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CDPP v Harper [2020] VCC 1786

sentence — 2 counts of using carriage service to transmit child pornography contrary to Commonwealth Criminal Code — additional state offences — victims of offence — s 16(A)(2)(d) — trade and exchange of child abuse material supports industry founded on exploitation of children by depraved minority of adults — exploits vulnerability and innocence of children — offender has exploited children by participating in use and circulation of materials — offender did so as part of own fantasy and desire for sexual gratification — general deterrence — s 16A(2)(ja) — sentence imposed must deter others from becoming involved in possession, viewing and transmission of child abuse material — sentence must denounce offending on behalf of community and protect other children from becoming victims — nature and circumstances — s 16A(2)(a) — offending spans period of just over 4 years — conversations occurred repeatedly and regularly over period of 6 months — creation of text dialogue around pictures and videos of young children was at times particularly degrading, graphic and concerning — dialogue around incest themes has potential to inspire or support such behaviour and is inherently dangerous — serious offences as they directly reflect trade in materials and creation of demand for it — significant overlap between charges — all 3 Commonwealth offences occurred within single conversations — production of child abuse material relates to text conversations and not in any way being involved in creation of images or videos — material transmitted by offender of lesser volume than received and generally of a less serious nature — specific deterrence — s 16A(2)(j) while committing offences offender held position of General Manager within Victorian Correctional system — community expects persons in such roles to be of highest integrity — hardship to offender — while not meeting high standard of exceptional hardship loss of income and ongoing limitations are relevant to considerations — sentencing judge took into account extra curial punishment of publicity and loss of employment as well as involvement of DHHS — time in custody will be difficult — offender likely to serve sentence in protective custody — risk of negative treatment by other prisoners some of whom may have been under offender’s supervision — risk of negative treatment from custodial officers who feel offender has betrayed former role — upon arrest online group emerged focussed on offender with distinct level of vitriol in exchanges — guilty plea — s 16A(2)(g) — offender pleaded guilty from outset — in context of COVID-19 pandemic plea carries particular weight — it was open to offender to take course which would have seen them remain on bail for considerable period of time — offender entitled to discount in sentencing for prompt resolution of matter in those circumstances — COVID-19 — offender entered custody during pandemic which meant immediate period of isolation — it is unclear for how long restrictions will last however prisons will likely be some of last places where restrictions will ease — rehabilitation — s 16A(2)(n) — after being bailed offender sought treatment with psychologist — despite seeing psychologist for over 12 months offender has not started sex offender treatment — offender is still at start of rehabilitation journey — sentencing judge cautious in accepting assessment of being at low risk of reoffending given that offender has not engaged with psychologist in discussion around offending — further psychological risk assessment is also cautiously accepted — offender claimed to psychologist to have no sexual interest in child pornography — claims are difficult to reconcile with online conversations and admissions — psychologist seems to have accepted claim that any interest in this type of material is gone — offender has minimised offending — claims are more likely part of positive impression management due to difficulties in acknowledging negative aspects — positive prospects for rehabilitation — contrition — s 16A(2)(f) — sentencing judge did not accept explanation that this was intellectual pursuit — claim does not explain why offender saved hundreds of images — offender may have unwittingly created narrative which does not confront true motivations admitted in interview — offender claims to not have considered that they were causing harm to young and vulnerable people — offender has now expressed abhorrence and self-loathing at offending — offender sentenced to 4 years’ imprisonment for Commonwealth offences to be released on recognisance after serving 14 months — total effective State term of 3 years’ and 5 months — 12 months cumulation of Commonwealth offences on State offences — offender will simultaneously be subject to State parole and Commonwealth recognisance — s 6AAA — but for pleas of guilty global sentence imposed would have been one of 5 years’ and 8 months imprisonment with 4 year and 5 month non-parole period      
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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