if you are to lower your risk. You say that you have no desire to use in the future. Illicit drug use began when you were about 18. You have reported developing an addiction to ice in about 2016. It can be accepted that taking ice may have increased your libido and lowered your inhibitions. It may be that you were experiencing those effects at the time of some offences. That cannot have been the case every time. Experiencing the effects of ice on every occasion of offending could not be reconciled with the prolific nature of your offending, your ability to hold employment and the clarity of your communications. Even if you were affected at the time of any offence, that would not be a matter in mitigation. -- 23 of 63 -- [2024] SASC 84 Kimber J 22 You were diagnosed as HIV positive in 2017 and have been provided with prescribed medication. I will say something more about that when I discuss the maintaining offences which involved, at least, unprotected acts of fellatio and anal sex on occasion. The offences you committed demonstrate that you have a deep interest in sexual acts with children, specifically adolescent males. This is not to overlook that some of your offences involved images and videos of much younger children. Given that material I am satisfied beyond reasonable doubt that, while your particular interest is in adolescent males, you have at least a broader interest in sexual images and videos of younger children. You have an interest in sharing your interest with other like-minded adults. You communicated with adults and sought and provided child exploitation material. When interviewed by Mr Balfour you expressed that your interest in adolescent males was in the past. There is also reference in Mr Balfour's report to you being predominantly sexually attracted to males in their mid 20s to mid 30s. Given the prolific nature of your offending against children, I cannot accept that your interest in adolescent males is behind you. I reject the possibility that your predominant sexual interest is in adult males. Mr Balfour believes you satisfy the diagnostic criteria for a homosexual paedophilic disorder of the non-exclusive type. In contrast, Dr Haeney does not -- 24 of 63 -- [2024] SASC 84 Kimber J 23 believe you meet the criteria for a paedophilic disorder, nor the criteria for a psychopathic personality disorder. To the extent that there might be differences between the experts about whether you satisfy the criteria for one or more disorders, that is not something that need be resolved. Having considered the reports and evidence of three experts, there are though several things which are clear. Your risk of re-offending is particularly high. Were you not in custody you would pose a grave risk of engaging in sexual activity with adolescent males both in person and by communicating. In my view, you would also be at grave risk of possessing, accessing and disseminating images of children. On any view you need intensive treatment. No meaningful prediction can be made of your prospects of rehabilitation at this time. You will need to participate in appropriate programs while in custody. There are reasons to be cautious about your insight into your offending. As I have said, I cannot accept that your sexual interest in children is behind you. Dr Nambiar interviewed you in April 2022 and then reported that you had a distinct lack of empathy for your victims. In his opinion you were, among other things, minimising your conduct and failing to accept responsibility. You had a distorted appreciation of the severity of your offending. -- 25 of 63 -- [2024] SASC 84 Kimber J 24 You were interviewed by Dr Haeney about a week after Dr Nambiar. To Dr Haeney you expressed remorse for your conduct and did not attempt to justify the offending. Nevertheless, you showed at that time a tendency to blame your offending largely upon your drug use. In the opinion of Dr Haeney it was too early to say whether you will benefit from the treatment likely to be made available during your sentence. Your interviews with Mr Balfour were more recent, in February 2023. To Mr Balfour you made statements which, if genuine, reflect a greater acceptance of the gravity of your conduct and the impact upon your victims. I have found it difficult to predict how genuine the statements were which might reflect positive developments in your thinking. I have found myself unable to reach a conclusion about that. What is clear to me is that it will be a long time before any confident prediction might be made about reform. I turn now to the offences. The number is so great that I will not attempt a summary of every offence. Out of respect to victims who have been identified and who have provided statements I will summarise the offending involving them. I mean no disrespect to any victim by the approach I will take in not referring to everything. The number of offences is too great. -- 26 of 63 -- [2024] SASC 84 Kimber J 25 You did not dispute the factual summary provided by the prosecution, as amended by the prosecution. As you did not dispute it, nor dispute any amendment, I have relied, as I have said, on that document. Other than for those maintaining offences which involved physical contact with the victims, there is no sentencing standard for your offences. None of the maintaining offences involves a breach of trust, informal or otherwise. Nevertheless, there is disparity in age, maturity and power. I recognise that the sentencing standard is not a precise figure. There is a breach of trust in some offences. There are occasions on which you disseminated to others child exploitation material which depicted children with whom you had participated in sexual activity. With respect to the offences involving possession of child exploitation material and some dissemination offences, the images and/or videos have been classified on what is called the Oliver scale. Where that scale is relied upon in the prosecution summary I have applied it in considering the appropriate notional sentence for a relevant offence. The Oliver scale will be an annexure to my sentencing remarks (Annexure B). It forms part of my sentencing remarks and will ultimately be published along with my remarks. I will commence with the maintaining offences and other offences involving those victims. -- 27 of 63 -- [2024] SASC 84 Kimber J 26 I turn to your offences involving KP. Between 31 December 2017 and 11 September 2020 you maintained an unlawful sexual relationship with KP by engaging in several sexual conversations with him online. This is count 5 on the second Information. KP was born on 23 February 2005 and lives in New South Wales. KP was 12 when the conduct the subject of the offence first took place. You are not to be sentenced for any contact offending with KP as that occurred in New South Wales. In New South Wales, you met with KP twice and engaged in sexual activity in that State. That explains though, at least in part, how you had certain photographs of KP. The communications with KP the subject of the maintaining offence are highly sexual in nature. They occurred from at least January 2018 to August 2020. The messages are identified from communications spanning hundreds of pages. There were also video calls. The communications include discussion about fellatio and anal sex. There are communications about sexual acts involving faeces, a particular interest of yours. Communications of that type are just one indication of the extent of your exploitation and corruption of KP. Images are exchanged. I will just mention some aspects in order to give an idea of the nature of the communications. In January 2018, there are Skype messages in which you say that you would like to defecate on him. In February 2018, there is a video call in which you indicate you wish to 'smash the fuck out' of his anus. -- 28 of 63 -- [2024] SASC 84 Kimber J 27 In August 2018, you communicate on iMessage, whereby you tell KP that you cannot wait to fuck him, send him an image of your penis and refer to having anal sex with KP and having him perform fellatio on you while your penis is covered in faeces. In December 2018, you tell KP 'I want to breed ur filthy hole' and you send a video of you defecating. In October 2019, you engage in a highly sexual conversation. You ask when he can send you a video of him 'getting fucked', and KP sends you videos of him using a dildo. KP estimates that he sent you at least 50 sexual videos. Some were particularly depraved. KP has provided a victim impact statement. He was a particularly vulnerable child. He has become scared, anxious, depressed and has suffered panic attacks. He has difficulties with trust. He anticipates the trauma that he currently experiences will never be behind him. The maintaining offence involving KP does not involve contact offending. That does not mean that the sentencing standard can be ignored. The acts the subject of the offence took place repeatedly, over an extended period, and involved communications which were very explicit and depraved. In my view, the maintaining offence involving KP committed only by communicating is no less likely to cause harm and is no less exploitative than an offence involving sexual acts in person. -- 29 of 63 -- [2024] SASC 84 Kimber J 28 For the maintaining offence involving KP, I identify a notional starting point of 14 years. There are 19 other counts involving KP. Each involves dissemination of child exploitation material which depicted him. It follows that you not only exploited him when communicating with him, you exploited him by providing images of him to others. That was an egregious breach of trust and power. Of the 19 counts, there are eight counts of aggravated dissemination: counts 7, 9, 26 and 32 on the second information and counts 105, 108, 120 and 129 on the third information. Count 105 does not only include images of KP. I will give some examples of the images. Count 108 involves two images being disseminated. The first is of you and KP naked. The second is of you penetrating KP's anus. You disseminated three images the subject of count of 120: one image of you naked with KP, one image of you anally penetrating KP and one image of KP licking your anus. For those eight offences, I identify eight separate notional starting points of three years and six months. Of the 19 counts, 11 are dissemination of child exploitation material offences: counts 13, 16 and 31 and 33 on the second information and counts 93, 98, 100, 109, 119, 132 and 133 on the third information. I will give some examples of the images. -- 30 of 63 -- [2024] SASC 84 Kimber J 29 Counts 13 and 16 do not only include images of KP. The child exploitation material the subject of count 13 includes videos of KP naked, covering himself in faeces and using a dildo. Another example of the material disseminated is that the subject of count 100. Five images of KP were disseminated. Three images depict him naked and covered in faeces. One image depicts him with a dildo in his mouth while another is of him naked and masturbating. For those 11 offences, I identify notional starting points which range between 12 months and two years and nine months. The notional starting points differ depending upon the categorisation of what is depicted. Were I to identify a notional sentence for the 19 counts just mentioned, consideration of concurrency would be appropriate. I turn to the offending involving DD. DD was born on 26 October 2020. Between 1 April 2017 and 26 October 2019, you maintained an unlawful sexual relationship with DD by engaging in multiple sexual conversations with him online. This is count 134 on the third information. You first began chatting with DD on Grindr in 2016. DD had set his age as being 18 as that is the youngest age a user can choose. At the time of the offence though, DD was 16. You knew that DD was under the age of 17, during the period -- 31 of 63 -- [2024] SASC 84 Kimber J 30 of the offence. You continued to communicate with him after he turned 17 but you must not be sentenced for that. After a few days of messages, DD says the conversations quickly became sexual. You began to discuss masturbating and what you both wanted to do to each other if you met. DD estimates you sent him 20 to 30 nude photographs as well as videos. DD estimates he sent you 35 to 40 images of himself. After a few weeks of chatting, DD says you moved communications to Skype. On Skype, he recalls making a video call to you, during which you both masturbated while on camera. You spoke about meeting in person but that never eventuated. I give some examples of the communications. You ask how many 'daddies' he is chatting to. You say you want to fellate him. You refer to what you wanted to do with DD's ‘butt’. You say that you want to ‘fuck’ him and ask him if he wants to be ‘fucked’. You invite him to meet with you, but he declines. For this count, I identify a notional starting point of nine years. That starting point, of course, takes into account the age of DD, the duration of the offence and the sexual activity the subject of that count. -- 32 of 63 -- [2024] SASC 84 Kimber J 31 Before dealing with any further maintaining offences, it is necessary to say something more about you being HIV positive. As mentioned earlier, you have known you are HIV positive since at least 2017. The sex that you had was unprotected and might ordinarily be thought to have put any victim at risk of also becoming HIV positive. Prescribed medication reduces your viral load, perhaps even to nil when you are compliant with medication. I am satisfied beyond a reasonable doubt that there were times during the period of contact offending in which you did not take your medication consistently. However, I am unable to make a finding beyond a reasonable doubt about the risk that you posed at the time of any relevant conduct. I suspect that you did pose a risk. For example, you told a person with whom you were communicating and exchanging child exploitation material that you were having sex with children when you were not taking medication. However, suspicion is not enough. There is no expert evidence about the risk posed when compliant with medication and when not compliant with medication. Further and very importantly, in any event, I must not sentence you for an offence to which you have not pleaded guilty. For example, you have not admitted any offence of endangering life, creating a risk of harm or any other like offence. -- 33 of 63 -- [2024] SASC 84 Kimber J 32 Nonetheless, that you were non-compliant with your medication at times when you engaged in unprotected penetrative sexual intercourse is still a serious aspect of those offences in which acts of that type took place. Although you will not be sentenced on the basis that you posed a risk of passing on HIV, or of committing an offence not charged, I am satisfied beyond a reasonable doubt that you put the relevant victims at risk of emotional distress once they discovered that you were HIV positive after they had engaged in unprotected sex with you. To avoid any risk of sentencing you for an offence not charged, I have made no finding about you intending or being reckless about such emotional distress. Against that background, I turn to the next offence. It involves JA. The particulars of the count to which you pleaded, suggest that JA was 15 years old at the time the maintaining offence involving him commenced. However, he says that the conduct the subject of the count commenced in late 2018, a couple of months after he turned 16. I proceed on the basis JA was 16 and on the basis that between late 2018 and late 2019, you engaged in kissing, fellatio and anal penetration with JA while he was 16. Sexual communications are not acts within the particulars of this offence. This is count 135 on the third information. JA would regularly use Facebook, Snapchat and Instagram on his phone. He also had a Kik account and a Grindr account. JA set his age to the legal minimum -- 34 of 63 -- [2024] SASC 84 Kimber J 33 of 18 years on Grindr, but he would tell people his real age when he began chatting to them. In late 2018, JA first started talking to you. After a while, you exchanged mobile numbers and started talking via text message. You discussed having sex and meeting up in person. JA sent you images of his penis and anus. JA met up with you on three occasions to engage in sexual activity. The first occasion was before Christmas school holidays in 2018. JA went to your house. You kissed. You asked about JA's age, you eventually guessed correctly that he was 16. On this occasion, JA kissed and fellated you. You performed fellatio on JA and had anal sex with him. You also showed him pornography. He was at your house for about an hour. The two of you continued to text. There was a pause in communications when JA went overseas. In early 2019, you began to chat again. On one occasion, JA messaged you. You suggested sending an Uber to collect JA. You both sent intimate images. Eventually you did meet a second time. You sent an Uber to collect him. JA came to your house. JA was at your house for about an hour. There was kissing and fellatio. You had anal sex as well. JA went to your house a third time a few weeks later. Again, you arranged an Uber. As before, there was kissing and anal intercourse. After that visit, you continued to text but did not meet again. -- 35 of 63 -- [2024] SASC 84 Kimber J 34 For the maintaining offence involving JA, I identify a notional starting point of 11 years. The higher notional sentence compared to DD is called for because you met with JA and engaged in sexual acts in person. The next victim is JS. The maintaining offence involving him is count 136 on the third information. JS was 14 when this offence commenced. Between January 2017 and 10 March 2020, you maintained an unlawful sexual relationship with JS by engaging in sexual acts with him. Those acts involved kissing, fellatio and anal penetration. For this charge, sexual communications are also part of the offence. When he was 14, JS joined an online website. When JS created his account, he lied and stated that he was 18. However, once he began chatting to a particular profile, he would say he was 14. You knew JS was 14. After chatting for two or three days, you suggested meeting in person. Before meeting, the two of you discussed performing fellatio upon one another. The first arranged meeting did not go ahead. JS did not attend. A further plan to meet was made about a week later. You met JS after school and took him back to your house. The two of you kissed and performed fellatio upon one another. JS was at your house for about half an hour or so. You met a second time. You again took JS back to your house. JS kissed you and performed fellatio. You did the same. You wanted to have anal intercourse but JS did not want that. You used your mouth on his anus instead. -- 36 of 63 -- [2024] SASC 84 Kimber J 35 After this meeting, the two of you continued to chat. You discussed sexual topics and exchanged child exploitation material. The third occasion you met was again at your house. There were mutual acts of fellatio. You also tried to put your penis into his anus. The penetration was brief as JS told you to stop. You invited JS to perform anal sex on you and he did that. JS stopped communicating with you for a few months but resumed contact in around July 2018. The two of you met on a fourth occasion. This was in or around later in 2018. JS was 15. It was in or around October 2018. You arranged an Uber to collect JS and bring him to your home. There was kissing and fellatio. You had anal sex with him. You penetrated him and ejaculated. JS continued to communicate with you over Snapchat. You suggested spending the night together and this occurred just after his 16th birthday. You picked him up and you took him to your home. You performed oral sex on each other and there was anal intercourse. You made a recording of the anal sex. JS stayed the night. JS fellated you and you masturbated each other. After this occasion, there were two occasions on which you picked JS up from work and you engaged in sexual activity. On one occasion, you engaged in oral sex in your car. A month or so later, you collected JS from work again. There was again oral sex in the car. You took JS to your home. There were various sexual acts, including fellatio, anal intercourse and kissing. On the way home JS performed fellatio. -- 37 of 63 -- [2024] SASC 84 Kimber J 36 JS believes that occasion was the last time he saw you in person. Nonetheless, the communications continued. The two of you would masturbate in video calls. After a while, the two of you stopped communicating. It appears that JS wanted to meet again but eventually you did not respond. For the maintaining offence involving JS, I identify a notional starting point of 12 years. The difference with JA is because of the age of JS when the offence commenced, the greater number of meetings and the greater number of acts the subject of the count. The offence with JS includes sexual communications. There is one other offence involving JS. A count of dissemination of child exploitation material, count 23 on the second information. That offence involved providing an adult male with a video of you engaging in anal intercourse with JS. That is an egregious breach of his trust. It created a real risk of that video being distributed to others. For that offence, I identify a notional starting point of two years and nine months. In the ordinary course, I would make both of the notional sentences for the two offences involving JS cumulative. The next victim is NH. The maintaining offence involving him is count 137 on the third information. The offence began when NH was 14. His mother read a victim impact statement. You took advantage of an innocent, immature boy. His mother says you took his innocence and ability to -- 38 of 63 -- [2024] SASC 84 Kimber J 37 explore his sexuality with someone of his own age. You enticed him away from those in a position to protect him. NH's mother experiences pain and anxiety. She has seen her son suppress his feelings and withdraw. She describes you being HIV positive and waiting for test results as agony. Between January 2020 and the end of July 2020, you maintained an unlawful sexual relationship with NH by engaging in multiple sexual acts with him that involved kissing, fellatio, masturbation, anal sex and sexual communications. NH downloaded the Grindr application in either late 2019 or early 2020. That is how you met. NH says that once the two of you began chatting, the conversation quickly turned sexual. You sent each other intimate images. NH estimates that he sent you about 15 to 20 images and a few videos. After a while, NH told you that he was 16 and in year 10. In early 2020, you messaged NH, asking to meet at the shops. You suggested going into a bathroom to have sex. The two of you met. You went into a bathroom stall, you kissed and masturbated NH. You attempted to have anal sex with NH but that was not successful. You then fellated him. After this, you and NH continued to chat, share photos, videos and engage in sexual chat. Some time between May and July 2020, NH arranged to meet you a second time. You picked NH up in your car. You drove to a car park. You and NH engaged in kissing, masturbation and fellatio with one another. NH says the two of you continued to chat for a bit, but then he deleted the application. -- 39 of 63 -- [2024] SASC 84 Kimber J 38 In July 2020, NH contacted and you sexual chat resumed. For example, on 10 July 2020, the two of you sent one another naked images and discussed the sexual activity you would engage in if you met. While there was some discussion about meeting again in person, that did not eventuate. For this offence, I identify a notional starting point of 11 years. A lower starting point is appropriate than for JS as you only met in person twice. That is not to overlook the sexual communications which are an important part of the offence. Across the second information and the third information, there are 107 counts of communicating for a prurient purpose. Those offences occurred between October 2016 and August 2020. There are 87 separate victims of whom only three have been identified. Each of those three have provided statements and may be identified as BP, MA and TS. In relation to each of those three victims, you are charged with a single count. Putting aside BP, TS and MA, there are 84 other victims of communicating counts. Of that 84, there is one victim of seven counts, three victims of three counts, eight victims of two counts, and 72 victims of a single count. I have sentenced you, as I have said, on the facts of each offence based upon the prosecution factual summary which you have not disputed and as amended. I recognise that the prosecution factual summary in relation to the communicating offences also details conduct not the subject of any charge to which you have pleaded guilty. You will not be sentenced, as I have said, for any such conduct. I -- 40 of 63 -- [2024] SASC 84 Kimber J 39 have regard to it only to the extent that it informs the background and context of any conduct that is the subject of a charge to which you have pleaded. I will refer to the general nature of the conduct before referring to the offending involving each of BP, TS and MA. I will then give some additional examples to provide a guide to the sorts of conduct to which you have pleaded guilty. I will do this as I do not intend to refer to the detail of each offence. As there are 107 counts, I do not believe there is sufficient utility in spending the time it would take to detail each separate offence in my oral remarks. I have carefully considered the factual summary and the conduct the subject of each count. Across the 107 counts, you utilised more than one communication platform. Examples of the platforms you used include Kik, Skype and Facebook Messenger. You engaged in chat, video calls and the exchange of images. On occasions, you engaged in sexual acts during video calls. On some occasions, you discussed your interest in sexual acts involving faeces or ‘scat’. You do not do all those things with all victims. Regardless of the form and content of the communications, you were exploiting each child and taking advantage of them in the most egregious fashion. Each child was vulnerable because of their age and sexual immaturity. I now provide some illustrations of the types of communications and I will start with BP, TS and MA. -- 41 of 63 -- [2024] SASC 84 Kimber J 40 TS was born on 5 August 2005 and was 13 years old when you commenced communicating with him. You communicated for about a year, but the communication the subject of the charge was more than one incident of contact which occurred between 15 and 18 July 2019, count 88 on the third information. During the conversation on 16 July 2019, TS was 13 but told you that he was a 14-year-old male. You exchanged images of your faces. You sent an image of your penis to him. There are sexual discussions. TS sent you multiple images of his penis over the course of these discussions. You discussed meeting up in person to engage in sexual activity. You tell TS that you want to ‘suck his balls’ and tell him about your erect penis. I identify a notional starting point of 18 months. BP was born on 7 February 2000. Police located Facebook messages on your phone. These messages appear to commence on 7 September 2016 and continue up until March 2017. BP met you through a school friend and another one of your victims, RC. You chatted using Facebook Messenger. BP says he would communicate almost daily. You called him cute and asked to meet up. He said that he did not want to do that. You sent him images of you watching pornography and sent him videos of you having sexual intercourse. -- 42 of 63 -- [2024] SASC 84 Kimber J 41 I turn to the conduct the subject of the offence involving BP which is count 4 on the second information. The offence encompasses contacts between December 2016 and what I take to be just before his 17th birthday. You asked him about pornography. You sent him links. You sent him videos of you watching pornography. You suggested to him that you watch pornography together. You asked him for an image and when he sent an image of his chest, you complimented him. You sent him an image of a penis with a face alongside it. You sent him videos of you having sex with another person. For that offence, I identify a notional starting point of two years and six months. I turn to MA and count 65 on the third information. MA has provided a victim impact statement. He is a vulnerable child. He has anxiety and depression. He has made attempts on his life. He struggles to trust people. He has been hurt by you and believes that you took his future from him. The relevant communication with MA, the subject of the offence, was on 25 April 2018. MA was 16. The communication was on Skype. MA added you and the two of you quickly commenced a video call. The call lasted about five minutes. You were both masturbating on camera. You asked MA to meet with you. You expressed an interest in having sex with him. You asked MA about his sexual experience with boys. You told him that you had engaged in intercourse with boys of the age of MA. I identify a notional starting point of 18 months. -- 43 of 63 -- [2024] SASC 84 Kimber J 42 I will give some other examples of the type of conduct the subject of the communicating offence. There were several victims which are the subject of multiple counts to which you have pleaded guilty and others who, as I have said, are the subject of one count that involved many communications over a period of time. I will give some examples of each. One child used the Skype profile name ‘Lucifer’. You communicated with him extensively between 30 April 2017 and 1 July 2017. These communications are the subject of counts 1-3 on the third Information. You have pleaded guilty to other offending in relation to Lucifer to which I will later turn. You communicated with Lucifer over Skype with messages and video calls. On a number of occasions you tell him you are horny and that you are watching pornography. You tell the victim he is your ‘boy’ and that you want to make love to him every day. You refer to anal sex. You send him images of yourself. You ask the victim for images of his anus. The victim sends you images of himself that are child exploitation material. That conduct is the subject of charges to which I will later turn. For each of these three counts I identify three notional starting points of two years and six months. Another child the subject of three counts communicated with you over Skype under the profile name ‘jg’. You communicated with jg over the course of -- 44 of 63 -- [2024] SASC 84 Kimber J 43 approximately three and a half months commencing on 23 January 2018. This offending is the subject of counts 54, 55 and 56 on the third Information. On 2 February 2018 jg told you he was 15. You engaged in messaging of a sexual nature on that day including asking what jg is into. The messages on that day are the subject of the count 54. On 10 April 2018 you engaged in further communications with jg which are the subject of count 55. You tell him you are horny and that you want to see his penis before discussing dressing up. During these communications you exchange Snapchat details with jg and engage in a video call. On 4 May 2018 you engage in communications with jg which are the subject of count 56. During this communication you asked jg to assist you in being sexually aroused. You engaged the victim in a video call which lasted 59 seconds. For count 54 I identify a starting point of 18 months. For counts 55 and 56 I identify two starting points of two years. Another child has the Skype profile ‘Jacob Kemph’. You commenced communicating with this child on 29 December 2019 and continued for approximately nine months. Your communications with Jacob Kemph are some of the most serious examples and are the subject of counts 112, 114 and 115 respectively on the third Information. Turning to count 112. During a conversation on 29 December 2019 over Snapchat you role played sexual activity with the child. You told him he was ‘hot’ -- 45 of 63 -- [2024] SASC 84 Kimber J 44 and that you would force him to fellate you. You related to the child your sexual experiences when you were between 12 and 15 years of age and asked him whether he would want you to do the same for him. You engaged in further sexual discussions on that day and he provided you with child exploitation material the subject of count 113. Between 22 January 2020 and 8 February 2020 you engaged in further communications with Jacob and they are the subject of count 114. During the course of these conversations you pressure him to send child exploitation images of himself after he asked you to find him a male in the United States. You instructed him on the kind of material you needed, telling him that otherwise your contacts would not bother. You further state that you wanted to start a bidding war over him. In response to images he sends, you tell him that he is really beautiful and totally gorgeous and that you would have 'raped' him so many times if he were there. On 7 February 2020 you confirm that you sent the images he shared with you to your friends in the United States. I remind myself that you are not to be sentenced in relation to this count for any offence of obtaining or disseminating child exploitation material. On 19 August 2020, you engaged in communications with Jacob the subject of count 115. During this conversation in response to being told the child is a virgin you tell him you want to watch him ‘get fucked’. -- 46 of 63 -- [2024] SASC 84 Kimber J 45 For each of the communicating counts involving Jacob Kemph, I identify separate notional starting points of two years. There are also a range of other instances where multiple contacts are the subject of a single communication charge. One of the more serious examples is count 8 on the third information. Over the course of five days from 25 May 2017 you persistently engaged in sexual communications with a victim over Skype with the profile name ‘Henryyyyy S16’. You discussed your interest in child pornography and various other sexual interests. On two occasions during this period you discuss your state of sexual arousal and proceed to engage in video calls with the victim. In response to being told the child is 16, you tell him that you want to 'eat his little boy hole out'. I identify a notional starting point of two years and six months. Another example involves your communications with the victim over Skype who used the profile name ‘Ben Dover’ which occurred between 17 May 2017 and 11 December 2017 and are the subject of the count 13 on the third Information. During this time you were told by the victim he was 16. You engaged in a series of video calls with the victim and instructed him to play with his anus. After a video call you tell the victim to 'fuck himself like you want daddy to fuck you'. You also tell the victim you wish to lick his anus. I identify a notional starting point of two years and six months. -- 47 of 63 -- [2024] SASC 84 Kimber J 46 One child used the profile name ‘James’. You communicated with him between 6 November 2018 and October 2019. This is count 6 on the second Information. During the communication on 6 November 2018, James told you he was 13. You asked him if he wanted to be dirty with you. You asked to swap pics and you exchanged intimate images. You told him that you wanted to taste his anus. I identify a notional starting point of 18 months. Another child used the user name beginning with ‘I’m a boy’. You had communications on Skype with him over about a year. Your communication on 2 August 2019 is count 11 on the second Information. You asked him for his age, sex and location. The child said he was 16, male and living in the United Kingdom. In the communications the subject of the offence on 2 August 2019 you told the child, among other things, that your limits were ‘blood and permanent marks’, that you wanted him to lick your anus, that you did not care how dirty his anus was and you wanted to lick it clean. I identify a notional sentence of 18 months. Another child has the Skype profile I will refer to as ‘James R’. You communicate with him over about four or five months. In the initial conversation you ask how old he is. He says he is 15, turning 16 in about a month. You discuss making a video call and discuss what you want him to do. You mention masturbating, showing his anus, wanting him to touch it and a desire to use your mouth on his anus. -- 48 of 63 -- [2024] SASC 84 Kimber J 47 There is then a 15-second call during which James asks you what position you want him to adopt and you reply 'doggie please'. You give him instructions about what to do with his anus. You then engage in a video call for about 14 minutes. The communications just described are together count 15 on the third Information. I identify a notional starting point of two years. The above is a sufficient summary of the communication counts. Given the number of counts beyond those summarised I am not going to announce in my oral remarks the notional sentences for the counts which I have not summarised. All notional sentences are set out in Annexure A. The notional sentences for counts not summarised, and before the relevant discount is applied, range from between 12 months and two years and six months. The different starting points reflect considerations such as the number of contacts the subject of an individual communication or count, the degree of perseverance and the content of the communication. With some victims of communicating offences I recognise that there are other offences and the importance of not punishing you twice for considerations which overlap. Further, I again confirm that the content of the communications reveal conduct which is not the subject of a charge to which you have pleaded. I have not sentenced you in relation to such conduct. -- 49 of 63 -- [2024] SASC 84 Kimber J 48 Were I to identify a single notional sentence for the 107 counts the obligation to consider totality would immediately arise. In addition to the communication counts described above with respect to ‘Lucifer’, he is also the victim of two disseminate child exploitation counts; counts 4 and 5 on the third Information. In the opinion of police Lucifer was a child in the United Kingdom aged about 14 or 15. As you have not disputed that opinion, I have acted upon it. On 22 April 2017 you sent a person, whom I assume was an adult male, an image of Lucifer holding his T-shirt in his mouth and exposing his chest and nipples. That is count 4 on the third Information. On 25 April 2017 you sent another person, I also assume to be an adult male, 10 images of Lucifer naked with his penis exposed, along with an image of him with his penis exposed and a belt around his neck. That is count 5. The two adult males to whom you sent the images just mentioned were obviously other men with a sexual interest in boys of Lucifer's age. By disseminating the images you fuelled their interest. By providing the images to the men, I am satisfied beyond a reasonable doubt you created a risk that the images would be distributed more broadly. For count 4, I identify a notional starting point of two years, six months. For count 5, I identify a notional starting point of three years. -- 50 of 63 -- [2024] SASC 84 Kimber J 49 Were I to identify a single sentence for those two offences there would be some concurrency given the dates of the offences. However, there would not be a great deal as it is two separate criminal acts on different days. There is a victim identified as ‘RC’. He is the victim in two counts of producing child exploitation material, counts 2 and 3 on the second Information. RC was 15 years old at the time of the first of those offences and 16 at the time of the second. You had many images of RC in your possession. As to the images the subject of the two offences, one was an image of the two of you in bed topless, you were cuddling him. The other image is also of the two you topless, you were also cuddling RC in that image. For each of the two offences just mentioned, I identify two separate notional starting points of two years. Were I to identify a single sentence for those two offences, there would be some concurrency. Across the three Information there are 15 counts of aggravated disseminating child exploitation material that I have not yet dealt with. These 15 counts are counts 10 and 15 on the first Information, counts 19, 27 and 28 on the second Information and a further 10 counts on the third Information; counts 26, 71, 77, 79, 89, 99, 101, 107, 110 and 121. These offences took place between July 2017 and August 2020. As the victims have not been identified I will be relatively brief about these 15 counts. I am sentencing you based upon the prosecution factual summary. I -- 51 of 63 -- [2024] SASC 84 Kimber J 50 intend to provide just some examples to give an overview of the material disseminated. I emphasise that disseminating child exploitation material is a very serious offence. Children have been exploited, sometimes in horrific ways. Sending this material to others victimises each child each and every time. Count 10 on the first Information involves you sending an adult male three videos. In one video, a toddler is being anally penetrated. In another, the same act is being performed on a child aged about eight. In a third video, a boy aged about 10 is fellating an adult male. Count 19 on the second Information involves an image of a boy about seven being penetrated with a finger. Count 26 on the third Information relates to an image of two boys aged about 11 who are kissing. Count 71 on that same Information involves videos of children aged between about 10 and 12. The children are fellating another person or having fellatio performed upon them. A child is also depicted engaging in anal intercourse with an adult male. Count 110 on that Information involves two images of a boy aged about 12 being anally penetrated while performing fellatio on an adult male. For each of the 15 counts of aggravated disseminate child exploitation material just mentioned, I identify separate notional starting points of between two years and three years, six months. The notional starting points reflect the material and the categorisation. -- 52 of 63 -- [2024] SASC 84 Kimber J 51 There are eight counts of disseminate child exploitation material I have not yet dealt with. These are counts 11 on the first Information, counts 20 and 36 on the second Information and counts 25, 72, 86, 102 and 103 on the third Information. I will again be relatively brief. I just give some examples. Count 11 on the first Information is a video of a child aged about 14 fellating an adult male. Count 20 on the second Information is an image of a child aged about 14 being penetrated anally. Count 102 on the third Information involves two images of boys aged about 14. One child has an erection, the other child is masturbating. For each of these eight counts of disseminate child exploitation material, I identify separate notional starting points of between six months and two years, six months. The distinction is based upon the categorisation and what is depicted. Were I to identify a single sentence for the 15 counts of aggravated disseminating and eight counts of dissemination just mentioned, there would be some concurrency and ultimately a need to consider totality. There is a single count of aggravated producing child exploitation material on the third Information count 122. This count relates to three videos found on a OneDrive account. The three videos are between about one minute and six minutes long. In one video, a child aged about 12 is masturbating while a dog licks his anus. In another you and the same child are masturbating over a video call, again while -- 53 of 63 -- [2024] SASC 84 Kimber J 52 a dog licks his anus. In the third video, the same is taking place. The three videos were made on the same day, one after another. I identify for that count a notional starting point of three years. There are eight counts of aggravated obtaining child exploitation material, seven counts on the second Information; counts 10, 17, 18, 22, 25, 30 and 34 and one count on the third Information count 106. Again I will not detail every offence. I will just give examples. As will be obvious, some of the material you obtained was particularly depraved. The notional starting points are between one year and three years. This reflects the material depicted and the categorisation. Some of the material, as I have said, is particularly depraved but this offence has a lesser maximum than your disseminating offences. Count 10 on the second Information involves a 13-year-old boy with whom you were communicating. There are three other offences involving him. Count 10 involves you asking him for a ‘pic’. The child then sends you an image of a 12 or 13-year-old boy naked. I identify a notional starting point of 12 months. Count 17 on the second information occurs in the context of you communicating with a person, presumably an adult male, about engaging in sexual intercourse. Count 17 involves you being sent two videos; one of a toddler fellating an adult, another of a baby being sexually abused. I identify a notional starting point of two years and six months. -- 54 of 63 -- [2024] SASC 84 Kimber J 53 Count 22 on the second Information occurred in the context of you communicating with a person who appears to be a member of a group you were expressing an interest in joining. This is obviously a group which accesses and shares child exploitation material. You were told by the person with whom you were communicating that 'anything goes'. The other person mentions 'rape' and 'necro', among other things. You articulate your interest by replying to this person 'fuck yes, I've been searching for this stuff 4 eva'. You were then told there is a constant interest in better 'rape and child abuse videos' and you were asked to share any material. You agreed. You are then sent the five videos the subject of count 22. Two are of babies being raped while appearing to be asleep or dead. One is of a toddler being abused and another is of a toddler being strangled. I identify a notional starting point of three years. Count 34 on the second information occurred in the context of you communicating with another like-minded person. You discuss sexual acts with children. This person then sends you five videos; four videos of babies being raped and one of a toddler being drugged and raped. I identify a notional starting point of three years. -- 55 of 63 -- [2024] SASC 84 Kimber J 54 There are six counts of obtaining child exploitation material. There is one count on the second Information, count 35, and on the balance are on the third Information. Again I will just give some examples of the type of behaviour. Count 35 on the second Information involves you being sent a video of two children aged about 14 or 16 who are engaged in sexual activity. Counts 66 on the third Information involves a child with whom you are communicating sending you two images of his buttocks being separated. Count 113 on the same Information involves a child with whom you are communicating sending you 13 images of them and others naked including showing his penis and anus. This is the same child with whom you were communicating which is the subject of counts 112, 114 and 115 on the third Information. Count 126 on the third Information involves a person with whom you are communicating sending you a video of a boy aged about 15 who is defalcating into his hand. For count 126, I identify a notional starting point of two years. For the remaining five counts of obtaining child exploitation material just mentioned, I identify a separate starting points of between 12 months and 18 months. This reflects the material depicted and its categorisation. For the eight counts of aggravated obtaining child exploitation material just mentioned and the six counts of obtaining child exploitation material just mentioned, were I to identify a single sentence there would be some concurrency and the need ultimately to consider totality. -- 56 of 63 -- [2024] SASC 84 Kimber J 55 There are four counts of aggravated possession of child exploitation material and four counts of possession of child exploitation material. Four of those eight counts are on the first Information counts 1-4 inclusive. Four are on the third Information counts 138-141 inclusive. I begin with the first Information. Counts 1 and 2 involve child exploitation material on an iPhone found at your home. Count 1 is an offence of aggravated possession of child exploitation material. That offence involves 39 images and 72 videos. The bulk of those images were in category 1 but there were some in categories 2-4 inclusive. More than half of the videos were in category 4 but there were some videos in categories 1-3 and two videos in category 5. I identify a notional starting point of two years and six months. Count 2 is an offence of possessing child exploitation material. That offences involves 34 images of which 29 were in category 1 with the balance in categories 2, 3 and 5. That offence also includes 63 videos across categories 1-5 inclusive, with 27 in category 5, and the bulk of the remainder in categories 1 and 2. I identify a notional starting point of two years. Counts 3 and 4 involve child exploitation material on a Seagate hard drive. Count 3 is an offence of aggravated possession. There were 465 images across categories 1-6, there were 256 in category 1, 108 in category 4 and 6 in category 5 with the balance split between categories 2 and 3. There were 56 across categories 1-4 inclusive 59 with more than half in category 4. I identify a notional starting point of three years. -- 57 of 63 -- [2024] SASC 84 Kimber J 56 Count 4 is an offence of possession. There were 105 images across categories 1-6 with one image in category 6, two in category 5, 35 in category 4 and 37 in category 1. The balance were approximately evenly split across categories 2 and 3. There was one video in category 4. I identify a notional starting point of two years. I move to the third Information. Counts 138 and 140 relate to material found on two external hard drives. Count 138 is an aggravated offence. There were 54 images and videos. There were four images and videos in category 1, 11 videos in category 2, six images and videos in category 3, 31 videos in category 4 and two videos in category 5. I identify a notional starting point of two years and six months. Count 140 is a basic offence. There were 13 images and two videos. 12 images in category 1, one image in category 4, one video in category 1 and one video in category 4. I identify a notional starting point of 18 months. Count 139 and 141 relate to material on a laptop. Count 139 is an aggravated offence. There are 18 images and 44 videos. There were 13 in category 1, three in category 2, 11 in category 3 and 35 in category 4. The notional starting point is two years, six months. Count 141 is a possessing child exploitation offence material involving 17 images and four videos. There were eight images in category 1, seven images in category 3 and six images and videos in category 4. The notional starting point is 18 months. -- 58 of 63 -- [2024] SASC 84 Kimber J 57 For the eight offences of possession just mentioned, were I to identify a single notional sentence there would be substantial concurrency. The counts involve child exploitation material on fewer devices than there are counts, and they were in your possession at the same time in the same place. There are several intervention orders. They are in terms which will be provided to you and I do not propose to read them out. Mr Brooker, I invite you to stand because I am now going to turn to your head sentence and non-parole period. For each offence I have identified a notional starting point. In Annexure A, I have set out that notional starting point and identified the discount given from that notional starting point. As I have said, I have given you the full discount to which you are entitled. I have carefully considered each notional sentence after the full reduction. There is obviously the need to consider concurrency in arriving at a single sentence. When dealing with so many offences it is meaningless to set that out by giving examples or illustrations. The totality principle also so obviously applies. There is a potential approach recommended before the obligation to identify a single sentence for each offence was imposed by Parliament that can be adopted in some cases. That approach is the grouping of offences together which have the same discount. -- 59 of 63 -- [2024] SASC 84 Kimber J 58 It is not an approach which was mandatory before Parliament imposed the obligation just mentioned. I do not consider it to be mandatory in this case. There are five separate discounts in this case. There are 182 counts. It will be meaningless to undertake that exercise. Given the number of counts and five different reductions, to group them in that way would be, in my view, artificial. The enormity of the offending can readily be indicated by considering just the following potential approach: one might first start with the maintaining offences and the offence involving KP. For KP that is a notional starting point of 14 years and then a notional sentence of 10 years and six months after the reduction. Then each of the other offences of that type, each a separate victim, the only links are the underlying motive, the similar time period and in some respects the method. Separate victims might usually warrant accumulation of the notional reduced sentences for each. For the five maintaining offences that would be in excess of 40 years already. One might then bring to account the 19 counts involving dissemination of the material involving KP. Whilst some concurrency between those 19 counts would be appropriate, any single sentence identified for those 19 counts might be accumulated. At best I would only make it partially concurrent with the maintaining offence for KP. -- 60 of 63 -- [2024] SASC 84 Kimber J 59 One might then turn to 107 counts of communicating. Again different victims in those counts. The commonality including the timing and the motive and, of course, some communication offences within that 107 involving the same victim. The commonality includes the time and the motive. There would need to be some concurrency between those offences given the timing and, as I say, that some involved the same victim. Just stopping there, and the offending does not stop there, whatever point was reached by accumulating the offences I have just mentioned and allowing some concurrency would require me to consider the principle of totality once whatever end point was reached. Given the number of offences, I do not consider it appropriate to undertake the exercise of working out what offences might be accumulated, or to specifically identify which might be made concurrent and to what extent. Given the number of offences, I consider that the appropriate approach is to make an overall assessment of the gravity of the offences, balance that with your personal circumstances, ensure that you get the full benefit of your pleas of guilty, reflect on the notional sentences after the full reductions, and recognise that the sentencing principles of concurrency and totality exist to ensure that any final sentence must be proportionate to the gravity of the offending and not be crushing. -- 61 of 63 -- [2024] SASC 84 Kimber J 60 I keep in the forefront of my mind that the single sentence must have full regard for the pleas of guilty and the entirety of every reduction to which you are entitled. You have admitted offending in relation to children who have not been identified. By pleading guilty, you have avoided the need for children who have been identified to be further involved and to give evidence. Substantial resources have also been saved. Your pleas of guilty are the most significant matter in your favour. Otherwise, there is little that can be said which is positive. The positive aspects of your life, including your lack of prior offending, are overwhelmed by your prolific offending. You pose a grave risk to children, particularly adolescent boys. If you are to reform, the journey will be a long one. The guilty pleas and your acceptance of responsibility are only a start, but an important one. As will be obvious from the summary that I have given, viewed as a whole, your offending is exceptionally grave. The victims are almost too many to count. I will not repeat what I said about offending against children towards the beginning of my remarks. I simply observe that you have placed at risk the wellbeing and future potential of every victim. The need for denunciation and personal deterrence is great. Some of your offending confirms what is well known, that is, that there are other like-minded -- 62 of 63 -- [2024] SASC 84 Kimber J 61 people in our community who pose a risk to children. Networks of people prepared to access, share and receive images of children. The sentence I impose must attempt to deter others. I identify a single head sentence of 36 years. Having reflected on that sentence and the need for it to be proportionate and not crushing, I do not regard any further reduction as appropriate. I will fix a non-parole period. It must be at least four-fifths of the head sentence. I fix a non-parole period of 29 years. The head sentence of 36 years and the non-parole period of 29 years will commence on 26 August 2020. ADJOURNED 3.45 P.M. -- 63 of 63 --