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DPP v Ferguson [2022] VCC 1101

The offender was sentenced following pleas of guilty to 1 count of using a carriage service to procure a person under 16 and 1 count of using a carriage service to solicit child abuse material contrary to the Commonwealth Criminal Code.  

Nature and Circumstances: Both offending involved seeking explicit images from ‘Lucy’ with discontinuous contact with significant gaps. Although nine years older than the age of the supposed child, offender made no real attempt to hide their identity. Offending did not involve sending sexual images or videos or offering inducements. Objective seriousness of is moderate for Charge 1 and very low for Charge 2. Offender’s belief that a 14 year old called ‘Lucy’ existed and was not fictitious does not lessen their culpability.  

Rehabilitation: Psychologist opinion was that offender’s actions were due to psychosocial immaturity. Offender’s prospects of rehabilitation are very much dependent on their ability to tackle their use of drugs and underlying psychological issues. If given the opportunity, it is expected the offender would try to tackle such issues. To that extent, offender’s prospects are favourable.  

Mental Condition: Psychologist opinion establishes the less restrictive Verdins limb 5, not the more onerous limb 6, and is accepted. Imprisonment would aggravate offender’s symptoms of depression and anxiety and be more difficult for the offender as opposed to another person without the offender’s difficulties. Hardship moderates the sentence that would otherwise be imposed.  

Antecedents: Offender’s childhood was not a catalogue of circumstances meriting profound deprivation, dysfunction or disadvantage. However, there was a significant event of the suicide of the offender’s father when they were very young. One supposes this was and remains a very significant blow to the offender. Offender continued to live with their mother and experienced difficulties at school. Offender’s use of drugs was to compensate for an abnormal psychological state, being their social anxiety and low mood. Bugmy considerations apply to offender to moderate their moral culpability.  

Offender sentenced to a community correction order of 15 months subject to special conditions and obliged to report as a registrable offender under the Sex Offenders Registration Act 2004 for 15 years.
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