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Hutchison v The King [2022] VSCA 217

The offender was sentenced following pleas of guilty to 1 count of using a carriage service to access child pornography material contrary to s 474.19(1) of the Commonwealth Criminal Code, 1 count of using a carriage service to access child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code, and 1 count of possessing child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code. Original sentence imposed 5 years imprisonment with a non-parole period of 3 years. Offender appealed on the ground that the original sentence imposed was manifestly excessive.

Manifest Excess: The objective gravity of offending is very high. Over a period of 7 years and 7 months, offender accessed a truly vast amount of child abuse material: 314,860 images and 2,115 videos. That most of the images were from category 1 does little to diminish the objective gravity. Category 1 images are not benign or innocuous. The number of category 1 images and videos should not obscure or distract from the considerable number of higher category images found in offender’s possession. Offender’s early plea, remorse, steps towards rehabilitation, unblemished history, physical and mental health issues all operated in their favour. Presciently, the sentencing judge also took into account family hardship. The original total effective sentence was comfortably within range of total effective sentences available to the sentencing judge. The same is true of the original individual sentences imposed. The nature, duration and extent of offending stands above most comparative cases. It is not to the point to contend that offender did not pay for their access. Children will continually be sexually abused and degraded while there is demand for this material, regardless of whether there is a commercial transaction involved.

Totality: Offender submitted that cumulation on count 3 of 1 year and 8 months was manifestly excessive given the overlap of the counts and the principle of totality. The sentencing judge elected to make the base sentence the most lenient sentence (count 2 — 1 year). Having used the least serious sentence as the base sentence, relatively large cumulation was necessary on the other 2 counts to achieve a result that was proportionate to the criminality alleged. The 1 year and 8 months cumulation on count 3 is no more than a reflection of the low base sentence and any suggestion of manifest excess is illusory.

Appeal dismissed.
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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