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DPP (Cth) v Toy [2019] VCC 2112

sentence — one count of procuring a person under 16 years of age for sexual activity using a carriage service and one count of using a carriage service to solicit child exploitation materials offence contrary to s 474.19(1) of Commonwealth Criminal Code nature and circumstances of the offence — s 16A(2)(a) — offender did not use threats or intimidation and used their own name — following arrest police found no child exploitation materials in offender’s possession or electronically stored — whilst not mitigating factors, they support that offending conduct not only of offender’s antisocial personality traits but also of being heavily stimulated by use of methamphetamine — lack of escalation in conduct — while offending not in the worst category of these offences “it is bad enough” — antecedents — s 16A(2)(m) — sentencing judge conscious that lack of nurturing, abuse and general disadvantage offender suffered in their childhood in an enduring factor — offender has effectively developed antisocial personality traits in response to dysfunctional upbringing, which have become entrenched with habitual substance abuse, long-term unemployment and homelessness, and a general lack of direction and motivation in their life — guilty plea — s 16A(2)(g) — contrition — s 16A(2)(f)(ii) — plead guilty at the earliest opportunity — although offender does not have sophisticated insight, sentencing judge accepted demonstration of some remorse not only by early pleas of guilty but offender’s acknowledgement of the wrong of such sexual interactions with underage females, the harm it can do, and the considerable shame the offender feels by having entered this category of criminal offending — rehabilitation — s 16A(2)(n) — offender has shown reluctance to engage in any substance abuse treatment or rehabilitation, so it is noteworthy that offender was prepared to attend drug education courses as well as educational programs — offender not previously committed offences involving child exploitation, but lengthy criminal history and failure to engage in community-based sentencing dispositions rehabilitation, entrenched substance abuse and antisocial personality traits cause sentencing judge to be guarded about offender’s prospects of rehabilitation — sentence — given offender’s long history of non-compliance with Court orders and significant personality, psychological and substance abuse issues and total lack of support in the community, a recognisance release order would be setting the offender up to fail — sentence imposed 37 months’ imprisonment with a 18 month non-parole period — s 6AAA — if not for plea of guilty, sentence imposed would have been 4 years and 6 months’ imprisonment with a 3 year non-parole period
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