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DPP v Wilkinson [2021] VCC 675

The offender was sentenced following pleading guilty to using a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to s 474.27A of the Commonwealth Criminal Code.  

Nature and Circumstances: Offence relates to sending of a single image. Photograph of naked torso and partially covered genitalia was undoubtedly indecent in context of it being intended for viewing by a 14-year old child. It was at the lower end of the scale of explicitness. There was an age gap of greater than a decade between offender and intended recipient. While victim was not someone with whom offender had special duty of trust, offender was a schoolteacher at time of conduct which adds to moral culpability in seeking to expose a child to such an image. Absence of a real child victim represents absence of an aggravating feature rather than something mitigating conduct.  

Contrition: Where there is no victim per se the concept of remorse is not really about understanding of the damage offender’s actions have caused and empathy for those who have suffered that damage. Contrition is about offender’s understanding the wrongfulness of their actions and an acknowledgement of the damage actions could have done. Offender initially provided an account to police that was untrue on the core matter as to whether offender sent a naked image after knowing victim was under 16 years of age. Until offender entered plea they contested the very concept as to whether the communication was indecent. It is appropriate to give credit for some, if not complete, remorse.  

Extra-Curial Punishment: As a result of offender’ actions, their career as a teacher is almost certainly finished. Whilst loss of career for conduct not directly linked to teaching responsibilities is an adverse consequence, it is to some extent balanced by the increased moral culpability attached to offending because offender had a job that gave them special understanding of the vulnerabilities of children. Case has attracted significant and legitimate media coverage. Exposure causing offender significant distress does constitute some level of punishment in itself.  

Offender sentenced to 9 months imprisonment to be released forthwith on recognisance release order with 2 year good behaviour requirement.
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