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DPP v Lyons [2023] VCC 11

The offender was sentenced following pleas of guilty to 2 counts of transmitting child abuse material using a carriage service contrary to s 474.22(1) of the Commonwealth Criminal Code, 1 count of causing child abuse material to be transmitted to themselves using a carriage service contrary to s 474.22(1) of the Commonwealth Criminal Code, and 1 count of possessing or controlling child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code. Nature and Circumstances: It appears that real children were abused in order to create the videos and images that offender possessed or that were sent to them. Some images are characterised as being of the more serious type of child pornographic images. The number of images offender exchanged or possessed or sent to other people is relatively small when compared to many other matters of this nature. The text conversations are of a serious and explicit nature. It is not suggested that the conversations represent anything but offender’s fantasy or their imagination. The images and conversations represent very serious offending, but the offending is less than mid-range for each offence charged. Offender’s purpose was their own sexual gratification. Offender is not proximate or responsible for the original abuse of the children depicted. Offending occurred over a period of about 3 and a half months for transmission and receiving, 1 day in relation to count 3, and 1 day in relation to count 4. Mental Condition: Offender’s mental disorders and reduced intellectual capacity as a result of foetal alcohol syndrome reduce their moral culpability and accordingly, the weight that must be given to general deterrence. This is the most important sentencing consideration and the principles outlines in the cases of Verdins, Muldrock, and Bugmy are all relevant to offender’s position. Offender has a diagnosed history of bipolar disorder. Other historical psychological observations include various personality disorders, on top of recurrent anxiety and the consequences of foetal alcohol syndrome spectrum disorder and symptoms related to current alcohol abuse. If there is a serious risk of imprisonment, that will have a significantly adverse impact on offender’s mental health. Antecedents: Offender’s parents separated when they were about 5 years old and they were moved between them until offender was taken into foster care when they were age 11. Offender was sexually abused by a family friend while they were in their care. Offender’s substance abuse commenced when they were only 10 years of age. Considering offender’s significantly deprived background which appears to be related to their offending in several ways, their moral culpability is reduced. Offender sentenced to 32 months imprisonment to be released immediately on recognisance of $500 to be of good behaviour for 4 years under a Justice Plan.
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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