Commonwealth Director of Public Prosecutions v CCQ [2021] QCA 4

SUPREME COURT OF QUEENSLAND CITATION: Commonwealth Director of Public Prosecutions v CCQ [2021] QCA 4 PARTIES: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (appellant) v CCQ (respondent) FILE NO/S: CA No 61 of 2020 SC No 1471 of 2019 DIVISION: Court of Appeal PROCEEDING: Sentence Appeal by Director of Public Prosecutions (Cth) ORIGINATING COURT: Supreme Court at Brisbane – Date of Sentence: 18 February 2020 (Wilson J) DELIVERED ON: 22 January 2021 DELIVERED AT: Brisbane HEARING DATE: 30 October 2020 JUDGES: Morrison and Philippides JJA and Crow J ORDERS: 1. Allow the appeal. 2. Set aside the sentence imposed in respect of count 1 on 18 February 2020 insofar as it ordered that the offender be imprisoned for a period of 12 years, and that parole eligibility be fixed at 18 February 2026. 3. Order that the respondent be imprisoned for a period of 16 years. 4. Pursuant to s 19AB(1) of the Crimes Act 1914 (Cth), order that the date the respondent is eligible for parole be fixed at 18 February 2030 (10 years from 18 February 2020). 5. Otherwise affirm the orders made on 18 February 2020. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY – where the respondent was sentenced in respect of eight offences, all concerned with child pornography or child exploitation material – where a plea of guilty was entered to each of the counts – where the learned sentencing judge selected Count 1 as the offence upon which to impose a sentence that reflected -- 1 of 41 -- 2 the overall criminality of the offending – where no complaint was made about that approach, either below or before this Court – where the sentence imposed on Count 1 was 12 years’ imprisonment (to commence on 18 February 2020) – where in respect of counts 1 to 7, pursuant to s 19AB(1) of the Crimes Act 1914 (Cth), a non-parole period of six years’ imprisonment was fixed – where in respect of count 8, the five years’ imprisonment was to be suspended after serving 20 months’ imprisonment, operational for a period of five years – where the Commonwealth Director of Public Prosecutions appeals against the sentences imposed on the basis that both the head sentence of 12 years’ imprisonment and the non-parole period of six years are manifestly inadequate – where the Crown submitted that the overall sentence imposed and the length of the non-parole period were manifestly inadequate and, having regard to all the relevant sentencing factors, this Court would be driven to conclude that there must have been some misapplication of principle in the exercise of the sentencing discretion – whether the overall sentence imposed and the length of the non-parole period were manifestly inadequate Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth), s 33 Crimes Act 1914 (Cth), s 16A, s 19AB Criminal Code (Cth), s 473.1 Criminal Code (Qld), s 207A Director of Public Prosecutions v Karazisis (2010) 31 VR 634; [2010] VSCA 350, cited Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited R v Damian Lee Dowd, unreported, Supreme Court of Queensland, Ryan J, 8 May 2018, distinguished R v Hickey [2011] QCA 385, cited R v Ireland; Ex parte Attorney-General (Qld) [2019] QCA 58, cited R v KAT [2018] QCA 306, distinguished R v Vantoosten [2009] QCA 54, cited COUNSEL: L K Crowley QC, with D Whitmore, for the appellant M F Bonasia for the respondent SOLICITORS: Director of Public Prosecutions (Commonwealth) for the appellant George Criminal Lawyers for the respondent [1] MORRISON JA: On 18 February 2020 the respondent was sentenced in respect of eight offences, all concerned with child pornography or child exploitation material. A plea of guilty was entered to each of the following counts: (a) Count 1: aggravated offence – offence involving conduct on three or more occasions and two or more people; (b) Count 2: using a carriage service to transmit child pornography material; -- 2 of 41 -- 3 (c) Count 3: using a carriage service to transmit child abuse material; (d) Count 4: using a carriage service to solicit child abuse material; (e) Count 5: using a carriage service to cause child pornography material to be transmitted to self; (f) Count 6: using a carriage service to solicit child pornography material; (g) Count 7: using a carriage service to access child pornography material; and (h) Count 8: knowingly possess child exploitation material. [2] Counts 1 to 7 were Commonwealth offences under the Criminal Code (Cth). Count 8 was the sole State offence under s 228D of the Criminal Code (Qld). [3] The learned sentencing judge selected count 1 as the offence upon which to impose a sentence that reflected the overall criminality of the offending. No complaint was made about that approach, either below or before this Court. The sentences imposed were as follows: (a) Count 1 – 12 years’ imprisonment (to commence on 18 February 2020); (b) Count 2 – 10 years’ imprisonment; (c) Count 3 – five years’ imprisonment; (d) Count 4 – two years’ imprisonment; (e) Count 5 – two years’ imprisonment; (f) Count 6 – two years’ imprisonment; (g) Count 7 – five years’ imprisonment; and (h) Count 8 – five years’ imprisonment. [4] In respect of counts 1 to 7, pursuant to s 19AB(1) of the Crimes Act 1914 (Cth), a non-parole period of six years’ imprisonment was fixed. In respect of count 8, the five year term was to be suspended after serving 20 months’ imprisonment, operational for a period of five years. [5] The Commonwealth Director of Public Prosecutions appeals against the sentences imposed on the basis that both the head sentence of 12 years’ imprisonment and the non-parole period of six years are manifestly inadequate. [6] Mr Crowley QC, appearing for the Crown, concedes that Crown appeals against sentence are exceptional and interference with the sentence requires demonstration of error on the part of the sentencing judge. He submitted that the overall sentence imposed and the length of the non-parole period were manifestly inadequate and, having regard to all the relevant sentencing factors, this Court would be driven to conclude that there must have been some misapplication of principle in the exercise of the sentencing discretion.1 Putting it another way, but making the same point, he submitted that in all the circumstances the sentence imposed was so unreasonable or plainly unjust that it is apparent there has been a failure to properly exercise the sentencing discretion.2 1 R v Pham (2015) 256 CLR 550 at [28]; [2015] HCA 39. 2 House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. -- 3 of 41 -- 4 Relevant sentencing principles [7] Section 207A of the Criminal Code (Qld) defines the offending material as “child exploitation material”. The Commonwealth Criminal Code as it stood in 2017 referred to “child abuse material” and “child pornography material”: s 473.1. The term “child abuse material” focused on torture, cruelty and physical abuse, whereas “child pornography material” focused on sexual content similar to the definition of “child exploitation material” in the Queensland Criminal Code. On 20 September 2019 the Commonwealth combined the two types of material under the term “child abuse material”.3 The explanatory notes to the Bill reveal that it was considered that the term “child pornography material” was no longer appropriate or accepted terminology, and attaching the word “pornography” was a barrier to conveying the seriousness and gravity of the offences, the inherently abusive nature of the material and the harm faced by the children. It also avoided any inadvertent legitimisation of offending material by associating it with legal forms of adult pornography.4 [8] Before this Court there was no dispute as to the general principles for sentencing in cases involving child pornography or child exploitation material.5 Drawing on what was said by this Court in R v Howe6 and by the New South Wales Court of Criminal Appeal in Lyons v R,7 those principles include: (a) general deterrence is the primary sentencing consideration for offending involving child abuse material given the prevalence and ready availability of pornography involving children, particularly on the internet, and the need to protect children from sexual abuse;8 (b) there is a paramount public interest in promoting the protection of children as possession of child pornography is not a victimless crime, the possession of child abuse material creates a market for the continued corruption and exploitation of children, and children are sexually abused in order to supply the market;9 (c) the fact that an offender has no relevant prior convictions carries less weight in sentencing for child pornography offences;10 (d) offending involving child abuse material occurs on an international level, and the advent of the internet as a means to access child abuse material means both 3 Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth), Sch 7. In the process the offences formerly under s 474.19 (counts 2, 5, 6 and 7) were repealed, as they were caught by exiting offences using the term “child abuse material”: s 33. 4 Explanatory Memorandum to the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 (Cth), paragraphs 39-42. 5 For present purposes there is no difference between the Queensland Criminal Code and the Commonwealth Criminal Code in the terms or the nature of the material to which they refer. In these reasons, for ease of reference, I shall refer to the material in each count simply as “child abuse material” or “CAM”. 6 [2017] QCA 7 at [25]. 7 [2017] NSWCCA 204 at [76]. 8 Assheton v R (2002) 132 A Crim R 237 at [35]; [2002] WASCA 209; R v Gent (2005) 162 A Crim R 29 at [65] and [100]; [2005] NSWCCA 370; Commonwealth Director of Public Prosecutions v D’Alessandro (2010) 26 VR 477 at [21]; [2010] VSCA 60; R v Jongsma (2004) 150 A Crim R 386 at 405 [35]-[36]; [2004] VSCA 218. 9 R v Coffey (2003) 6 VR 543 at [552]; [2003] VSCA 155; R v Cook; Ex parte Commonwealth DPP [2004] QCA 469 at [21]; R v Jongsma at [14]; Heathcote (a pseudonym) v R [2014] VSCA 37 at [40]; and R v Jones (1999) 108 A Crim R 50 at [9]; [1999] WASCA 24; R v Gent at [29] and [43]; Commonwealth Director of Public Prosecutions v D’Alessandro at [23]. 10 Mouscas v R [2008] NSWCCA 181 at [37]; Commonwealth Director of Public Prosecutions v D’Alessandro at [21]; Heathcote at [35]. -- 4 of 41 -- 5 that such offending is becoming increasingly prevalent,11 and that it is difficult to detect, given the anonymity the internet can provide;12 (e) the fact that an offender did not pay to access a child abuse material website, or was not involved in the distribution or sale of child abuse material, does not mitigate the offending;13 (f) the subjective circumstances of an offender must not overshadow the objective gravity of the offences;14 and (g) in a case of dissemination, the number of persons to whom the material is distributed is relevant.15 [9] There are a number of relevant considerations when assessing the objective seriousness of offences involving child abuse material, including:16 (a) the nature and content of the material, particularly the age of the children and the gravity of the sexual activity depicted, including the extent of any cruelty or physical harm to the children that may be discernible from the material; (b) the number of items or images possessed, accessed or transmitted; (c) whether the material is for the purpose of sale or further distribution; (d) in a case of distribution or transmission, the number of persons to whom the material was transmitted; (e) whether any payment or other material benefit (including the exchange of child pornography material) was made or received for the acquisition or transmission of the child pornography material; (f) whether actual children were involved in the creation of the material, and the number of children depicted and thereby victimised; (g) the length of time over which the offending occurred; and (h) the degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material. Factual synopsis [10] In due course I will return to the circumstances of each offence and to the details of the material involved. For present purposes, however, the following synopsis serves to indicate the nature of the case. [11] Between 1 January 2016 and 18 November 2017 the respondent used a number of messaging and social media applications (including Telegram, Kik and normal email channels) to transmit, solicit, access and cause to be transmitted to himself, child abuse material, and in that period he possessed a quantity of child abuse material on electronic devices or online accounts. 11 Assheton v R at [35]-[36]; R v Jones at [2]. 12 Mouscas v R at [31]; R v Booth [2009] NSWCCA 89 at [43]. 13 R v Coffey at [30]. 14 R v Porte [2015] NSWCCA 174 at [128]. 15 Minehan v R [2010] NSWCCA 140 at [94]. 16 R v Jongsma at 400 [28]; R v Gent at 49 [99]; Commonwealth Director of Public Prosecutions v D’Alessandro at 483-484 [21]; DPP (Cth) v Guest [2014] VSCA 29 at [25]; Minehan v R at [94]. -- 5 of 41 -- 6 [12] The offences were committed for sexual gratification. The respondent’s self- professed sexual interest was in the abuse, exploitation and degradation of very young children, particularly babies and toddlers. The material showed very young children, including newborn babies and toddlers, subjected to acts of rape, incest, bestiality and extreme cruelty. The nature of his preference was indicated by his responses to various persons, as being interested in “0 to five” and “I love baby and brutal”. [13] On 18 November 2017 police executed a search warrant at the respondent’s residence. Initially he told police he had nothing to declare. While providing passwords for his online accounts in compliance with a court order, when questioned by police, he denied ever using the application “Kik” or having ever exchanged images of children using social media accounts. Even when police found child abuse material on SD cards at his residence, the respondent initially continued to deny any knowledge, telling police “I’ve told you as much as I know”. Ultimately, however, the respondent made admissions to accessing and possessing CAM. [14] The bare recitation of the circumstances of each offence are as follows: (a) Count 1: between 7 June and 8 November 2017 the respondent made 84 CAM files available to multiple other individuals on each of 33 occasions across 13 different dates; (b) Count 2: between 4 June and 15 November 2017 the respondent transmitted 1,182 CAM files to 104 other individuals; the majority of those files depicted babies (including newborns) and toddlers; (c) Count 3: on about 9 November 2017 the respondent transmitted five CAM files to one person; those images included depictions of mutilated deceased babies; (d) Count 4: on about 9 November 2017, after transmitting the five images the subject of count 3, the respondent asked the individual to whom he sent those images, “What sick photos do you have?”; (e) Count 5: between 15 June and 14 November 2017 the respondent received 742 CAM files from 50 individuals to whom he had transmitted CAM; (f) Count 6: between 5 June and 8 November 2017 the respondent solicited CAM from eight other individuals; (g) Count 7: between 1 January 2016 and 18 November 2017 the respondent accessed a substantial amount of CAM over the internet, including as many as 5,646 CAM files from the Telegram application, approximately 28 per cent of which was category 4 or category 5 material; and (h) Count 8: an examination of the respondent’s electronic devices and online accounts reveal that he possessed 26,336 CAM files (23,413 of which were images, and 2,922 of which were videos) across six different electronic devices and online accounts, including his laptop and mobile phone, and a telegram account and email account. Sentencing proceedings below [15] The sentencing hearing commenced on 5 December 2019. It proceeded on an agreed statement of facts which set out the relevant details of the nature and circumstances -- 6 of 41 -- 7 of the offences. Each side provided the learned sentencing judge with written submissions and the respondent’s submissions included a letter from a consulting psychologist, Ms Binns. As will become apparent, the respondent’s Counsel only sought to use that letter in a restricted way, namely to demonstrate that following his arrest the respondent had participated in more than 20 counselling sessions. The letter was not relied upon to establish any particular mental condition at the time of the offending, or since. [16] For reasons that are not presently relevant the matter was adjourned until 18 February 2020, with each side providing further written submissions in relation to those cases contended to be comparable. [17] Ultimately only two cases were referred to before the learned sentencing judge, namely R v KAT17 and R v Dowd.18 Ultimately, each side submitted that the character of the current offending was more serious than either KAT or Dowd. In the course of her Honour’s sentencing remarks the following matters were noted as being relevant to the assessment of the seriousness of the offending: (a) each of counts 1-3, 5 and 6 were rolled-up charges, reflecting many instances of offending, each capable of constituting separate charges; the criminality involved in those charges was greater than with a charge involving one episode of criminal conduct; (b) the offending involved eight separate and distinct instances and types of “extremely serious online child exploitation offending”; (c) the content of the material was particularly serious, predominantly depicting very young female children, including “a plethora of images [of] babies and toddlers being subject to the most violent despicable sexual depravity”, and much of the material was category 4 or 5; (d) the material depicted hundreds of individual child victims, each of whom were abused in order to produce the material, and who must “live with their images potentially being swapped, traded, and accessed perpetually”; (e) the respondent played an active role in the child pornography market; (f) the respondent did not profit from, or pay for, the material; however, that did not mitigate the offending, as swapping of the images could properly be regarded as commercial activity even without financial gain; (g) the comments made by the respondent whilst soliciting, transmitting or making material available demonstrated his “interest in the physical and sexual abuse of very young children, including rape, incest, bestiality, and acts of extreme cruelty”; (h) similarly, the comments made by the respondent in the course of transmitting the material to others or causing others to transmit the material to him, demonstrated his sexual interest in very young children, “including children being subjected to immense cruelty, degradation and contempt”; in this respect the learned sentencing judge referred to examples such as “I love baby and brutal”, and “I love it when they piss when they’re excited”; and 17 [2018] QCA 306. 18 R v Damian Lee Dowd, unreported, Supreme Court of Queensland, Ryan J, 8 May 2018. -- 7 of 41 -- 8 (i) the offending was not spontaneous or isolated, but occurred over a lengthy period and involved many instances of separate offending. [18] The learned sentencing judge looked at the respondent’s personal background and took into account a number of subjective mitigating features. They included: (a) the plea of guilty, which saved the need for an expensive trial, and which demonstrated a willingness to co-operate in or facilitate the administration of justice; (b) the lack of any criminal history; (c) the fact that the respondent had co-operated with some aspects of the investigation, and made admissions regarding the length of time over which he had been accessing CAM on the internet (that forming the basis for the start date for count 7); (d) that he had engaged in counselling while on bail and had some prospects of rehabilitation; and (e) he had been on bail for two years prior to his sentence, during which time he had not reoffended. [19] The sentencing remarks occupied 27 pages of transcript and are quite detailed. In what follows I will refer to some aspects of those remarks, though it has to be borne in mind that the contention on behalf of the Crown was not that there was any specific error, but simply that the head sentence and non-parole period on count 1, when seen in the proper context of the objective seriousness of the offending, bespoke an error because they were manifestly inadequate. [20] At the outset the offending was described as “lengthy, widespread, and serious and depraved”. What followed was a relatively bare summary of each of the eight counts, though the character of the images involved was described either by its general categorisation (“where the majority of the material depicted female babies, including newborns and toddlers”), or by more serious characterisations (“which included images of the utmost cruelty, such as mutilated, deceased babies”). At the end of that brief summary her Honour noted that she accepted that the comments made by the respondent while soliciting, transmitting or making material available “demonstrates your interest in the physical and sexual abuse of very young children, including rape, incest, bestiality, and acts of extreme cruelty”.19 Her Honour then expressed the conclusion that the conduct represented “a serious example of offending of this nature”.20 [21] Her Honour then referred to ten considerations applicable to the sentencing for child pornography and child abuse material, drawn from decisions of appellate courts. They included: (a) the objective seriousness of the offending is ordinarily determined by reference to six factors: (i) the nature and content of the material, and in particular the age of the children and the gravity of the sexual activity depicted, including the extent of any cruelty or physical harm occasioned to the children;21 19 AB 99 lines 13-14. 20 AB 99 line 17. 21 As to this consideration her Honour noted the Crown submission that the nature and content of the material demonstrated “an extremely depraved and serious example of offending”: AB 100 line 31. -- 8 of 41 -- 9 (ii) the number of items or images possessed;22 (iii) whether the material was for the purpose of sale or further distribution;23 (iv) whether the offender profited from the offence;24 (v) the number of children depicted, and thereby victimised;25 and (vi) the length of time for which the material was possessed;26 (b) general deterrence is the primary consideration for offending involving child pornography, given the prevalence and ready availability of pornography involving children on the internet, and the need to protect children from sexual abuse; (c) where general deterrence is the primary sentencing principle, an offender’s personal factors in mitigation (such as good character, age, prospects of rehabilitation) must be given less weight; (d) specific deterrence, denunciation, punishment, protection of the community are also important; and (e) the maximum penalty for the offences provides an indication that they are viewed by parliament as being of the utmost seriousness; charge 1 carried a maximum penalty of 25 years’ imprisonment, the remaining Commonwealth charges were punishable by 15 years’ imprisonment, and the State offence, by 14 years’ imprisonment. [22] The learned sentencing judge then noted that the respondent was to be sentenced on “eight separate and distinct instances and types of extremely serious online child exploitation offending”.27 What then followed was a more detailed consideration of each count, referring to the nature of the offending and its objective seriousness. The offences were dealt with sequentially. At this point I need only refer to counts 1 and 2. [23] It was noted that count 1 involved making 84 child pornography files (consisting of 80 images and four videos) available to multiple other individuals. That covered 33 instances of making child abuse material available to others on 13 individual days over a period of five months. Her Honour noted that the offending was “not isolated, nor spontaneous” and that the material was made available to 12 different online user groups, with each group having multiple users who could access it. Four of the groups were “supergroups” on the software called “Telegram”, each of which could have up to 10,000 members (by July 2017) or 30,000 members (by October 2017). Her Honour then said:28 “The Crown says the potential for international dissemination for the material would be obvious. However, the Crown did put this submission into a proper context, and that is, at the relevant times, the 22 As to this her Honour noted that it was “not an insignificant amount, but it cannot be said that it is the largest amount that you could see”: AB 100 line 33. 23 Her Honour noted that the respondent’s material was not for sale, that he did access the material and then distributed it. 24 Here there was no financial profit alleged, but the material was swapped and traded with others. 25 Here her Honour noted the Crown submission that this was “towards the highest level”: AB 100 line 42. 26 Based on admissions this was as long as nearly two years: AB 100 lines 43-46. 27 AB 102 line 8. 28 AB 102 lines 26-35. -- 9 of 41 -- 10 Crown did not know the number of members, as they readily admit it is such a fluctuating phenomenon. The Crown does not know if you knew how many members were in the groups. Only the administrator of the groups would know. You were not the administrator. These groups had the ability to have 30,000 members, but the Crown does not know if it did. And I take that into account. As the Crown submitted, the offender does not know how many, but he knew he was making it available to multiple people.” [24] I pause to note several things about that passage in the sentencing remarks. Firstly, annexure A to the agreed schedule of facts,29 when correlated with the Telegram groups identified in the agreed schedule of facts,30 permits the nine Telegram groups involved in respect of count 1 to be identified, and of them, the four “supergroups”. They are: [Redacted] (a supergroup), [Redacted] (a supergroup), [Redacted] (a supergroup), [Redacted] (a supergroup). [25] Secondly, the four supergroups are recorded as each having a particular number of members at the time of police investigation. Police investigation commenced in September 2017, and the warrant to search the respondent’s residence was executed on 18 November 2017. By reference to the list at AB 149, it becomes apparent that three of the four supergroups had specific membership numbers, totalling 590 members at the time of police investigation. Therefore, whilst the numbers in a particular supergroup may not have been known from time to time, the agreed facts allowed identification of 590 members of supergroups in respect of count 1, at times within the period of the offence. [26] Thirdly, the comments made by her Honour above were not limited to the supergroups. Count 1 was not limited in that way. Whilst her Honour was referring to all the groups in annexure A, only some of which are reflected in the list at AB 149, her Honour’s finding that the respondent was “not the administrator” was correct if restricted to the groups in annexure A to the schedule of facts, but incorrect by reference to all of the groups in all of the offending. The list at AB 149 was applicable to count 7, the offence of accessing child abuse material. One of those groups was called “[Redacted]”, identified as having 61 members and being a group in respect of which the respondent was administrator, with the ability to remove members from the group. The learned sentencing judge later adverted to the fact that the respondent was “not the administrator of the supergroup”,31 a comment again made in respect of count 1. However, nowhere else in the sentencing remarks did her Honour advert to the fact that in respect of one group of 61 members the respondent’s participation was not merely as a contributor of material or a recipient of material, but actually as an administrator. [27] Mr Bonasia of Counsel, appearing for the respondent before this Court, very properly conceded that he had been responsible for leading her Honour into error by submitting that the respondent was not an administrator of any group. Mr Bonasia also conceded that there was a factual error insofar as the sentence proceeded on the basis that the respondent was not an administrator at any time. 29 AB 159-163. 30 AB 149. 31 AB 122 line 27. -- 10 of 41 -- 11 [28] Her Honour noted that one quarter of the material that was made available by the respondent was within categories 4 and 5, and “demonstrated an extraordinary level of debasement and cruelty” characterised by several examples identified in the comments. Her Honour then noted that the majority of material made available to other users was in category 1 or 2. Her Honour then made the point that category 1 images “are not innocuous, and encompass a wide range of gravity, including, as was the case in that here, naked children in sexualised poses, close-up images of children exposing their vagina and anus, and children with semen on their faces”.32 [29] Her Honour then characterised the nature of the images in category 1 in this way:33 “The moral depravity and wickedness of images classified as level 1 seriously detracts from any submission that the gravity of offending is materially diminished because the vast majority of images were in the lowest category. I note that the material showed that physical harm was caused to some of the children depicted.” [30] Her Honour then turned to count 2, the offence of using a carriage service to transmit 1,182 child pornography files, of which 189 (or 16 per cent) were videos. Her Honour noted that both sides had submitted the conduct was arguably the most serious. Over a period of five months the material was sent to 104 other users, and in that time only one occasion consisted of transmission to a single user. That material was transmitted from three different accounts. The respondent’s profile photograph on the Telegram account was of two young naked children simulating sex. Several users had commented on that photograph, prompting the respondent to tell them that it was a photo of children who were at a party that he attended. [31] Her Honour described the content in respect of count 2 in this way:34 “The majority of the material depicted female babies, including new borns [sic] and toddlers. Fifty-one per cent, or the majority of material, was in a [sic] categories 4 and 5, depicting penetrative sexual activity between adults and children, often babies, bestiality, sadism, bondage, and torture. Material in categories 1 to 3 also comprised images and videos of babies and toddlers, including images and videos of children covered in semen. The videos in categories 4 and 5 range in duration from 30 seconds to in excess of 23 minutes. The videos, many of which included sound, and the images, are real life depictions of the rape and abuse of children, and includes the video [Redacted], which the Crown submits is, without doubt, one of the most depraved and vile examples of child abuse material ever made and published. I note that the defence has not challenged such a characterisation of this video.” [32] The learned sentencing judge referred to the personal circumstances of the respondent, noting: (a) he was 41 years old, and between 37 and 38 at the time of offending; (b) his parents separated when he was about three and he had a destructive relationship with his new step-mother, eventually being placed into the care of 32 AB 103 lines 9-13. 33 AB 103 lines 15-18. 34 AB 103 line 36 to AB 104 line 2. -- 11 of 41 -- 12 the Department of Community Services; his childhood was prejudiced by physical, emotional and sexual abuse, both at home and in foster care; (c) he left school during year 11, and completed qualifications in bricklaying and asbestos removal, and for quite some years had been working in landscaping; (d) her Honour rejected a contention that the reason he had child exploitation material was “to desensitise [himself] from that memory”;35 (e) he was in a current relationship, and his partner was supportive of him, notwithstanding being aware of the offending; (f) from December 2017 he had attended 20 sessions of counselling with a psychologist, had engaged well in the therapy; he had continued with the counselling services notwithstanding the end of Medicare allocated funding for them; (g) he had no criminal history and had not re-offended in the two year period while on bail; (h) he had pleaded guilty, thus avoiding the requirement and expense of a trial; and (i) he had co-operated in some respects with the investigation and made admissions on the length of time he had been accessing child pornography on the internet; those admissions formed the basis for the commencement date for count 7. [33] The learned sentencing judge took the approach that a global representative sentence would be imposed in respect of count 1, which carried the highest maximum penalty. That approach was in accordance with the decision in R v Nagy.36 The consequence was that her Honour said she would impose a sentence in respect of count 1 that would be “higher than that which would have been fixed, had it stood alone”.37 In that way her Honour determined to take into account the overall criminality in the head sentence on count 1. [34] Her Honour then turned to the utility of any comparable cases decided at appellate level. There were none and the only two decisions relied upon were R v KAT38 and R v Dowd.39 In that respect her Honour noted that the respondent’s Counsel acknowledged that the present offending was more serious than in both Dowd and KAT. That position was maintained before this Court. [35] Notwithstanding that neither KAT nor Dowd were considered as comparable authority, her Honour considered each of them in some detail. That included examining the number of files or images according to the offences in those cases and the number of people or groups to whom the images were disseminated. As well, particularly in relation to KAT, her Honour looked at the type of material in the various categories in that case. [36] Given her Honour’s finding that there were “no immediate appellate sentences directly referable, or factually closely similar to the nature and type of offending” in 35 AB 106 line 36. 36 [2003] QCA 175; [2004] 1 Qd R 63. 37 AB 108 line 14. 38 [2018] QCA 306. 39 Unreported, Supreme Court of Queensland, Ryan J, 8 May 2018. -- 12 of 41 -- 13 the present case, it is difficult to understand the utility of examining the factual detail of either KAT or Dowd or the sentences imposed in them. Ultimately each of the Crown and defence contended that neither was truly comparable. Indeed, her Honour concluded that each was of “limited assistance in determining the appropriate penalty”.40 In the circumstances, consideration of the Crown’s submission that the conduct in KAT was “at least half as serious” as the present case and the following discussion of whether that meant a sentence in excess of 15 years, was irrelevant and likely to distract from the proper course. [37] Her Honour then turned to “a number of serious features of this case that are relevant to the ultimate sentence”:41 (a) the content of the material, predominantly depicting very young female children and including multiple images of “babies and toddlers being subject to the most vile and despicable depravity”;42 (b) referring to R v Oliver43 her Honour observed that the age of the children involved may be an aggravating feature, particularly where the age was such that the impact of the conduct and the likelihood of physical injury was apparent; (c) the number of individual child victims; (d) the fact that the respondent played “an active role in the child pornography market” by both making child abuse material available to many others and causing it to be transmitted to himself; his role was not passive; (e) he had not profited from his offending and there was no evidence that he had paid for the material; however, her Honour accepted this did not mitigate the offending activity, because the swapping of images could be regarded as commercial activity, albeit without financial gain; her Honour contrasted wide scale distribution on the one hand, with transactions limited to two or three individuals on the other hand, the former being intrinsically more harmful than the latter; and (f) the respondent’s comments in correspondence with other users involved “making sexually graphic remarks as to the contents of the imagery or asking depraved questions which led to users sending written responses which, themselves, constituted transmission of written child pornography abuse material”;44 her Honour found that the respondent’s comments demonstrated, in addition to the contents of the material involved in his offending, “your interest in very young children, including children being subjected to immense cruelty, degradation and contempt”.45 [38] Her Honour expressly rejected explanations given both to the police and to the psychologist that the respondent’s interest in the material was out of curiosity, or as a means of desensitising his own memories of child abuse, or that he did not get sexual gratification from the material, or that comments he made had an element of bravado in them.46 40 AB 113 line 24. 41 AB 113 line 28. 42 AB 113 line 31. 43 [2003] 1 Cr App R 28; [2002] EWCA Crim 2766. 44 AB 114 lines 22-27. 45 AB 114 lines 29-32. 46 AB 114-115 and 117. -- 13 of 41 -- 14 [39] The learned sentencing judge also found that the respondent’s comments made in response to questions asked by other users revealed his “glee and enthusiasm” for the child abuse material.47 [40] Her Honour characterised the present case and its objective seriousness in terms of offending:48 “But what I suppose is unusual about this case or unprecedented is the fact that the majority – the age being so very young in circumstance [sic] where the offender himself says, “I like babes. I like zero to five” the degree of depravity of the material, the amount of it and the text communications that comes with it. In that sense it is unprecedented. So it is not unprecedented, as I said, in terms of anything that would immediately stand out as never having been seen before in any other case. That is what I am trying to say. The Crown Prosecutor also stated the extraordinary level of cruelty that accompanied the sexual cruelty depicted in the images. And underpinning your conduct is the sense of contempt, degradation and sexualisation of these children.” [41] Her Honour observed that she was dealing with “rolled-up offences” in the case of counts 1-3, 5 and 6, and therefore “the criminality involved in these charges is greater than with a charge involving one episode of criminal conduct”.49 Partly for that reason, her Honour found that it was appropriate to impose some level of accumulation in the sentences imposed. [42] The learned sentencing judge summarised the basis of the sentence in this way:50 “But taking into account all of the relevant considerations, including all of your criminal conduct that makes up every charge, the circumstances of this case, the statements of principle referred to me in the Crown outline, the factors that I have identified and the significance of those, the aggravating features as I have already summarised, and noting, in particular, the nature and content of the images, files and videos including the age of the children and the gravity of the sexual activity portrayed – and I do note in particular that in relation to count 1, the making available, the Crown cannot particularise how many people belong to the supergroups and also that you are not the administrator of the supergroup. I take into account that you pleaded guilty. You do not have convictions for previous offending of a similar nature. You have no criminal history. You have not reoffended since your arrest, being a period of more than two years. And while on bail, you engaged on [sic] counselling, although noting the matters I have raised about the letter from your psychologist. I have had regard to everything that has been said on your behalf by your counsel. In my view, exercising what has been referred to as an instinctive synthesis, with reference to all the relevant factors, in my view, the 47 AB 117 line 18. 48 AB 117 line 44 to AB 118 line 6. 49 AB 119 line 32. 50 AB 122 lines 19-40. -- 14 of 41 -- 15 appropriate global head sentence for your conduct is 12 years imprisonment. And I will attach this sentence for count 1. The sentence for count 1 will take into account the overall criminality of your conduct with lesser concurrent sentences ordered for the other accounts.” Submissions by the Crown [43] Mr Crowley of Queen’s Counsel, appearing for the Crown, contended that there were a number of features about the offending conduct in this case that rendered it at a level of objective seriousness well beyond that apparent from the sentencing remarks and well beyond that which is reflected in the imposition of a head sentence of 12 years and a non-parole period set at 50 per cent. [44] First, the type of material involved centred heavily around very young victims, commencing with newborn babies and toddlers. The concentration on the age of those victims had to be seen in circumstances where the respondent himself said “I like babies”, “I like 0-5” and “I like 0 up”. [45] Second, the extraordinary degree of depravity in the material sourced and transmitted. As well as the clear interest in babies and toddlers, much of the material in categories 4 and 5 featured cruelty to babies and children, which accompanied sexual activity. [46] Third, the communications by the respondent expressing both his sexual preferences and interest in sexual cruelty. [47] Fourth, a feature of the material was that babies and children were subjected to physical acts causing them injuries. For example, one photograph showed tearing injuries, another involved torture, and another involved the torture of small girls with needles, including piercing of the clitoris. [48] Fifth, the material established that the respondent had a subjective interest in the very young group of victims, namely babies and toddlers. That sexual interest included sexual cruelty and torture. [49] Sixth, even in the category 1 images and videos there was degradation of very young children, for example being portrayed with semen on their faces. That content, and the sexual interest in it, displayed absolute contempt, degradation and sexualisation of the child victims. It was right to characterise that degradation as dehumanising. [50] Seventh, the respondent professed himself to like “baby and brutal”. That was a significant feature in terms of the depravity of the conduct. [51] Eighth, the conduct featured many different types of offending. There were eight distinct offences committed. [52] Ninth, the conduct was neither isolated nor momentary, but occurred over a lengthy period of time. [53] Tenth, in all counts except 4 and 8, the charges were rolled-up charges so that each count involved many different incidents by way of offending. [54] Eleventh, across the various counts there were different and distinct types of offending, characterised by a sexual interest in babies, toddlers and brutality (both by -- 15 of 41 -- 16 way of imagery and by the content of the communications between the respondent and other users). That called for accumulation in the sentences. [55] Twelfth, the case was characterised by an extraordinary amount of communication between the respondent and the users to whom he was transmitting or from whom he was receiving. The content was graphic and responsive in terms of expressing his personal preferences for victims who were babies or toddlers, and subjecting them to sexual brutality. [56] Thirteenth, the content of the communications was, itself, child abuse material. Not only was there a sexual interest expressed in relation to children, the content also included sadistic violence, incest, bondage and torture. [57] Fourteenth, whilst the statistical numbers of images and videos might not have been the greatest possible, there was nonetheless an enormous dissemination of material to a potentially enormous audience. [58] Fifteenth, the material showed not only a degree of sophistication about the multiple use of platforms, but a methodical and organised approach to categorising and storing the images. [59] Mr Crowley submitted that those features meant that the case was not apt to be considered simply by reference to numbers and categories, but by reference to its overwhelmingly serious depravity, given the respondent focused on the infliction of sexual cruelty and degradation on victims as young as newborn babies and no older than very young children. Of the many thousands of images and videos only a relatively tiny number did not involve abuse perpetrated on living victims, i.e. real children. Further, the respondent’s eager involvement went beyond passive exchange of material, into active solicitation and transmission, and even the administration of one of the groups. Circumstances of the offending conduct [60] What follows is a description of the offending conduct drawn from the agreed schedule of facts which, with its annexures, totalled 114 pages. For that reason it is not practical to list all of the agreed facts. However, omission of facts runs the risk that the true nature of the offending conduct, and its objective seriousness, might not be fully appreciated. The following synopsis contains greater detail than appears in the sentencing remarks because that is, in my respectful view, necessary for a proper assessment of the objective seriousness of the respondent’s conduct. Overview of offending [61] Over a period of almost two years the respondent used the internet to search for and distribute child abuse material, using online messaging apps, including Kik and Telegram. [62] Kik is a device specific messaging app that provides users with a level of anonymity. The respondent’s Kik offending was detected by overseas authorities, which led to the search warrant executed on 18 November 2017 and his Kik account being shut down. [63] Telegram is a cloud-based instant messaging service. Users can share photos, videos and files up to 1.5 gigabytes per file, with individual users or to groups, including “supergroups” with a large membership, and to “channels”. -- 16 of 41 -- 17 [64] The respondent advertised his Telegram account on 7 June 2017, bookmarked it on his laptop on 14 June 2017, and used that account to offend from 15 June 2017. However, a review of his past mobile use showed that child abuse material was saved from Telegram prior to June 2017. When asked how long he had been using Telegram, the respondent said “Um, pretty sure only this year”. [65] The respondent used Telegram prolifically for approximately five and a half months prior to his arrest, requesting, sending and receiving child pornography from individual users, and making child pornography available on group pages. His self- professed interest was for “babies and brutal”, which was borne out by the nature of the material he traded and uploaded to Telegram. That material included multiple kinds of penetration of babies and toddlers by adults, as well as torture, bondage and bestiality of prepubescent children, including babies and toddlers. The material he sent in messages to individual Telegram users was, on the whole, far more depraved than the material that he uploaded to groups. [66] Through his group membership, the respondent was able to meet other like-minded users. Contact with those users individually was via Telegram. In over two-thirds of cases, the respondent was the person to initiate contact. On occasions he commented on material in the user’s profile picture or material uploaded by the user to a group. [67] The respondent also used Telegram to send images of charred and mutilated bodies of tortured and murdered babies to one user, followed by his request for that user to send “sick material” in return. [68] The Telegram correspondence with other users included graphic discussion about the sexual abuse of young children, and discussion about the respondent’s daughter. The respondent uploaded some non-pornographic images of his daughter, as well as pornographic images of other children whom he passed off as being his daughter. [69] The respondent also used an email account, in his daughter’s name, to send child abuse material. [70] The respondent used a public Google+ account to advertise his Telegram account, to make child abuse material available, and to transmit and access child pornography. Google+ was a social network on which users had a publicly visible account under their own name, and on which they could post. It allowed users to join a “community” in which they could have ongoing discussions about particular topics, and could follow “collections”. [71] The respondent used a social media fetish app, “[Redacted]”, to upload child abuse material and to meet like-minded people. In one case he went on to correspond with such a person on Telegram. [72] The respondent kept possession of the child abuse material he sent and received, by retaining it on his devices and accounts. He also had possession of the child abuse material posted to Telegram groups of which he was a member, to which he still had access. He also maintained possession of the child abuse material that he transmitted. [73] The respondent initially denied any offending, but ultimately made admissions. However, he told police his interest in the material was “curiosity”, and he did not get sexual gratification from it. -- 17 of 41 -- 18 Individual counts [74] In the discussion of the material relevant to each count, references were made to the categorisation of child abuse material in accordance with the Oliver Scale.51 That categorisation is as follows: 1. Naked and/or sexualised posing, but no sexual activity in the image/video itself. 2. Sexual activity between children, or solo masturbation by a child. 3. Non-penetrative sexual activity between adults and children. 4. Penetrative sexual activity between adults and children. 5. Sadism or bestiality, including bondage and humiliation. 6. Animation, cartoons, comics, drawings and written material of children in sexual poses or activity. Count 1 – aggravated making child abuse available [75] On 33 occasions spanning 13 different dates over the five month period from 7 June 2017 to 8 November 2017, the respondent made 84 child pornography files (80 images and 4 videos) available to multiple users, in 12 different online groups.52 On each occasion that child pornography was made available, it was made available to multiple people who had access to the group in question. [76] The groups to which the respondent made child pornography available included “supergroups” on Telegram. In July 2017, a supergroup could have up to 10,000 members, and as of October 2017, a supergroup could have up to 30,000 members. A group member could upgrade a group to a supergroup, and this would typically occur after the group had exceeded 200 members. Material uploaded to a supergroup loads faster for group members than it would for a normal group. Of the 12 groups to which the respondent uploaded material, four were supergroups.53 [77] Annexure A to the agreed schedule of facts set out the occasions, groups and child abuse material uploaded by the respondent in respect of count 1. [78] One quarter of the material made available by the respondent fell into category 4 and category 5. Five per cent of the material uploaded comprised videos. The material uploaded by the respondent included: (a) a 7:51 minute video of a female toddler, approximately two to three years; she is initially watching a video of herself sucking on an adult male penis, then lies on a lounge and an adult male removes her nappy and starts masturbating her with his fingers, before rubbing his penis against her vagina until he ejaculates; (b) a prepubescent child’s vagina, her legs spread showing a very red vagina and anus, with tearing to her perineum and semen all over her vagina; (c) a naked baby between six to twelve months old, with hands and legs tied down with black rope, and a black vibrator inserted in the baby’s vagina; (d) a naked female baby being anally penetrated by an adult male penis; 51 Derived from R v Oliver [2003] 1 Cr App R 28, and expanded by Queensland Police to 6 categories. 52 The groups were comprised of Telegram, [Redacted] and Google+. 53 Those supergroups and the number of users identified at the time of police investigation were: [Redacted] (no membership identified), [Redacted] (197 users), [Redacted] (177 users), [Redacted] (216 members): AB 149. At the time of police investigation those four supergroups had a total of 590 members. -- 18 of 41 -- 19 (e) a young prepubescent female child asleep with a bottle in her mouth and semen on her face; (f) a young prepubescent female child, around five to six years, asleep and naked from the waist down, with legs spread and a vibrator inserted into her vagina by an adult; (g) a young naked female child around four to five years, lying with her legs splayed, exposing her very red vagina; and (h) a naked prepubescent male child kneeling on a bed with an adult female leaning on her elbows and performing oral sex on the child; the image has the words “[Redacted]”. [79] Reference to annexure A of the agreed statement of facts provides the full categorisation and description of the images and videos referable to count 1. In addition to those described above it reveals the following: (a) category 1 images almost entirely focused on young prepubescent female children, from as young as two to three years through to nine to 10 years old; (b) in many cases those images which did not involve sexual activity involved the child exposing their vagina or anus, with legs splayed, in one case holding a vibrator, and in some others exposing a vagina or anus which had the appearance of having been penetrated; (c) instances of young prepubescent female children having a vibrator inserted in their vagina, either by themselves or by others; (d) close-ups of prepubescent female children with their vagina or anus being spread; (e) instances of young prepubescent female children being penetrated by fingers or penises; (f) a young prepubescent female child around eight to nine years, with a face covered in semen and surrounded by five erect adult penises; (g) a naked prepubescent female child restrained by black wrist and neck cuffs with a chain, nipple piercings, a padlock attached to her vagina, and a black riding crop near her vagina; (h) a prepubescent female child around six to eight years, lying on her back and being penetrated both vaginally and anally by adult male penises at the same time; (i) numerous instances of young prepubescent female children with adult penises in their mouths; (j) instances of female babies being anally penetrated by an adult male penis; (k) a video of a young prepubescent female child, naked from the waist down, sitting in a chair wiping something on her vagina and getting a dog to lick it off; (l) an image of a naked female baby with her legs being held splayed, and semen covering her vagina, with an adult male penis over the top of the vagina; and (m) one of the images was accompanied by members of the group posting comments such as “needs to be licked”, “sexy”, “lovely”, “Mmmm OMG love it” and “hot”. -- 19 of 41 -- 20 Count 2 – transmit child abuse material [80] In the five and a half month period from 4 June 2017 to 15 November 2017, the respondent used the internet to transmit child abuse material to 104 users. The material was transmitted from an email address bearing his daughter’s name (being an account that the respondent used to masquerade as his daughter), his Google+ account and, for the most part, his Telegram account under the profile name of his daughter. [81] In over two-thirds of instances (74 out of the 103 users), the respondent was the person to initiate contact via Telegram, contrary to what he told police. Often the initial contact would involve the respondent asking the user “how young” or “how little” they liked, and sending them a child abuse image. [82] In total the respondent transmitted 1,182 CAM files, of which 189 files (16 per cent) were videos, including videos with sound. The material almost exclusively depicted prepubescent children, for the most part being babies (including newborns) and toddlers. [83] The majority of the material (51 per cent) was in categories 4 and 5. As such it depicted penetrative sexual activity between adults and children (often babies), bestiality, sadism, bondage and torture. Material in other categories revealed babies and toddlers, including images and videos of them covered in semen. The material mainly depicted female children being sexually abused by adult males. All of the material transmitted by the respondent in categories 1 to 5 depicted real human children. [84] The respondent’s profile photo on Telegram was of two young naked children simulating sex. Several users commented on the profile photograph, and he told two users that it was of children who were “at a party” that he attended. He told one of the users that one of his girlfriends hosted the party. The truth of those comments was not able to be verified. [85] On any particular day the respondent would transmit child abuse material to an individual user multiple times, and to multiple users. In total, he transmitted child abuse material to different users over 253 days.54 Each of those transmissions was referred to in annexure B to the schedule of facts. [86] During the discussions with other users, it appeared methods were used to avoid detection. This included a user suggesting they use “secret chat”, after which there is no further accessible correspondence, and another user talking about a “[Redacted]”, being another form of secret chat using Windows. As a result, the respondent subscribed to [Redacted] under the name of his daughter. [87] Annexure B also includes descriptions of the files transmitted and of the conversations that accompanied the transmissions. During the conversations the respondent discussed his sexual interests, in particular in babies. He also discussed his sexual abuse of his own daughter and others, the users’ past or intended sexual abuse of children (including their own), and discussions about users sexually abusing his daughter. His contribution to these discussions, of itself, constituted the transmission of child abuse material. 54 That total represents a calculation whereby each day that he transmitted to multiple users was counted per user transmitted to, rather than per day. -- 20 of 41 -- 21 Correspondence – nature of sexual interest [88] In correspondence with other users the respondent said of his own sexual interests in connection with babies: “I like 0 up”; “I love 0-5”; “love baby”; “love bubs”; “I love baby and brutal”; responding to a request of a folder of favourites, “I’ll have to make a new one just with babies”; that he had been looking for “baby groups”; “love baby and tiny kid”; and that he wanted “hot baby pics”. There were other such comments, all in the same vein. [89] Comments made by the respondent in correspondence also revealed that he had a sexual interest in both genders. It also revealed an interest in sadism, torture and bestiality with comments such as: “everything that is gore, bdsm and similar” was “nice me to”; that an image he sent showing a bound seven to eight year old girl, gagged and with pegs attached to her nipples and vagina, was not (as a user suggested) “too much pain”, but rather it “heightens every touch”; referring to babies he said, “I love when they piss when excited”; “I’d love to see a kid fisted”; that he would love to find “little ones fucked by animals”; that he was into “everything sick”; and that he “loves sick play” with kids. There were other similar comments. Nature and depravity of the transmitted material [90] The material transmitted by the respondent bore out his self-professed interest in “babies and brutal”. Some examples under various categories are set out below, but they are by no means the totality of the material. Sexual abuse of babies [91] Examples of material concerning babies that was transmitted by the respondent include: (a) a 3:15 minute video of a naked male baby with his wrists taped to his knees and legs splayed open, with an adult male repeatedly attempting to anally penetrate him, causing the baby to repeatedly cry out; (b) a 1:04 minute video of a young female baby being tied up by the wrists with black rope, with an adult male licking the baby’s vagina before placing a black object near the baby’s vagina, and a substance, suspected to be urine, then being squirted all over the baby including into its mouth; (c) a 26 second video of a baby/toddler (approximately one to two years old) lying completely motionless on its stomach, as if drugged, while being anally raped by an adult male; (d) a 45 second video of a baby boy asleep and naked on the floor with an adult male masturbating over the top of him; this includes an adult male forcing his erect penis into the sleeping baby’s mouth and pushing in further until he ejaculated in the baby’s mouth and rubbed it on the baby’s face; (e) other videos of babies having a penis forced into their mouths or undergoing attempted penetration of a vagina; (f) a naked female baby being held by two adult hands while being anally raped by an adult male; -- 21 of 41 -- 22 (g) a naked female baby being anally raped by an adult male penis with the words “[Redacted”; (h) a baby’s anus and vagina, both of which appear to be severely damaged from penetration, with the words “[Redacted]”, and “[Redacted]” on the image; (i) images of newborn babies or toddlers with semen on their vaginas or stomachs; (j) images of vaginal and anal rape of babies, both male and female; (k) a young female baby naked from the waist down, with legs splayed, and her anus being penetrated by a screwdriver and her vagina being penetrated with a pen; and (l) a naked female baby with her legs pulled towards her chest, showing her anus which appears to have been recently penetrated by something large. Material depicting torture of babies and toddlers [92] Examples in this category include: (a) a female baby’s vagina being held open by adult fingers, with a syringe needle piercing her clitoris and the words “[Redacted]” written on the image; (b) female baby being held upside down over a toilet with an adult female urinating over her head; this being from a video entitled “[Redacted]”; and (c) a 9:04 minute video of an adult female physically and sexually abusing a young baby/toddler, who is extremely upset; this also from “[Redacted]”. Material in relation to bondage [93] Some of the examples in this category are: (a) a naked female baby with wrists and ankles tied with black rope, and a black object pressed into her vagina; (b) a naked female toddler with her hands tied above her head and a purple material gag around her mouth; (c) many other images of naked female children or prepubescent girls restrained or with wrists and ankles tied, or with a gag; (d) a naked young girl with her hands tied to her back whilst being penetrated from behind; in this case the girl can be seen with her head to the side, screaming; (e) a naked female about seven to eight years of age, tied up and spread-eagled, gagged, and with pegs attached to her nipples and vagina; (f) a naked toddler, approximately two to three years of age, lying on her back with wrists tied and legs splayed upwards, exposing her genitals; and (g) a prepubescent female tied up with tape around her legs, arms and face, unable to move and in pain. Material showing bestiality [94] In this category were images of: a dog’s penis being forced into a baby’s mouth; a naked baby lying on her back while a dog licked her vagina; a prepubescent child -- 22 of 41 -- 23 (approximately three to four years of age) being orally penetrated by an unknown animal penis; and videos or images of young naked girls (between five and eight) having their vaginas licked by dogs. The material in videos transmitted by the respondent [95] The 189 video files transmitted by the respondent included lengthy videos (including with sound). Examples are a 23 minute video compilation of naked prepubescent and pubescent female children, between the ages of one and 13, being orally, vaginally and anally penetrated by adult males. A 16:25 minute video showing a young female toddler on a chair while an adult male licked and played with her vagina before attempting to penetrate the child’s vagina with his penis. The male then penetrated the child with an anal plug and with his fingers, before rubbing his penis upon her vagina and ejaculating on her stomach and chest. Comments regarding the respondent’s own daughter, including sexual abuse of her [96] In the course of transmitting material to other users the respondent discussed his sexual abuse of his own daughter, on occasion posed as his daughter, and sent other users non-pornographic images of his daughter, or pornographic images that he passed off as being of his daughter. In discussions with other users the respondent made various comments to the effect that he had sexually abused his daughter from a young age. Examples are: (a) responding affirmatively when asked if he had played with her when she was little or whether he had had sex with his own daughter; (b) that he had “a butt plug in her at 2 days old”; (c) that he had “even had the dog fuck her … she loved it”; (d) entertaining the prospect of a user having sex with the respondent’s daughter; (e) that he had been playing with his daughter “from a very early age”; and (f) that his daughter “loves to try everything”; when asked by a user “fuck she”, he replied “I have”. Comments regarding sexual abuse of other children, or material of children known to him [97] The respondent made comments about having abused, or wanting to abuse, other children, as well as suggesting certain files that he had transmitted were of children he knew. Examples of those comments are: (a) responding affirmatively when asked whether he had “ever had a young girl”; (b) in relation to another user’s two year old niece, he said “nice love playing with them when there [sic] little like that they taste so sweet”; (c) he told a user that a 1:08 minute video that the respondent had sent him was of “a mates little one”; the video was of an adult rubbing a female baby’s naked vagina and spreading it to reveal a very red genital area; (d) telling a user that he had “fuck with little girls”, identifying that as the four year old daughter of a friend; -- 23 of 41 -- 24 (e) pretending to have a five year old daughter with whom he had played “since she was a few months old”; (f) telling a user that the youngest girl he had “played with” was “six months old”; and (g) telling a user that he (the respondent) was “fortunate enough to see one fucked by a dog”, identifying the girl as “five strapped to a bench”. Discussions with users about the users’ sexual abuse of children, including their own [98] The respondent also spoke with users about their sexual abuse, or intended sexual abuse, of children, including their own, and as well pornographic material of children known to them. [99] Examples of those discussions included: (a) asking a user whether he had “played with” his two year old niece, whose images he had received; he asked that user what he did to his niece, drawing the reply “touching her”; the respondent said he would “love to taste” the niece; (b) asking another user “Have you played with your girl?” and “When did you start with her?”, with reference to a user’s photograph of his seven year old daughter; and (c) asking a user, in respect of the user’s three year old son, “What do you do with him?”, and “How loose is he?”; then, responding affirmatively when the user asked whether the respondent “want him?”; asking that user “What do you stick up his arse?” and “Have you tried putting his hand up his arse?”. Annexure B – material transmitted by the respondent to 104 users (count 2) [100] Some idea of the scope of material transmitted by the respondent to the 104 users (of whom 50 sent child abuse material to the respondent) can be gained from understanding that annexure B covers 59 pages and 253 entries. The vast bulk of the entries concern children no older than about 12 to 13. Indeed, those of an age above 10 are in a very small minority. By far the greatest proportion relates to prepubescent children in a variety of sexually degrading activity including vaginal and anal penetration, masturbation, oral rape, torture and bondage, rape by objects such as screwdrivers, a hairbrush and pens, exposure of their genitals, bestiality, being subjected to urination or ejaculation, oral sex (both by and upon adults) and sadism. All of these activities received approving or enthusiastic responses by the respondent resulting in both the transmission and requested receipt of further such images or videos. [101] A particular feature of the instances in annexure B is the degree to which the sexual activity was perpetrated upon babies and toddlers. This included images and videos where babies are tied up or tortured. It also included images or videos of babies being exposed to bestiality involving dogs. The same is the case with toddlers. In some cases the effect of the activity is extreme, as reflected in this description55 referring to images:56 “baby’s anus and vagina, both of which appear to be severely damaged from penetration with the words “[Redacted]”, “[Redacted]” printed on the image” 55 As part of the agreed facts. 56 AB 181. -- 24 of 41 -- 25 [102] One of the videos portrayed a naked male baby with his wrists taped to his knees, splaying his legs open, with an adult male repeatedly anally penetrating him, causing him to cry out repeatedly.57 One of the videos, “[Redacted]”, shows the physical and sexual abuse of a young baby/toddler who is extremely upset.58 In one instance the video reveals a female baby’s vagina being penetrated with an object that looks like a paint brush, and her anus penetrated by a screwdriver.59 [103] One particularly concerning feature of the material in annexure B is the predominant focus not just on prepubescent young children, but babies and toddlers. In very many cases the images and videos of babies involves anal rape. Without being able to make a precise analysis of the numbers involved, partly because many of the videos simply refer to “toddlers” (meaning more than one but without identifying how many), a rough tally shows over 500 instances where the respondent was involved in relation to images and videos involving babies or toddlers. Some further understanding can be gained from the fact that the babies and toddlers were identified by different descriptions. Thus, one identification was simply “baby”, another “toddler”, and then disturbingly two others identified as “very young baby” and finally, “newborn”. Again, without attempting a precise count, annexure B reveals 334 instances involving babies, 142 involving toddlers, 13 involving very young babies, and 19 involving newborns. In many cases the categories of baby and toddler were the subject of anal rape. In the case of very young babies, the depicted activity included oral rape,60 bondage,61 insertion of items in the anus62 and vaginal rape by vibrator.63 In the category of newborn babies the depicted activity included being covered with semen,64 having an adult penis pressed against the vagina,65 being the subject of non- penetrative sexual activity by an adult,66 and penetration by an adult.67 [104] In all of the categories and instances in annexure B the respondent was involved in the transmission of the material, and in most cases not mere approval of what was depicted, but explicit statements that those depictions were what he really liked, what he had engaged in and what he would like to see more of. Perhaps the most succinct statement of his preferences came in the responses: “I love baby and brutal”; that he had had the chance to do “a few little ones”; that he liked both baby boys and baby girls; that having sex with little girls was “just like fucking any woman”; that he would “love to see a kid fisted”; “I like 0 up”; “I like really young”; and “I like even younger than [2 years]”. Count 3 – transmit child abuse material [105] During the conversation with a user named [Redacted], the respondent was asked whether he had “any dead baby, toddlers?” In response the respondent sent [Redacted] five child abuse images on a single day (9 November 2017) depicting: 57 AB 182. 58 AB 198. 59 AB 219. 60 AB 184 item 108, AB 197 item 156. 61 AB 187 item 120, AB 197 item 156. 62 AB 188, item 122. 63 AB 209 item 208. 64 AB 184 item 107. 65 AB 184 item 107. 66 AB 198 item 157, AB 202 item 178. 67 AB 216 item 228. -- 25 of 41 -- 26 (a) a baby’s backside with several black burn marks all over; (b) a mutilated dead baby; (c) a dead baby coming out of the anus of an adult male; (d) a severely burnt deceased baby; and (e) a mutilated dead baby in garbage. [106] During the discussion [Redacted] made a number of comments in response to the photos: “Nice, have more??” In response to the photograph of a mutilated dead baby, [Redacted] said “Nice. I dream to do this with my son.”, “I want to kill my son. Cut of him balls, penis”, “I dream to kill my fucking son”, “Searching for pedo with hiv positive to fuck my son”, “Show some videos with kill baby”, “How to castrate 3yo boy at home without doctor?” and “You love death kids? You kill kids”. In response to the final question the respondent responded “No, just really love sick play with them”. Count 4 – solicit child abuse material [107] This charge related to the respondent’s asking [Redacted], having sent the five child abuse images referred to in count 3, “What sick photos do you have?” Thereby the respondent solicited child abuse material from [Redacted]. In response, [Redacted] said “Nothing”, and did not send any material. Count 5 – cause child pornography material to be transmitted to self [108] Of the 103 users to whom the respondent transmitted child abuse material, 50 sent child pornography material to him. This material was received in the five month period from 15 June 2017 to 14 November 2017. The material consisted of 742 files, of which 141 were videos. Thirty-one per cent of the material received was in categories 4 and 5. [109] Annexure C to the schedule of facts gave further details of the dates, nature and extent of the material, and the surrounding discussions with the other users. On occasion other users would communicate with the respondent in another language, and he would use Google Translate in order to converse with them. [110] Annexure C to the schedule of facts comprised 17 pages of instances where the respondent caused material to be transmitted to himself, soliciting it from other users and groups. There are 107 items that make up the 742 files from 50 users. The content is similar to that contained in the material the subject of annexure B. Both images and videos concentrated on prepubescent children, particularly babies and toddlers, being subjected to penetrative and non-penetrative sexual activity, some images of torture,68 self-masturbation, bestiality, oral rape, anal rape, brutality,69 and bondage.70 [111] Some of the material was sent in response to questions posed by the respondent such as: “will you show me more little girls”, “what’s the youngest pic you have?”, that he “just loved tiny ones”, “do you have any hot baby pics”, having told a user that he likes younger than two year olds, “do you have any hot pics”, “love young”, and “love your pics of babys”. 68 A prepubescent child nailed to crucifix and one gagged with a gag-ball: AB 227 item 30. This was material sent in response to the respondent’s statement that “I love baby and brutal”. 69 A video of a male repeatedly and forcedly smacking the naked buttock of a baby: AB 237 item 84. 70 A prepubescent girl bound and gagged, being vaginally penetrated by an adult penis: AB 237 item 85. -- 26 of 41 -- 27 [112] On many of the occasions that the respondent received the material from other users, he did so having directly requested it from them, as shown in annexure C. These requests included asking users for the “youngest pic” they had, asking for “baby photo” and “hot baby pics”. However, when police asked the respondent what things he was specifically asking for, he said “Anything from normal, adult, right through to everything on there”, and denied using specific terms in his requests. [113] On other occasions the trading or receipt of child abuse material occurred without a specific request from the respondent. On those occasions the respondent caused the material to be transmitted to himself, given the following facts: (a) the respondent posted category 1 child pornography images to Google+ on or about 7 June 2017, inviting people to “Telegram me”; that post was prior to the respondent having received material on Telegram; (b) the respondent uploaded child abuse material to Telegram groups and supergroups, through which others were able to identify their mutual interest and privately make contact with him over Telegram; (c) the respondent often instigated contact with the users and sent child abuse material to the users himself, thereby encouraging a trading relationship to commence; (d) the respondent admitted to police his sole purpose for using Telegram was child pornography; and (e) the trading relationship that ensued in the correspondence with the users and the nature of their discussions revealed contact that exclusively related to child pornography. [114] During discussions two users purported to send the respondent child abuse material of their own children or relatives. One was of the user’s two year old niece, and the other of his three year old son. [115] The material the respondent sent, the questions he asked and the comments he made, caused users to send written responses that, in and of themselves, constitute child abuse material. These written responses include descriptions of some users’ actual or intended sexual abuse of their relatives. Examples are: (a) one user stating that he had played with his two year old niece by “touching her” and that she had a “beautiful pussy”; (b) another user announcing that he “didn’t miss any chance [in respect of his four and six year old girls] since they were born” to play with them, and that he “started by cumming [sic] in their mouth on day one at the hospital itself … not a single drop is wasted, they grew to love the taste”; that user also stated that he had committed a “couple rapes to … other kids”; in relation to his daughters that user also said he wished someone would “rape them so hard that they scream”; (c) yet another user said that he would “like fuck only a baby girl” and that he would like to adopt a baby or girl for “fun and cum”; (d) yet another user said he had “played with” his two year old daughter; (e) yet another said that he had sexually abused his seven year old daughter “every day since she was 2yo”; -- 27 of 41 -- 28 (f) another user announced “I love violence against children and newborns cut off their genitals”; and (g) [Redacted] said that he was “searching for pedo HIV positive to fuck my son”. Count 6 – solicit child pornography material [116] In the five month period from 5 June 2017 to 8 November 2017 the respondent also solicited child abuse material from eight different people, being one email recipient and seven Telegram users. On those occasions the respondent did not receive child abuse material in return, or it cannot be proved that that was the case. [117] The respondent solicited child abuse material in the following way: (a) asking one user “do you have any pics” after an exchange between them where the respondent wanted to know “what is the hardest thing you have seen” and the user responded “a 5 year old being fucked”; (b) asking another user to “show me what you like” after child abuse material had been sent to that user by the respondent; (c) asking another user did he “have any vids”, after the respondent had sent child abuse material to that user; (d) asking another user “love babies got any more”, that occurring after the respondent had sent child pornography of babies; (e) asking another user “have you got any really little ones”, after the respondent had sent child abuse material; (f) asking another user “you have any like that” after he had sent an image of an adult penis near the naked vagina of a young prepubescent girl; (g) the respondent, having sent one user a series of child abuse material including that of a baby, asked “have you any like it”; and (h) asking one user “do you have any”. Count 7 – access child pornography material [118] The respondent accessed child abuse material from multiple places, including messaging apps, social media platforms on which he had accounts and the internet at large: (a) Kik – on his admission, “years ago”; (b) Telegram – from 7 July 2017 onwards; (c) Google+ – from at least 15 June 2017; (d) [Redacted] – from at least 14 June onwards; (e) Mega – at least several months prior to his arrest; and (f) the internet generally (including Twitter) – from 5 November 2016 (according to forensic evidence from his laptop, and two years according to the respondent’s admissions). -- 28 of 41 -- 29 [119] The respondent accessed child abuse material using Telegram, not only in receiving material from other Telegram users (the subject of count 5), but also through his membership of Telegram groups and supergroups to which child pornography was posted. Prior to using Telegram the respondent used the messaging app Kik in order to access child pornography and, on his own admission, also searched the internet to access child pornography. The respondent told police he accessed child abuse material using the search engines and platforms Google, 4Chan and Anonymous. [120] The respondent told police he used Kik to access child pornography “years ago”, and that he had been accessing child pornography using the internet “on and off” for years. That formed the basis for the commencement date of count 7. [121] As a result of a forensic review of the respondent’s laptop, evidence was found that was indicative of him using the internet to access child pornography from 2 December 2016 onwards. He also used Google+ to access child abuse material posted by others to “collections” (similar to groups). Kik [122] When police executed the search warrant the Kik app did not exist on any of the respondent’s devices, therefore the full extent of his Kik offending is unknown. This was as a result of Kik having deleted his account. [123] During the execution of the search warrant the respondent initially said he had “never had Kik”, however ultimately admitted to using it to access child abuse material. The respondent said that when he was on Kik “someone puts you on to someone else who puts you on to someone else who puts you on to someone else”. When asked about how much child abuse material he had obtained from Kik, the respondent told police he had “no idea” but that it would be “hundreds” of files. He admitted that the first time he used Kik for that purpose was “years” ago, and that he used it for “I dunno a while, months … about”. He said he was able to access child pornography on Kik by simply typing in “[Redacted], and it will come up with six or seven hundred”. [124] The respondent’s username on Kik was “[Redacted]”, however when asked his username he said that he could not recall it. When asked whether Kik would be found on one of his previous mobile phones he said “don’t think so”, and that he had gotten rid of it because he “started over, everything”. He agreed he did not want to be caught with that sort of material on his phone. He later suggested that he had been “shut out” from Kik, which was, in fact, the case. [125] The respondent told police that he had last accessed Kik a “very long time ago”. However, on 25 June 2017 he asked a user “are you on kik”. The respondent told police he had not used Kik on his current mobile phone. However, he had been subscribed to that mobile phone since 20 June 2017, after which time he asked that user whether he was on Kik. [126] On 14 October 2017, when a user asked the respondent whether he was on Kik, he replied “not on kik”. Several days later he told another user that “kik is out. Band [sic]”. [127] During his discussion with another Telegram user, in response to that user asking where the respondent had got his pictures from, he said “over time kik and other places”, thereby admitting that he had used Kik to access child abuse material. -- 29 of 41 -- 30 Telegram [128] On Telegram the respondent was a member of “groups”, “supergroups” and a “channel” that he used to access child abuse material uploaded by others. If a user joined a normal “group”, they can only see material posted to that group from their date of joining onwards. If a member joined a “supergroup”, they have access to all material posted to that group since it was made a supergroup. A “channel” is akin to bulletin boards but allows users to post anonymously. [129] When police asked the respondent how long he had been using Telegram, he said “um, pretty sure only this year”. He admitted to having used Telegraph on his current and previous mobile phone. The first group the respondent joined on Telegram was on 7 July 2017. [130] The respondent told police “basically if you were in a group and other people search you out through who’s in the group” that you would then get “invites to other groups”. When asked how many images or videos he had downloaded from Telegram during 2017, the respondent said “wouldn’t have a clue … just what goes past on the screen. It is basically like feed like … like a twitter feed. Other people put up that you can see”. [131] The respondent was a member of 22 groups on Telegram through which he accessed child abuse material posted by others. The schedule of facts then set out a table of the Telegram groups.71 Of the 22 groups the following points can be made: (a) the first was joined on 7 July 2017 and the last on 8 November 2017; (b) eight of the groups were upgraded to supergroups at various points in time but the bulk of them by August 2017; (c) of the eight supergroups in respect of which a specific membership could be identified at the time of police investigation, there were 1,042 members; (d) one was classified as a “channel” rather than a group; in that case the channel could have an unlimited number of members and once someone joined the channel they had access to the entire message history; at the time of the police investigation there were 127 subscribers to the channel; and (e) in respect of one group, [Redacted], the respondent was a group administrator as he had the ability to remove members from the group; at the time of review that group had about 61 members. [132] All of the material on the respondent’s Telegram account was categorised. Excluding the child pornography which he had sent or received and which was the subject of counts 2 and 5, the following child abuse material was posted to the groups, supergroups and the bulletin board of which the respondent was a member, and was thereby accessible to him: 1 2 3 4 5 6 TOTAL Images 2653 145 203 488 125 28 3,642 Videos 266 423 346 927 36 6 2,004 [133] Although it is not clear whether the respondent accessed every single image and video posted, his use of Telegram had been prolific and his membership of the groups was in order to source child pornography material. 71 AB 149. -- 30 of 41 -- 31 Google+ [134] Through his Google+ account the respondent followed 11 “collections”, two of which included category 1 images of prepubescent children ranging from zero to 10 years old. He was also part of 25 community pages including “[Redacted]”, “[Redacted]”, “[Redacted” and “[Redacted]”. The respondent had his Google+ account prior to 7 June 2017, that being the date he used it to make child abuse material available (the subject of count 1). [Redacted] [135] The respondent joined [Redacted] (known as “the first fetish social network”) on about 14 June 2017. He used an image of a prepubescent child as his profile picture and his profile name was “[Redacted]” (the same as his Kik account). From then until the time of his arrest the respondent accumulated 70 friends and became a member of seven groups. As well as the two groups to which he posted child pornography material (the subject of count 1), he was also able to access child abuse material through a further two groups. Mega [136] Mega is a cloud-based storage app. The respondent had sent and received Mega links on Telegram that were not operational at the time of police investigation. When the search warrant was executed there was evidence on his previous mobile phone that Mega had been used. He told police the first time he had used Mega was “a few months ago” and that he had used it to access child abuse material. When asked how much, the respondent said “no idea, some multiple files, some individual files”. He told police he had a current active Mega account, but police were not able to access it. Internet generally [137] The respondent said his daughter used his laptop when she lived with him, but that he took over primary use of it since she left in November 2016. Following a forensic review of the laptop, the first evidence indicative of it being used to access child pornography was from 5 November 2016. [138] A review of his laptop showed that he had used it to access various websites in nearly all months between November 2016 and November 2017. The bulk of the websites bore names that suggested that they showed children or teens. [139] When asked when he had last accessed child pornography on his laptop, contrary to the evidence of it having been used that month (November 2017) the respondent said it was “months” ago, “probably off Chan”, and that it was “probably only one folder”. [140] Analysis of the laptop also showed that the respondent had searched Twitter under various terms showing a focus on children or teens, and that he had visited various Twitter sites with the same sort of focus. The forensic evidence also suggested that he had accessed an album on Facebook named “[Redacted]”, but the content was unknown. Count 8 – possess child exploitation material [141] The respondent possessed child abuse material on the following locations: -- 31 of 41 -- 32 (a) his HP laptop; (b) a 16 gigabyte SD card located in an SD adaptor in his bedside table; (c) a 2 gigabyte micro SD card located in his bedroom; (d) a mobile phone (his previous mobile phone); (e) his email account; and (f) his Telegram account. [142] The child exploitation material possessed by the respondent on the first four devices listed above was categorised as follows: 1 2 3 4 5 6 TOTAL Images 14,092 575 1,006 1,677 233 73 17,656 Videos 49 164 49 327 11 0 600 [143] There was a very small degree of duplication (less than 10 per cent). [144] The respondent possessed seven images in his email account. In his Telegram account, including material he transmitted (count 2), received (count 5) and accessed (count 7), the child abuse material was categorised as follows: 1 2 3 4 5 6 TOTAL Images 3202 177 478 692 360 33 4,942 Videos 287 443 431 1097 54 9 2,321 [145] In total, the respondent possessed the following quantity of child abuse material: 1 2 3 4 5 6 TOTAL Images 18,108 752 1,484 2,372 593 106 23,415 Videos 336 607 480 1,424 65 9 2,921 TOTAL 18,444 1,359 1,964 3,796 658 115 26,336 [146] When police spoke to the respondent while executing the search warrant on 18 November 2017, he initially denied possessing child abuse material, although ultimately made admissions when police analysed his devices. When asked about the child abuse material on the SD card, the respondent denied using it and denied knowledge of any child abuse material on it. The same applied to the micro SD card, with the respondent denying any knowledge of the material located on it. When he was shown some of the material on it he said he had “honestly no idea” how it came to be on the card. The material found on the SD cards was also located on the respondent’s laptop, and included material that he had shared with others on Telegram. Ultimately, he had admitted that the material on the SD cards belonged to him and said that he had downloaded the SD card and mobile phones onto his laptop. [147] The same pattern of denial and then admission followed when he was asked about his previous mobile phone and the use of Telegram on that device. [148] The respondent admitted he had used his current mobile phone for child abuse material on Telegram. He said the child pornography was “not on that phone now … because trying to get back on with my life. Being a Venturer leader probably not the best thing to be having”. However, the respondent had been continuing to use Telegram for child pornography up until his arrest and told police that he had “saved everything off phone onto laptop at one stage”. -- 32 of 41 -- 33 [149] The respondent stored the child abuse material on his laptop in labelled and structured folders and subfolders. The majority of the files were within a subfolder labelled “little sluts”. He showed police how to navigate the file pathways, leading to the “little sluts” folder. Within that folder there were a large number of subfolders bearing different names, each of which contained pornographic images and videos of children who ranged in age from babies. One of the subfolders was labelled “collection4”, containing a further subfolder labelled “26-1-2016”. That subfolder contained a large number of child abuse images and videos including one of a young female child of about six years being vaginally penetrated by an adult male. [150] Police examination revealed that the images found on the SD cards also existed on the laptop and had been transmitted by the respondent’s use of Telegram. Search warrant and statements made by the respondent to police [151] During the execution of the search warrant the respondent initially denied any connection with the acquisition, possession or transmission of child abuse material. When child pornography was found on the SD cards he continued to deny any involvement, insisting “I’ve told you as much as I know”. As a consequence it was necessary for police to speak to each of the respondent’s step-children and his wife in relation to their knowledge of the matter. Ultimately, the respondent conceded there was “possibly” child pornography on one device though he continued to make denials about how it had occurred. Ultimately, he signed over his Telegram account to police. [152] The respondent denied having ever taken photographs of his own family members or ever having committed contact offences. His daughter and step-daughter denied any sexual offending by him. [153] When asked the reason for his offending in terms of child pornography he explained that it was “just curiosity more than anything else”. He denied receiving any sexual gratification from the material. Consideration [154] It was a feature of the sentencing hearing that attempts were made by both the Prosecutor and defence Counsel to find “comparable cases”. That is, of course, a feature of many sentencing hearings where previous cases are put forward as benchmarks against which consideration can be given to the offending in question. In many cases the offence being considered will be one commonly the subject of sentencing considerations, and therefore cases can be found that are truly comparable to the objective seriousness of the offending, and in the nature of the offences themselves, and therefore they have utility as benchmarks. [155] In other cases the situation may be different. That may be because the offence itself is novel or new, rare in its occurrence, or the objective seriousness puts it beyond the scope of the routine cases of like offences. Yet another example is where the number of offences committed at the one time takes the objective seriousness of the offending into a league well beyond so-called comparable cases. [156] When it comes to offences concerning child abuse material, either under the State or Commonwealth Criminal Code, the advancement of “comparable cases” must be -- 33 of 41 -- 34 done with some care, and assessed with some care by the sentencing judge. Because such offences routinely involve the possession or distribution of images or videos, there is a tendency to seek out cases where an offender has possessed or distributed a similar number of images or videos in similar categories. [157] Numerical equivalence is seldom able to be demonstrated. Even numerical similarity is elusive, particularly when one is dealing with five or six categories of child abuse material. However, even in cases where numerical comparisons can be made, a sentencing judge must be careful not to elevate that particular factor disproportionately as against other considerations. The number of images or videos is but one of many factors to be weighed in the balance. This Court has recognised that the quality of the material rather than its quantity will often be more determinative of the gravity of the offending conduct.72 [158] The error in analysis by elevating numerical equivalence can be demonstrated easily by a couple of examples. If one offender is found in possession of 50 images and another has 100, it would be overly simplistic to jump to the conclusion that the second offender’s conduct was twice as serious as the first. And the same applies in reverse. [159] The same caution should be expressed in respect of comparisons that focus unduly upon the number of images or videos in lower categories as opposed to those in more serious categories. Even categories 1 and 2 involve the degradation of children, and the suggestion that they are less serious than higher categories has been rejected.73 Because category 1 does not involve actual sexual activity, but rather naked or sexualised posing, that does not mean that the children involved in the production of those images and videos have not been preyed upon, abused and degraded. The same can be said of category 2, which is distinguished from categories 3, 4 and 5 because of the non-involvement of adults. Category 2 involves sexual activity between children, or solo masturbation by a child. The absence of adults in the images or videos in no way diminishes the fact that the children involved in those images or videos have been abused and degraded. Of course, it is right to say that the subsequent categories are more serious because they involve adults, or penetrative sexual activity in category 4, and sadism or bestiality (including bondage and humiliation) in category 5. And of course it is right to say that where physical acts are perpetrated by adults upon children in such videos or images they are objectively more serious and the impact on the relevant children is objectively more serious. But that is not to say that the ultimate vice in such offences, the abuse and degradation of vulnerable human beings, is of a lesser extent. As the Criminal Code in each jurisdiction recognises, offences of this kind are an abomination in a civilised society, regardless of whether the images and videos fall in the lower categories or not. [160] The principles relating to manifest inadequacy are well established. In R v Ireland; Ex parte Attorney-General (Qld)74 they were expressed: “Crown appeals against sentence are exceptional. Interference with the sentence on a Crown appeal requires demonstration of error on the 72 R v Vantoosten [2009] QCA 54 at [19]; R v Hickey [2011] QCA 385 at [13]. 73 See, for example, Director of Public Prosecutions (Cth) v Watson (2016) 259 A Crim R 327; [2016] VSCA 73 at [44]-[46]. 74 [2019] QCA 58 at [16]; internal citations omitted. See also Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [16]; [2011] HCA 10; Wong v The Queen (2001) 207 CLR 584 at [58]; [2001] HCA 64; Hili v The Queen (2010) 242 CLR 520 at [60]; [2010] HCA 45. -- 34 of 41 -- 35 part of the sentencing judge. Error is not demonstrated simply by a sentence being markedly different from other sentences imposed in other cases. Manifest error can be shown if the sentence imposed is “out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it”. If the difference is such that in the circumstances it must be concluded there was a misapplication of principles, intervention is warranted on appeal.” [161] In Director of Public Prosecutions v Karazisis75 the same test was adopted but it was also put another way: “As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was “wholly outside the range of sentencing options available” to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.” [162] In my view, for the reasons that follow, the offending in the respondent’s case was so objectively serious that there was no meaningful comparison that could be made to decided cases, and further, the sentence imposed on count 1 was manifestly inadequate. [163] In what follows I will attempt to identify those areas as a result of which the proper characterisation of this offending warrants a sentence beyond that imposed by the learned sentencing judge. Type of material – extremely young victims [164] The first consideration is that the type of material involved in this case, almost across the board, centred heavily on images and videos of very young victims, but particularly involving newborn babies and (predominantly) toddlers. The respondent himself proclaimed, “I like babies. I like 0 to 5”. By his own proclamation (revealing his subjective interest), and by the very nature of the material, this case involves a singular case of child abuse material. [165] Not only did the respondent profess his interest as above, he also proclaimed that he liked “baby and brutal”. The focus on toddlers, newborn babies and brutality towards them is a significant feature in characterising the depravity of his conduct. There is no need to rehearse the number of items that involved newborns, the number of items that involved toddlers, or the number of items that involved horrendous sexual acts against those victims and in circumstances where distress was evident. By focusing not just on vulnerable children, but on the most vulnerable of children who were yet to embark upon any attempt at normal human development, the respondent descended into ultimate depravity. His conduct in seeking such images and videos, distributing them, encouraging others to distribute them or receive them, and administering at least one group of like-minded people, meant that he became one of the architects of 75 (2010) 31 VR 634 at 662-663 [127]; [2010] VSCA 350; internal citation omitted. -- 35 of 41 -- 36 the degradation of human life. He participated in a market, and encouraged a market, that compelled the denial of the chance to experience normal human development to many defenceless children. It is not the same as corrupting someone who is older. It is worse. The corruption of the newborns and toddlers proceeded from their earliest time of life, denied them any semblance of a normal life, and degraded them in a way that made them simply objects for perversion. In one sense the degradation the respondent encouraged entailed the same moral repugnance as if the newborns and toddlers had been killed. And, by degrading them the respondent degraded everyone else in normal society. Degree of depravity in the material [166] The degree of depravity has been referred to above, in the context of the respondent’s focus on babies and toddlers. However, much of the material in categories 4 and 5 featured cruelty to babies and children, often accompanying sexual activity. It is that feature that, amongst others, sets this case apart. As detailed above there were many instances where category 4 and 5 material involved violent penetration of prepubescent children, restraint by cuffs or chains, simultaneous penetration both vaginal and anal, multiple images of anal penetration, anal penetration of babies, anal penetration of babies with implements, penetration of babies or toddlers while they were evidently upset and crying, severe damage from penetration to a baby’s anus and vagina, and physical violence applied to the buttocks of a baby. [167] That sort of material was the subject of the respondent’s preference, particularly with his comments such as “I love baby and brutal” and his enquiry of some users such as “What’s the sickest pic you have”. The respondent repeatedly sought out material where the victims were “really young” or “little ones”, expressing his preference as “I like really young”. The focus on babies and toddlers was expressed by various comments including asking one user whether he had any “hot baby pics” and asking for a “baby photo”. His interest in violence towards the victims was signified by comments, in respect of whether too much pain had been inflicted on a young girl tied up with ropes, gagged and with pegs attached to her nipples and vagina, that “na it just heightens every touch”. The respondent repeatedly expressed his interest in material involving babies, asking one user “have you any baby”, and telling another that he “love baby”. That interest was also signified by comments such as “I like 0 up” and telling another that he would “love to find … little ones fucked by animals”. [168] The all-pervading nature of the respondent’s professed sexual preferences, interest in babies and toddlers, and in acts involving sexual cruelty as well as violent behaviour, marks out this case as one of extreme seriousness. Material showing cruelty and physical acts causing injuries [169] This was an additional feature of the material obtained and distributed, and the interest shown by the respondent in the type of material he could obtain. Photographs showed tearing injuries to the genital area and anus. Others involved torture, such as the torture of a small girl with a needle piercing the clitoris, or children with attachments to various parts of their bodies. Images included those of toddlers with a very red vagina, children with their stomach, chest and genitals covered in red marks, vibrators being forced into the vaginas of toddlers, severe damage to a baby’s anus and vagina from penetration, and prepubescent children nailed to a crucifix or gagged with a gag ball. Prepubescent children were shown to be restrained with cuffs and chains, nipple piercings, a padlock to the vagina of one and others involving the penetration of -- 36 of 41 -- 37 babies with various implements, including a hairbrush and a screwdriver. Leaving aside the obvious conclusion that any anal penetration of a baby or toddler is likely to generate injuries, and there were many such images and videos, it was a feature of the material that actual injuries were depicted, and sought by the respondent who expressed his preference as “I love baby and brutal”. [170] The respondent’s sexual interest in babies and toddlers, and in particular sexual cruelty and torture, was characterised before the learned sentencing judge as “the ultimate debasement of children”. That characterisation is apt. It is what I have referred to above as an effective denial to the most vulnerable in society, of even a chance of normal human development. Conduct involved different types of offending [171] It is a particular feature of the respondent’s case that the conduct constituted a variety of types of offending. There were eight distinct offences committed. They included counts 2 and 3 which were using a carriage service to transmit child pornography material (in the case of count 2) or child abuse material (in the case of count 3). In addition, counts 4-7 were all constituted by the use of a carriage service, but in different respects. Count 4 was to solicit child abuse material, count 5 to cause child pornography material to be transmitted to himself, count 6 to solicit child pornography material, and count 7 to access child pornography material. Then, count 8 was the count of possession of child exploitation material. [172] It is significant that the offences included count 1, an aggravated offence where the offences involved conduct on three or more occasions, and two or more people. [173] That breadth of offending is a signature feature for sentencing purposes. Conduct was prolonged [174] The admitted facts show that the respondent’s conduct was not isolated or momentary, but occurred over a lengthy period of time. The material that I have noted above in respect of the agreed facts, as well as in consideration of whether the sentences were manifestly inadequate, serves also to demonstrate that the conduct was not sporadic but evidenced a determined, comprehensive and sophisticated cause of conduct to solicit, possess and distribute child abuse material. [175] It is, in my view, a significant feature that the respondent was not merely a member of the groups concerned with such material, but in one case was the administrator of a group. That aspect of his involvement and conduct reveals a character different from other cases, and, as I develop below, one not fully recognised in the sentences imposed below. Counts 1-3 and 5-7 were rolled-up charges [176] This point is simply expressed, but does reveal an important aspect of characterising the seriousness of the respondent’s offending. All but counts 4 and 8 consisted of rolled-up charges, each involving many incidents by way of offending. A cursory glance at the agreed facts reveals that to be so. Different and distinct types of offending across various counts [177] As the agreed facts show, across the various counts there were different and distinct types of offending, though characterised overall by a sexual interest in babies, -- 37 of 41 -- 38 toddlers, sexual degradation and brutality. In particular, those characteristics were evident not just in the nature of the images and videos, but in the communications that the respondent had with other users. That feature was one that rightly called for accumulation in the sentences imposed. Communications between the respondent and other users – in itself, child abuse material [178] As the synopsis of the agreed facts above reveals, there was an extraordinary amount of communication between the respondent and other users. Some of those users were not merely passive members of a conversation, but were users to whom or from whom material was being transmitted. The content of the communications was graphic, enthusiastic, congratulatory and shocking, in that the respondent frequently expressed his personal preference for victims who were newborn babies, babies or toddlers and others, all of whom were subjected to sexual brutality or torture. Even when babies and toddlers were not subjected to physical brutality, there were endless examples of them being subjected to dehumanising degradation, such as being depicted with semen on them, either in the area of the vagina or on the face. [179] It is a particular feature of this case that the respondent’s communications with other users were themselves child pornography material. The respondent expressed his sexual preferences in graphic ways, enthusing over the prospect of receiving pictures of babies and toddlers being subjected to sexual abuse, encouraging discussion of sexual acts including responding to a user’s comment about anal sex by saying “pounded hard”, reminiscing about having had sex with a young girl and engaging in explicit conversations with users about what they had done to young children and what he had done to young children. Not only did the respondent express his sexual interest in relation to children, and particularly babies and toddlers, but the content of the communications included sadistic violence, incest, bestiality, bondage and torture. A recurrent theme through the communications was the respondent’s confirmation that he had sexual activity with babies, had sexually abused his own daughter, had subjected his own daughter to bestiality, and defended bondage and torture of a young girl by saying that it was not too much pain, but it just heightened every touch. At times the respondent engaged in conversations that encouraged having sex with babies or little girls, telling one user that he had engaged in sex with “little girls” and when asked to tell a user “Can you told [sic] me how fuck with little girls?”, he gave the advice “It’s just like fucking any woman”. There are more comments that could be referred to, but that is sufficient to demonstrate the point. Extent of the dissemination [180] It is a feature that by reason of the respondent’s participation in numerous groups, including supergroups, the dissemination of material was itself enormous in quantity, and to a potentially enormous audience. It is trite to say that dissemination on the internet of this sort of material is a simple thing to achieve and every time the respondent disseminated an image or a video to the users who were in the groups of which he was a member, the potential for instant worldwide dissemination was present. This factor, together with the fact that the respondent actually managed one group, demonstrates the enormous reach of his offending conduct. Sophisticated offending [181] The material in the agreed facts showed a degree of sophistication in the respondent’s approach to the obtaining of material and the dissemination of it. Multiple platforms -- 38 of 41 -- 39 were used over time and the respondent’s categorising and storing of the images on his own computer equipment demonstrated a methodical and organised approach. This was not the conduct of some amateur, experimenting or diffidently exploring the possibilities. This was a determined, prolonged, sophisticated and unrelenting pursuit of pernicious material that by its creation, possession and dissemination, revelled in the dehumanising degradation of extremely vulnerable babies and toddlers, as well as prepubescent children. The respondent was an administrator of a group [182] As mentioned earlier, the learned sentencing judge was led into error insofar as the sentencing proceeded on the basis that the respondent was not an administrator of any group at all. He was, in fact, the administrator of a group that had about 61 members at the time of investigation. [183] Mr Crowley QC did not rely upon that error as a distinct ground of appeal, but submitted that it signified that the objective seriousness of the offending conduct had not been fully appreciated or weighed by the learned sentencing judge. [184] I respectfully agree with that submission. The respondent’s conduct went beyond mere participation, however deeply and sophisticated. He actually administered a group of like-minded persons, dealing in the trade of child abuse material of the kind examined above. The groups (collectively) had over 3,600 images and 2,000 videos posted to them. Just how much was received by the group administered by the respondent cannot be said, but the overall amount was very substantial and the content of the most dehumanising and degrading kind. Sentence manifestly inadequate [185] The learned sentencing judge had time to reflect upon the sentence and was not said to have missed any point in characterising the offending conduct, with the exception of the respondent’s role as manager of one group. [186] However, whilst the learned sentencing judge outwardly characterised the respondent’s conduct in condemnatory terms that were appropriate in the circumstances, a proper characterisation of the depth of depravity involved in the respondent’s conduct, and its despicable encouragement of the defiling and abuse of babies, toddlers and children, did not, in my view, warrant a sentence sitting at the halfway mark of what was the maximum sentence. The respondent received a total effective sentence of 12 years’ imprisonment with a non-parole period of six years. The maximum sentence on count 1 was 25 years. That result was, in my respectful view, manifestly inadequate. The factors I have listed above in paragraphs [161] to [181] above demonstrate that this case did not fall at the mid-point of the possible sentences recognised by the Criminal Code; it sat well above it. [187] There was, in my view, no point whatsoever in advancing or considering the decisions in R v KAT and R v Dowd. Both of those cases are simply dwarfed by the respondent’s case in terms of the seriousness of the offending conduct, particularly as the central theme involved sexual abuse of newborn babies, babies and toddlers, and the subjection of those children to not just sexual abuse but torture, bondage, bestiality and dehumanising degradation. That degradation even extended to dead babies when one user sought from the respondent “Any dead baby, toddlers?”, and the respondent -- 39 of 41 -- 40 provided in response five child abuse images involving: (i) a baby’s backside with severe black burn marks all over; (ii) a mutilated dead baby; (iii) a dead baby coming out of the anus of an adult male; (iv) a severely burnt deceased baby; and (v) a mutilated dead baby in garbage. [188] Further, by examining those non-comparable cases at length there was a real risk of being distracted from a proper assessment of the objective seriousness of the offending conduct. In my respectful view, that risk came to pass here. [189] It therefore falls to this Court to re-sentence the respondent. [190] In accordance with s 16A(1) of the Crimes Act, the sentence that is imposed must be one of a severity appropriate in all of the circumstances, fixing the minimum period that justice requires the offender to serve in custody.76 The minimum term to be served must be determined having regard to all the circumstances of the case. The same sentencing considerations that are relevant to the head sentence are also relevant to fixing the length of the non-parole period. Those principles include: (a) general deterrence is the primary sentencing consideration for an offence involving child pornography material; (b) there is a paramount public interest in promoting the protection of children as possession of child pornography material is not a victimless crime, and its possession creates a market for the continued corruption and exploitation of children who are sexually abused in order to supply the market; (c) the fact that an offender has no relevant prior convictions carries less weight in sentencing for such offences; offending involving child pornography material occurs at an international level, and the internet facilitates ready access to such material, making it difficult to detect in light of the anonymity that the internet provides; (d) the subjective circumstances of an offender must not overshadow the objective gravity of the offences themselves; and (e) where material has been disseminated, the number of persons to whom it was disseminated is relevant. [191] In my view, the general principles for sentencing for cases such as this, as outlined in R v Howe77 and in Lyons v R,78 compelled the conclusion that the offending conduct in this case warrants a greater sentence on count 1, to reflect the overall criminality of counts 2 to 8. Count 1 carries a maximum penalty of 25 years’ imprisonment. Allowing for accumulation between the offences, and reflecting the overall criminality, it is my view that a sentence of 16 years’ imprisonment should be imposed. [192] In respect of the non-parole period, there is no statutory ratio or “norm” for an offender sentenced under the Crimes Act 1914 (Cth).79 [193] The sentence imposed in this case does not properly reflect the gravity of the offending, the importance of general and specific deterrence, and the need to 76 Hili v The Queen at [36]-[44]. 77 [2017] QCA 7 at [25]. 78 [2017] NSWCCA 204 at [76]. 79 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45. -- 40 of 41 -- 41 adequately punish the offender. Moreover, there is nothing about the respondent’s personal circumstances (which were accurately summarised by the learned sentencing judge) that justifies the imposition of a non-parole period that is lower than that which has been imposed in other matters involving offences of this type, at appellate level. Sentences for offences of this type often attract a non-parole period beyond the halfway point of the head sentence.80 [194] In my view it is appropriate to impose a non-parole period of ten years. [195] I propose the following orders: 1. Allow the appeal. 2. Set aside the sentence imposed in respect of count 1 on 18 February 2020 insofar as it ordered that the offender be imprisoned for a period of 12 years, and that parole eligibility be fixed at 18 February 2026. 3. Order that the respondent be imprisoned for a period of 16 years. 4. Pursuant to s 19AB(1) of the Crimes Act 1914 (Cth), order that the date the respondent is eligible for parole be fixed at 18 February 2030 (10 years from 18 February 2020). 5. Otherwise affirm the orders made on 18 February 2020. [196] PHILIPPIDES JA: I have had the considerable advantage of reading the reasons for judgment of Morrison JA and agree for the reasons expressed by his Honour that the sentence imposed by the sentencing judge was, in all the circumstances, manifestly inadequate having regard to the overall objective seriousness of the offending considered in its entirety. In particular, I agree with his Honour’s conclusion that this case does not fall within the mid-point of the possible sentences recognised by the Criminal Code (Cth). The particularly heinous nature and extent of the respondent’s offending, together with its prolonged duration, necessitates the conclusion that this case sat well above the authorities referred to as comparable cases. [197] I also agree with his Honour’s proposed orders in re-sentencing the respondent for the reasons his Honour has stated. While factors such as the respondent’s lack of criminal history and other subjective circumstances are relevant to the exercise of the sentencing discretion, the very serious nature, extent and duration of the respondent’s offending in this matter, called for the imposition of condign punishment that adequately reflected the important need for general deterrence and the community’s repulsion of the trade in child sexual abuse material which the offending facilitates and sustains. [198] CROW J: I have read the reasons of Morrison JA and agree with those reasons and the orders his Honour proposes. 80 Examples are: R v KAT [2018] QCA 306; Lyons v R [2017] NSWCCA 204; R v Linardon [2014] NSWCCA 247. -- 41 of 41 --