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DPP (Cth) v Kanen [2022] VCC 783

The offender was sentenced following pleas of guilty to 1 count of using a carriage service for sexual activity with a person under 16 years of age contrary to s 474.25A(1) of the Commonwealth Criminal Code, 3 counts of using a carriage service to cause child abuse material to be transmitted contrary to s 474.22(1) of the Commonwealth Criminal Code and 2 counts of using a carriage service to procure a person under the age of 16 for sexual activity contrary to s 474.26(1) of the Commonwealth Criminal Code.

Nature and Circumstances: Offending is serious. Offender was clearly aware that the children involved were all aged 14 and under, with a significant age difference of 40 years between the offender and each of them. Ordinarily, this would represent a considerable imbalance in life experience and maturity which must be given some weight. Offender communicated with the children using sexually explicit and graphic language, which increases the seriousness of the offences. Offender asked two of the recipients to engage in sexual activity with them and took steps to travel interstate and meet with them. To some degree, this represents an escalation in the offending. Offending occurred over a period of some 6 months. Behaviour in which the offender engaged was predatory and demonstrated a clear sexual interest in teenage children. While contact with some of the complainants was not initiated at the court’s instigation, the offender responded to these vulnerable young females and took advantage of them. Offending was not sophisticated as offender made no attempts to disguise themselves online and provided personal information, allowing them to be detected.

Mental Condition: Offender has a long-standing diagnosis of schizophrenia. Offender’s first contact with the public mental health service was in the mid-1980s with further psychiatric hospitalisations in 2003, 2004, 2019 and 2021 due to changes to offender’s medication or non-adherence to the prescribed treatment. When unwell, offender presents with persecutory and bizarre delusions, perceptual disturbances and disorganised, sexualised or hostile behaviours. Forensic psychiatrist was of the view that offending occurred due to a combination of distal factors such as enduring mental illness, lack of stable or mature age appropriate relationships, deficits in social functioning and more proximal factors such as the offender’s attempts to establish a causal relationship through dating sites, disinhibiting effects of alcohol and potential deterioration in mental health. Offender’s diagnosis of paranoid schizophrenia could be causally linked, indirectly, to the offending and warrants some moderation of general deterrence. Sentence is to be moderated given the offender’s paranoid schizophrenia has made imprisonment more burdensome and has a serious risk of deteriorating during the course of a lengthy custodial sentence.

Rehabilitation: Offender has been assessed as a low risk of general re-offending in light of their lack of prior criminal history and willingness to engage in therapeutic treatment. Given this is the offender’s first and only contact with the criminal justice system, offender has very good prospects of rehabilitation, particularly if they are able to receive appropriate mental health treatment and with the benefits of suitable programs.

Pre-Sentence Detention: Offender has been in custody since their arrest on 25 June 2020. All of the offender’s pre-sentence detention has been served during the COVID-19 pandemic. Offender has been in quarantine due to prison placements and transfers, and experienced the difficulty of being in custody during a pandemic. Offender has also experienced additional difficulties in custody, including bullying and being assaulted.

Offender sentenced to 35 months imprisonment, to be released after 673 days upon entering a recognisance release order for 18 months in the sum of $500 with conditions. 673 days of pre-sentence detention declared, taking into account the offender has already served 573 days, and to be deducted administratively.
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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