DPP (Cth) v McIntosh [2016] VCC 622 (19 May 2016)

Judges name: Magistrate Cohen
Judges title: Judge (female)
Judges position: Melbourne Criminal Court
Paedophile protected: alias Donald McIntosh
URL if not listed in article : http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCC/2016/622.html
Paedophile protectors court location: Melbourne
Type of protection : Leanient sentence

Victor - Victims of Child Trafficking-Our Responsibility - #StopTrafficking  | FacebookREASONS FOR SENTENCE

Subject: Sentencing; multiple Commonwealth and state offences; trafficking children; incest; child pornography offences using Internet; producing child pornography of nieces and own babies.

Catchwords: Pleas of guilty; issues of totality; extensive offending using Internet for child pornography; sexual offending against own nieces and filming and distributing images; surrogacy arrangement for birth of own babies intending to use them for own sexual services

Sentence: Cth: 13 years & 7 months; non-parole 8 years
State: 14 years; non-parole 7 ½ years
Total: 22 years imprisonment; non-parole period 15 ½ years

Actual charges combined for this disgusting human being should have been about a hundred years - so he could never touch another child again, however we have another paedophile sympathising magistrate - female, non other - that sung him many praises towards the end of this document. 



  1. Donald McIntosh[2], you have pleaded guilty to 37 charges on an indictment, and one summary charge which you have agreed to have transferred and heard with these matters.
  2. There are 12 charges under Commonwealth laws, namely two charges each of making available child pornography using a carriage service, accessing child pornography using a carriage service, and transmitting child pornography using a carriage service; one charge of soliciting child pornography using a carriage service; three charges of producing child pornography for use through a carriage service and two charges of trafficking in children.
  3. Under Victorian laws, there are four charges of indecent act with a child under 16, 20 charges of incest, one charge of knowingly possessing child pornography, and the summary charge of intentionally visually capturing another person's genital area, a charge known colloquially as "up-skirting".
  4. The maximum penalty for each charge of trafficking in children, and for each charge of incest, is 25 years' imprisonment. The maximum penalty for the charges of making available, accessing and transmitting child pornography using a carriage service was ten years' imprisonment until 15 April 2010, when it increased for each such charge to 15 years' imprisonment. The maximum for soliciting child pornography from 15 April 2010 has been 15 years' imprisonment. The maximum for each charge of indecent act with a child under the age of 16 is ten years' imprisonment. The maximum penalty for the state charge of possessing child pornography was, at the relevant time, five years' imprisonment. The maximum penalty for the summary charge of intentionally visually capturing another person's genital area is two years' imprisonment.
  5. These maximum penalties reflect the relative objective seriousness with which Parliaments, both Federal and State, regard offences of these types, and I have taken them into account on each charge.
  6. The duration, nature and quantity of charges, as well as the combination of both Federal and State sentencing considerations under s.16A(2) of the Crimes Act 1914 of the Commonwealth, and s.5 of the Sentencing Act 1991 of Victoria, with the extra considerations under ss.6D-F of that Act, require me to explain at some length my reasons for sentence in your case. The technical construction of the sentence is also unusually complicated, and will take some time to announce and explain. I am therefore going to tell you at this stage, the effective total sentences that will be imposed, and then I shall explain the reasons, and finally the technical form of the orders I shall make.
  7. Mr McIntosh, your total overall sentence will be 22 years' imprisonment, with a non-parole period of 15 and a half years.
  8. I shall deal first with the circumstances of your offences, and assess their seriousness, both objectively and taking into account the particular circumstances and your role in them.
  9. The circumstances of each offence have been detailed in the prosecution opening tendered as Exhibit 1. As much of the detail in those descriptions is explicit, and some is presently unknown to victims, who are still children, and to those close to them, I shall only describe the circumstances to the extent I consider necessary to adequately enable assessment of the nature and seriousness of this offending.
  10. These charges arise out of your conduct during a period of some six years, until it was all uncovered after a search warrant was executed at your home on 9 December 2014, and your computers and storage devices were seized and examined by police. All charges on the indictment involve serious offending involving sexual exploitation in different ways of children. All appear to have occurred primarily to satisfy your own sexual interests and gratification.
  11. It has been acknowledged through your counsel that every one of the charges against you is a serious charge, and that your behaviour constituted serious instances of each such charge.
  12. The charges largely fall into what I shall categorise as four phases of offending conduct, although it is a slightly different categorisation from what the prosecution outlined to me. Unfortunately, these phases reflect progression into further serious offending, and some of it significant escalation in the nature of the offending.
  13. What I regard as the first phase of your offending, but continuing throughout the entire period, relates to your accessing and sharing of child pornography material over the internet. You are charged that this occurred between October 2008 and June 2014, although you told police that you had in fact started viewing child pornography in about 1994. I am only sentencing you, of course, for the period of the subject of the charges.
  14. You not only accessed through the internet child pornographic images to view yourself, but used various file sharing programs and chat sites to communicate with other users, request images from them, and share or make available material you had in your possession. As your offending progressed to further phases, you produced child pornographic material, which you also made available and discussed with other internet users.
  15. When your computers and storage devices were seized by Australian Federal Police agents on 9 December 2014, and examined, a total of more than 25,000 images and 749 videos containing child pornography material was found. This is the total quantity of child pornography material which is the subject of various charges, as I shall explain further. The total included considerable duplication, in that many of the still images were derived from the videos.
  16. Material identified as child pornography is classified by police under a categorisation model known as ANVIL[3], which divides such material into five categories. Level 1 applies to material depicting sexual or erotic posing of children, but with no sexual activity. Level 2 applies to material depicting non-penetrative sexual activity between children, or solo masturbation by a child. Level 3 applies to non-penetrative sexual activity between adults and children. Level 4 applies to penetrative sexual activity between children and between children and adults. Level 5 includes sadism, cruelty, or bestiality with children.
  17. Charges 1 and 2 are of making available child pornography material using a carriage service between October 2008 and June 2014. Using various online forums, you shared child pornography, making what you had available to other users, some of which you had acquired from others, and some of which you had produced yourself, that being of your nieces or your baby daughters. The quantity of still images or videos you made available in this manner is unknown, but there are online conversations recorded in which you describe pictures and videos which you had, and offered to others. You also made admissions to police that you had shared photos you had made of your two nieces, and photos of your two daughters.
  18. To make available such material to others is more serious misconduct than solely accessing or possessing it. These charges include making available pornographic pictures of your nieces and own babies, exposing these very young children that you professed to love, in a manner that in some instances showed their faces, which can never be retrieved or stopped from being distributed further, and amongst users such as yourself of these sites, for their perverted sexual gratification. I regard that aspect in particular as making this an example of at least medium range of seriousness for this charge.
  19. Charges 3 and 4 are of accessing child pornography using a carriage service between November 2008 and June 2014. The total quantity of material accessed is not known, but when your seized computer devices were examined, the total of material found, which had not been produced by you, was 6,322 images, and 63 videos. These were assessed as containing material in each of Levels 1 to 5 under the ANVIL categorisation, but with more than two-thirds of the images coming within Level 1, but with a considerable number in Level 3, and about half the videos in Level 4.
  20. The proportions of images and videos in each category do not the determine the objective gravity of the offending, because as was recently confirmed by the Court of Appeal in DPP (Cth) and DPP v Garside[4], lower categorisation does not reduce objective gravity of the offending, and categorisation of material is to be considered within the context of the offending as a whole. I note that there was a substantial amount of such material which covered the full range of categorisation levels.
  21. I was urged to view a small sample of the images and videos in this case. I agreed to do, as in my view the majority of higher court authority indicates that a judge in my position in a case such as this should do so at least by viewing a sample to gain an appreciation of the nature and gravity, and indeed, depravity, of the material involved.[5]
  22. Given the total quantities found in your possession, what I saw must have been a very small sample, so I bear in mind that it was selective. I viewed that selection only once, and briefly. Notwithstanding those obvious limitations, what I saw conveyed some examples of the gravity of the exploitation of children in the making of such materials, and the obsceneness of you and others with whom you shared them, viewing any of these for your pleasure. The fear I saw in the eyes of an unknown, very young child facing the video camera as a gross act of sexual abuse was being committed, made a deep impression on me which will be very hard to forget. It is an example of the reality that children are the victims of this type of offending, and their exploitation is promoted by the willingness of people like you to view it, and indeed to seek it out.
  23. Charges 5 and 6 are of transmitting child pornographic material between October 2006 and June 2014. These charges relate to material other than pictures. They are based on the online discussions in which you engaged, often in lewd terms, describing or expressing your preferences as to ages of children and sexual acts with them, describing, usually crudely, sexual acts you would enjoy with children, or anticipated performing, or regretted not having had the chance to engage. In much of transmitting these comments, you were masquerading as a female, but that fiction does not lessen the nature or import of the comments and intentions or wishes expressed. These conveyed implicit desire to promote sexual interactions of different kinds with children, but all would have been illegal interactions with children, as well as ethically and morally reprehensible ones.
  24. Some relate to the children in your family, with whom you had or said you were anticipating having personal sexual contact. This offence reflects totally unacceptable thoughts and descriptions, but does not involve any actual sexual activity with any children.
  25. Charge 7 is of soliciting child pornography through the internet between 17 October 2008 and June 2014. This is based on online conversations in which you are said to have regularly requested child pornography, including specifying the types of pictures and videos, and in some instances, the age of the child and the type of sexual acts sought. I note that unlike in some other cases involving this charge, for example, the recent case of DPP (Cth) and DPP v Watson[6], it is not alleged that you communicated online with children to persuade, trick or coerce them into making and sending pictures of themselves. I therefore regard this charge as another side to the behaviour under Charges 1 and 2 of making available such material. I regard it as less serious than instances of asking children directly to send pictures of themselves in sexual poses or activities, but still as promoting the distribution of child pornography.
  26. Charge 37 is of knowingly possessing child pornography. It is a State charge, and is based on the material found on your computer devices on 9 December 2014, and the same 6,322 images and 63 videos which are the subject of Charges 3 and 4 of accessing such material using the internet. The authorities generally require sentences to differentiate between the subject conduct under State and Federal charges, and that there be some cumulation as between State and Federal charges covering the same offending conduct, to differentiate where there is a difference in the offending act, such as the difference between distributing such material to others, rather than just possessing it for the offender's own viewing.
  27. In this case, each aspect of the use of child pornography by you is the subject of separate Federal charges, so those differences will be reflected in some of the orders I shall make for cumulation, however as between this instance of the State charge of possession of child pornography, which was all found on your computer devices, and Charges 3 and 4 of accessing child pornography using a carriage service the same images and videos, I do not see the need to substantially differentiate between this State charge and the Federal Charges 3 and 4. I have applied some, but only minimal cumulation on the State charge as part of the total State sentence, to reflect this conduct, and less on the Commonwealth charges than had they stood alone. This I have done because of the need for a separate Commonwealth total sentence from the State total effective sentence, but I have tried to avoid double punishment on this aspect of your offending.
  28. Child pornography offences are considered especially grave by both courts and Parliaments. Legislatures have continued to respond to the growth in this activity over the internet by increasing maximum penalties. Indeed, in this case the reason for two charges for each of making available, accessing, and transmitting child pornography, is that from part-way through the overall period of your offending in each such manner, the maximum penalty for each such charge was increased from ten to 15 years' imprisonment.
  29. There has been growing concern over recent years with child pornography proliferation through the ever-increasing reach and use of electronic transmissions and communications. Courts have recognised that sentences for child pornography offences must reflect not only the community's abhorrence of this material, but also the harm to any community from child pornography, and the need to protect children from being exploited by its production.
  30. In the case of DPP (Cth) and DPP v Watson[7], the Court of Appeal recently confirmed matters relevant to sentencing for child pornography offences, adopting the summary by the New South Wales Court of Criminal Appeal in R v De Leeuw[8]. Without quoting those in full, I note that they include determining the objective seriousness of the offending by reference to the nature and content of the material, the age and number of children, and the gravity of the activity depicted; whether sale or profit is involved and length of time for which the material was possessed; that general deterrence is the primary sentencing consideration, with less weight to be given to an offender's prior good character; that offending involving child pornography occurs on an international level, is becoming increasingly prevalent through the internet, and is difficult to detect given the anonymity provided by the internet.
  31. These principles recognise that possession of child pornography is not a victimless crime, and it creates a market for the continued corruption and exploitation of children, even if the individual offender did not pay for it, and that there is a paramount public interest in promoting the protection of children.


  1. Additionally, in my view, your case reflects another of the dangers and evils of child pornography offences through use of the internet. That is the progression from accessing or even sharing material solely to view it, to discussion of it on chat sites with other users of such material, to then yourself engaging in contact sexual offending with children, and to producing child pornography material yourself and then sharing it with others through the internet.
  2. In your case, the offending progressed even further to the decision to arrange for the birth of children for this purpose, as I shall discuss shortly.
  3. This danger in the use or viewing of child pornography is averted to in a report I will refer to later by a psychiatrist, Dr Sullivan.
  4. You engaged in using the internet for child pornography purposes over several years - overall, about six years - disguising your identity and using encryption in your computer, all reflecting that you well knew that what you were doing was wrong, and attempting to avoid discovery, although once detected you were cooperative in disclosing the encryption codes or passwords to police. The number of child pornography images found in your computer devices was substantial and showed that it dated back as far as 2008, indicating that your interest was not fleeting.
  5. The sentences I impose on the charges for this phase of your offending must reflect the already outlined general principles. General deterrence must be the principle sentencing consideration in order to send the message to others tempted to engage in this conduct that stern punishment can be expected. In addition, community denunciation and just punishment are important. Also, specific deterrence is important given your ongoing conduct in engaging in these child pornography offences.


  1. I turn next to charges arising from what I regard as the second phase of your offending. These relate to your conduct involving your two nieces.
  2. In 2008 you began regularly visiting and staying with your brother, his wife, and their young daughters in New South Wales. You would buy presents for your nieces, and take them on outings. When your computer was seized by police in December 2014, they found a total of more than 16,500 thousand images, and more than 100 videos taken in two periods between July 2009 and January 2013, depicting your nieces in child pornography. These have been categorised such that almost 9,000 still images and 159 videos were in Level 1, and the balance mainly in Level 3, but a much smaller number of images in Level 4.
  3. You apparently used your mobile phone to record this material, then copied it from the phone to the computer and made multiple still images from the videos. Your counsel explained that there is software which achieves that process, such that you did not actually take 16,000 or more photos; did not make that many decisions to press a button on a camera. Most of the still images were derived from the videos you took, but there were others, and there was still a substantial amount of this material. You also distributed at least some of these images through the online programs and sites you frequented, and discussed some of the photos of your nieces, and also ways to drug them in order to take further photographs.
  4. Charges 8 and 9 are based on this conduct, namely production of child pornography material. The subject matter under each charge was of both of your nieces, and the two charges represent different periods.
  5. Charge 8 relates to the period between July 2009 and April 2010, when you produced this material at their home. During this period, the elder child was five to six years old, and the younger about four years old. The earliest were of them naked in the bath. Following the transmission by you of some of these photographs, you discussed them online with a recipient, and both you and the recipient engaged in sexualised comments about them, and you stated your regret at not dealing with them when babies. You also discussed wanting to make videos, but would have to drug them to do that. There followed online conversation about the best way to do this.
  6. Charge 8 includes images taken in April 2010, when you were entrusted to mind your nieces for the weekend while your brother and sister-in-law took a holiday. On a chat site, you had commented before that weekend that you could not believe he had actually asked you to look after them for a couple of days, and you asked about how to drug them to film them. The recipient said that he would put in his order now, and referred to what he wanted to see.
  7. On that weekend, you filmed yourself committing various indecent acts against both of them. Both of them appear to be asleep in bed at the time. None of this contact with your nieces is the subject of charges before me. The production of the videos and images you made of that conduct form part of Charge 8 of producing child pornography material with the intention it be used through a carriage service.
  8. The production of this material was a huge betrayal of the trust of both your nieces and your brother and his wife. What was filmed on the weekend when you minded them was clearly planned as revealed on your online chats. This was not spontaneous or an impulsive reaction to temptation, but planned in advance with the means to film it also arranged by you. In my view, this increases the seriousness of the offending.
  9. In January 2013, you next made child pornographic images of your nieces. At that stage, the elder was aged about nine and the younger about seven. This occurred during a four-day period while they stayed at your and your wife's home. Fifteen video files depicting them were found to have been created during that period showing the girls in the bath, shower, and getting changed, and they appeared to be unaware that they were being filmed. The images taken in January 2013 are the subject of Charge 9 of producing child pornography for use through a carriage service. You admitted to producing these for your own use, but also intended to make this material available over the internet to others.
  10. Shown in the one of the videos you filmed in January 2013 while your nieces were staying at your home, was an occasion when you touched the younger niece indecently and had her engage in touching herself. This conduct is the subject of Charge 10, of indecent act with a child under 16. It involves wholly inappropriate behaviour by you, but in my view is less serious than some of the acts described as depicted in videos you produced while your nieces were asleep in the earlier period..
  11. Your actions of producing pornographic pictures of your nieces, and of course also, the indecent act, the subject of Charge 10, were deplorable. As I have already said, this was a huge breach og trust by you against the girls themselves and against both of their parents.
  12. I have read Victim Impact Statements from your brother and sister-in-law. It is clear from those that your nieces trusted you and enjoyed the treats and outings that they had with you. Although still children, they are now aged 12 and 10 respectively and are aware that you are in prison. As your sister-in-law says, her daughters are not stupid and although it is to be hoped that they never find out the full extent of what you did to them, they have had many questions and have been distressed by the limited amount they have discovered.
  13. They are described as each reacting differently, one by closing down and refusing to discuss the matter but evidencing anxiety about her own safety. The other has been more open with her emotions and shown great distress. She has written a poem which is not only moving but particularly insightful, and in my view quite remarkable as coming from a child of her age.
  14. I am satisfied that each of your nieces has been harmed already by your offending, based on their mother's descriptions of their reactions to learning that you are in gaol for offending against them, even though they do not yet know the details or extent of it. There is also a presumption that children suffer harm from not only contact sexual offending, but also being the subject of child pornography[9], that harm including future harm.
  15. An invidious aspect of the internet is that once it has been used to convey images, they can never be wholly retrieved. Given the nature of the sites and users amongst whom you distributed images of them, you must have known and intended that such users would view these images to gain perverted sexual pleasure. It cannot be predicted whether any of these images of them which you produced and made available to such users might come to the attention of either of your nieces or anyone who knows them in the future.
  16. This part of your offending also constituted a profound breach of trust against your brother and his wife. Under the guise of showing your affection and wish for a relationship with their children, and of supporting and helping them, you acquired access to their daughters for your own sexual gratification and to make images for sharing with others of similar illegal sexual likes.
  17. The Victim Impact Statement from your brother, although brief, conveys how deeply hurt, betrayed and angry he feels. He cannot understand how you could have betrayed his personal trust or committed what he calls "these horrible acts" towards his family.
  18. His wife more fulsomely describes the impact on their family over the intervening period, from the initial shock and distress, to her developing depression, her watching your brother grieve, and the struggle both of them have had for a long period to keep a semblance of normal family life continuing for their daughters' sake. Hopefully they are able to continue to rebuild their own relationship and the stability of their home for their daughters.
  19. Although your online offending with child pornography continued, what I shall call the third phase of your offending followed the last of the filming of your nieces. It involves what in my view was a significant escalation in your offending. It was the taking of steps to acquire your own child or children to pursue your sexual activities and filming of them.
  20. Charges 11 and 12 are of trafficking children. These arise from your actions in facilitating the entry into Australia of twin baby girls whose birth was the result of an overseas surrogacy arrangement in which you were the sperm donor and therefore biological father of the babies. Following the birth of the babies overseas in March 2014, you flew with your wife to the country where they were born, took custody of them, signed applications for Australian citizenship, applied for emergency Australian passports for each of them, and in early April 2014 brought them with you and your wife to live in Australia.
  21. The offence of trafficking in children is constituted by a person organising or facilitating the entry or proposed entry into Australia of a child under the age of 18 intending that the child be used to provide sexual services or otherwise be exploited, either by the person facilitating their being brought to Australia, or one or more others after entry into Australia. The maximum penalty of 25 years' imprisonment for this offence reflects the very serious nature of such an offence as objectively assessed by Parliament on behalf of the community.
  22. You have pleaded guilty to this charge, acknowledging that you did intend each child to be used to provide sexual services. There were several online conversations before their birth in which you told of the pregnancy, in which you described various ways you wanted to sexually use a female baby for your sexual pleasure. Although you were masquerading as female in those conversations, you discussed acts of sexual abuse which you intended to occur. These conversations contain gross and disgusting expressions of what you would like to occur with the babies once born, at least one of which you did subsequently carry out.
  23. These online conversations substantiate that your intention on bringing them into Australia was for you to sexually use and exploit them. You had expressed preference for sexual activity to be with babies and very young children preferably under age 5. The fact that you did commence such abuse of these babies after their arrival in Australia, the first occasion with one baby only days after arrival in Australia, also confirms that that was your intention when facilitating their entry into Australia.
  24. I regard these two charges as the most confronting in this case, albeit amongst many other very serious charges. While the charges relate to your facilitating their entry into Australia with the intention of sexually exploiting them, I take into account as an aggravating factor the context that you in effect had entered in an arrangement for these babies to be born with that intention. Those actions coupled with bringing the babies to Australia and carrying through with the intention to use them for sexual services - although the latter is covered in subsequent charges - strike at the core of community notions of the joy and privilege of having children, and with it the responsibility to nurture and protect them.
  25. This offending was well planned and there was nothing impulsive or spontaneous about your decision to engage in it.
  26. Further, this was against a background of having not wanted to have children for many years during your marriage and then, after finding pleasure but unfortunately also sexual gratification through your interaction with your nieces, you deliberately entered into an arrangement whereby your own biological children would be born and brought to Australia for you to act out your sexual preferences with them, and ultimately share images of that with others of your perverted sexual tastes.
  27. Your counsel submitted that adjectives for your behaviour were unhelpful. However, in my view the adjective "depraved" is warranted and appropriate to describe your role in these two offences. However, and while in no way minimising the gravity of your conduct nor the need to thoroughly denounce and punish it, I do not assess these as the worst possible instances of this offence. There are features absent here which, were they present, could conceivably give rise to worse possible instances.
  28. First, there is nothing to indicate that you had any financial motivation. Indeed, you and your wife had paid considerable amounts for the surrogacy arrangement, and the intended exploitation was not apparently for your financial gain. If you had had that motivation, it would have been an aggravating factor.
  29. Nor was there any physical violence or coercion involved. Also, while it was a calculated plan by you for them to be born and brought to Australia for your intended sexual exploitation of them, there was no abduction or forced removal of them from an existing family or existing relationships.
  30. Further, while I am satisfied and you have admitted that you had the intention to sexually use these children when you facilitated their entry into Australia, I am not satisfied that that was your sole purpose in entering first the surrogacy arrangement or the facilitating of bringing them to Australia. You knew that it had long been your wife's desire to have children, and so your actions were achieving that for her, and I accept that you have expressed genuine regret for the impact on her of having these long-desired babies removed from her care by DHHS as a result of the uncovering of your offences. Also, I cannot exclude that you anticipated some pleasure in having these children in your life apart from the intended sexual gratification.
  31. All of these factors in my view show that it is possible to conceive of even more grievous and culpable examples of this offence, and why I do not assess it at above a medium-level of seriousness for such an offence.
  32. I was informed that there has been only one other case of conviction on this charge in Australia as opposed to the longer-standing offence of trafficking adults for this purpose. I have read that single case, R v KAK[10], and have considered the relative gravity of the circumstances in that case compared with the present one. In that case, the offender was a mother who arranged for her daughter to be brought to Australia. The daughter was aged nine when first brought to Australia for a visit and first sexually exploited, and aged about 11 when the offender arranged for her to be brought permanently to reside in Australia and to engage in providing sexual services in the offender's business.
  33. There was therefore a commercial or profit aspect, and ultimately the physical exposure of that child to multiple customers although the offender apparently placed what she regarded as protective limits on the acts that could be required of the child.
  34. In comparison, in your case there was no profit or commercial motive. However the extremely young age of the children in this case in my view increases the gravity. As newborns, they could not have been more vulnerable or more dependent on you, and the intention to sexually exploit them as newborns and throughout their earliest childhood years could hardly be more morally repugnant. That your intention as their biological father was to engage in sexual activity yourself with them in my view even further increases the gravity of your intentions.
  35. Conversely, at such a young age they would not have been immediately aware of the implications of what you were doing compared with a child aged nine or eleven as in KAK's case. By this I mean that I assume that they had no immediate apprehension of what you were intending to do with them. That does not mean that I take them to have suffered no harm from these offences. On the contrary, I take the reasoning in Adamson's case to extend to this charge, and there to be a presumption that they will have suffered harm including future harm on becoming aware of why you arranged to bring them to Australia.
  36. In KAK's case, the sentence imposed initially was nine years' imprisonment on that charge which was reduced on appeal to seven years. Notwithstanding the need for consistency in sentencing and for taking into account current sentencing practice[11], a single other case for comparison in my view should not be taken as current sentencing practice. I regard both your case and KAK's case as serious examples of trafficking children, both involving huge betrayal of the offender's own child - in your case, two children.
  37. I have concluded that your sentence on each of the two charges of trafficking children should reflect that the circumstances were more serious in your case particularly due to the extremely young age of the children, but as there were some aspects less serious the sentences should only be slightly higher than in the other known case.
  38. I accept as submitted by your counsel that there should be considerable concurrency in the sentences for these two offences as they were concurrent identical actions under each of these charges, and that in filling out applications for Australian citizenship and emergency passports and bringing the children into Australia, you were not engaging in two separate courses of action but performing identical acts concurrently in both. However, there were two children who were brought into Australia in these circumstances, albeit at the same time. Each charge requires the same individual sentence, and I have imposed a small degree of cumulation to reflect that there were in fact two children, not one, who were the subject of this aspect of your offending.
  39. This offending requires sentences stern enough to unequivocally denounce and express the community's condemnation of your conduct, to punish you, and for general deterrence to send the message to others tempted to engage in a similar activity that such offences will attract very stern punishment. In the circumstances for these charges, I doubt that specific deterrence is particularly necessary.
  40. Within days of bringing the two babies back into Australia, you commenced what I have categorised as the fourth phase of your offending: acts of sexual assault against your baby daughters and producing child pornography by recording those acts.
  41. On 9 April 2014, you committed an indecent act on one of the babies - that is Charge 14. From early May, you engaged in a further 39 acts that constitute sexual assaults against one or other of them. You photographed all of these, enabling police to identify each act and its timing.
  42. The indecent acts included rubbing your penis on various parts of their bodies, ejaculating on them, and using tongs on them obscenely. Amongst the small number of images I viewed of what you filmed, I saw acts amounting to grave violation of these children.
  43. Charge 34 is a rolled-up charge of four occasions when you committed an indecent act known to be with the child first assaulted on 9 April. There were five indecent acts known to have been committed against the other baby, being the subject of Charge 35 of indecent act with a child under 16. Charge 36 is also of indecent act with a child under 16, based on seven occasions where acts were filmed by you but it was not possible to determine which of the two babies was involved.
  44. Commencing about a month after bringing the babies to Australia, and continuing over the following months until 23 November, there were twenty acts with one or other of the babies which constitute incest, the subject of Charges 14 to 33 inclusive. Incest in this case is alleged as sexual penetration with a child known to be your own child. These acts variously involved vaginal or anal penetration by use of an object such as a dummy or a sex aid or of your fingers, or oral penetration by your erect penis, or partial penetration by your penis of a vagina. These offences occurred against both babies but, as I have said in relation to the indecent acts, also in some instances of incest it has not been possible also to determine which of the two was the victim.
  45. By November when the babies were about seven months old, you used baby food on your penis as part of your sexual offending with them, committing one act of penetration with one baby and with the other, an indecent act.
  46. You filmed all of these occasions, creating images on your mobile phone which you subsequently uploaded to your computer. From video files, large numbers of still images were also made. In total, there were 29 videos and 279 images - although as I have said, many of them were generated from the videos - depicting your babies, which are characterised as child pornography. They have been assessed as falling within three levels on the ANVIL classification - one video and about 40 per cent of the still images in Level 1, and the balance falling into Levels 3 and 4. Production of this material is the subject of Charge 13 of producing child pornography material for use through a carriage service.
  47. You made admissions to police of having shared child pornography material that you had produced of your two babies using online file-sharing programs, and that your intention in making the photos and videos of them was for your own enjoyment but also to share.
  48. A total of 59 child pornography images amongst those depicting your children include messages written on a nappy in black marker, apparently so as to prove that you were actually present. This was apparently for a child pornography forum on the TOR Network known as “Hoarder’s Hill”. You used the username of “Candice” in doing this.
  49. Obviously the immediate victims of what I have called the fourth phase of your offending were your twin baby daughters, but they have no ability to express the impact on them yet. To describe your offending against each of them even as briefly as I have done needs no adjectives to emphasise its seriousness. All adults have responsibility to avoid sexual abuse of any child, but for a father to have any sexual activity with his own child is a gross breach of trust, of parental responsibility, and of community expectations, which must be condemned unreservedly. It violates all notions of a father protecting his child from harm when he becomes the perpetrator of that harm.
  50. Notwithstanding how young these children were, it is to be presumed that they have suffered harm including future harm. To have any sexually oriented state of mind towards such very young children is disgraceful, but when they are your own daughters, and for you to act on perverted sexual inclinations with them, was beyond description. Finally, to film yourself doing so then share some of these images with others of your sexual inclinations compounded the seriousness of this period of offending.
  51. All that can be said in any amelioration of the seriousness of this part of your offending is that it did not include physical violence or torture, so did not inflict serious or long-term physical injuries, and was for relatively short periods, some separated by a few weeks at a time.
  52. I have read and taken into account the victim impact statement from your wife. She describes her life having been totally devastated by you. She had known you since childhood, been married to you for more than 25 years and in one day learned that the man she had trusted as a kind and caring husband, and more recently father of the twin babies, had been sexually abusing those babies, and indeed had a hidden side to your life altogether.
  53. Her life has been very significantly changed by the uncovering of your offending. She has suffered not only the emotional impact of learning that the trust she placed in you and belief in the support in your relationship over many years had been broken. She has suffered financially as you had been the main earner in the family and without your salary, your home has had to be sold. Clearly of great impact has been that the babies were taken by child protection authorities on the day of your arrest, and your wife has been striving to regain custody of them ever since. She has had supervised access visits but still is fighting in Children's Court proceedings to regain full custody of them.
  54. Finally as part of your offending, there is a summary charge which does not fall within any of the categories or phases into which I have assigned the other charges. It arises from your conduct on three dates in October 2014. When using a mobile phone, you created five video files of adult females in public places, mostly on public transport. It appears that you had modified a backpack for the purpose of concealing within it a mobile phone and using it to approach females in public places and placed the backpack in a manner that angled your mobile phone to capture the underwear and genital area of these females. It appears that none of these people was aware of being filmed in this manner.
  55. This part of your offending behaviour is significantly less serious than any of the offences on the indictment. The maximum penalty, and this being a summary offence, reflects the comparatively lower seriousness with which this offence is regarded by Parliament. However, the fact that this is an offence punishable by up to two years' imprisonment still reflects that it is behaviour that calls for public denunciation.
  56. There were five unknown adult women filmed. The fact that these were adults being filmed and the timing of your engaging in this different conduct has not been the subject of expert analysis as to what it discloses of your motivation or possible progression into yet another phase of offending, so I draw no conclusions about that, other than to note that it was outside the preferences you had expressed for some years online for young children; girls under ten and preferably under five years of age.
  57. The most significant factor in mitigation of your sentence is that you have pleaded guilty to all of these charges. You are entitled to significant leniency for this due to a number of factors, although there is some variation of their application between different charges in particular between federal and state charges.
  58. From the day that police executed a search warrant and arrested you, you made admissions about your conduct even briefly confirming to your wife that you had been offending, albeit specifics were not discussed. You cooperated with the police investigation by providing relevant passwords and usernames when requested. Although the final form of charges was not settled until sometime later, there was an indication from a very early stage that you would be pleading guilty to appropriate charges.
  59. In my view, under both state and - if there is a difference - Commonwealth sentencing principles, you are entitled to the maximum allowance of leniency for pleading guilty in the overall circumstances of this case.
  60. Your cooperation and pleas of guilty are consistent with your personal preparedness to facilitate the course of justice. In your case, I am satisfied that that willingness went further. By admitting to your wife on the day of your arrest and by implication to your brother and his wife the offending which affected them, you certainly facilitated the course of justice. Not only were they not required to give evidence in any court hearings, but you told them enough that none of them would harbour any personal doubts about your guilt. I regard that as reflecting the fullest preparedness to facilitate the course of justice and relieve close family members of the stress of wondering about or doubting your guilt.
  61. The confronting and highly sensitive nature of the subject matter of these offences did not have to be fully aired or tested in public, another reflection of your facilitating the course of justice.
  62. Under principles enunciated in Phillips v R[12], so far as the law in this state is concerned, you are entitled to a very significant allowance for the utilitarian value of saving the time and cost of disputed hearings, and the stress and embarrassment to close family members having to give evidence, and what in my view should not be overlooked in this case - the stress to even professional witnesses. This includes the police who have had to view material to assess its level under categorisation protocols, and might have needed to explain why they made such assessments or the basis of them in court hearings.
  63. Although submitting that the Commonwealth does not concede that utilitarian value of a plea of guilty as described in Phillips' case applies to Commonwealth charges, the prosecutor in this case, Ms Breckweg, conceded that it would not be a sentencing error for utilitarian value to be taken into account in this case.
  64. I apply the utilitarian value unreservedly in relation to all of the state charges. As 25 of those involve sexual offences against your baby daughters, I regard that utilitarian value as very significant on them alone.
  65. I regard your pleas also to be of utilitarian value in relation to the Commonwealth charges, but in particular, those involving your nieces, and sparing their parents, and perhaps even themselves, from being required to give evidence.
  66. Your pleas of guilty reflect that you have acknowledged your guilt and taken responsibility for your offending. That is also reflected in the letter which you wrote to the court, in which you apologised for the impact of these matters on all concerned, even including those confronting it in a professional capacity in this court.
  67. Related to your pleas of guilty, and also of significance in mitigation, is that you have fulsomely expressed your remorse and contrition for your offending, both orally to professionals who have interacted with you, and through your letter to this court, and consistent with your pleas of guilty, you have expressed deep remorse for your offending.
  68. You acknowledge that your actions have caused irrevocable harm to your wife and your brother and his family. Your only visible sign of emotion in more than a day and a half in front of me in this court, was during the first day of the plea hearing, when your wife's victim impact statement was read out. I sensed that you deeply regret the hurt and consequences you have caused to her. You have expressed that also in your letter.
  69. In that letter to the court, you show considerable insight in reflecting that you have ruined the family, and that in your offences against your baby daughters, you have destroyed what had been so long and hard to acquire.
  70. The sad fact in this case is that your relationship with your wife, and the babies who are your daughters, as well as the relationship with your brother and his family, are most probably irretrievably lost to you. If not for the rest of your life, then at least for the foreseeable future. You face a long and lonely time in prison. Your sentence will be of many years, such that you will have no opportunity to re-establish any personal family relationships for the foreseeable future, unless any of those you have so seriously harmed by your offending, decide to make contact with you.
  71. Your contrition is, from what I have seen, substantial and real, and consistent with your stating that you felt some relief that your offending had been discovered. I take that to mean that it was brought to an end in that manner. Both for your pleas of guilty and what I find to be genuine remorse and contrition, you are entitled to considerable leniency in your sentence.
  72. That attitude by you is also consistent with there being some prospect of you rehabilitating yourself whilst in prison. You are apparently amenable to undertaking programs to address the various aspects of your sexual offending, and learning to recognise and avoid precipitating circumstances in the future.
  73. I turn now to your personal circumstances. You are now aged 49. You were aged between 42 and 48 over the period of the offending.
  74. You were born in Germany and moved to Australia with your parents at an early age, such that at least by the age of five or six, you had started primary school in New South Wales.
  75. You are the oldest of three children and grew up with them in a stable family. Both of your parents worked. Your mother was apparently a very heavy drinker of alcohol, but it is not suggested that this exposed you to particular trauma. You apparently resisted parental ambition for you to engage in tertiary studies, in pursuit of a relationship with a girlfriend. You left school midway through Year 11 to pursue employment, as you wanted to spend more time with her and to earn money to support her.
  76. You commenced working as a labourer laying carpet. You went on to work for an electrical company in Sydney, and then obtained employment with a locksmith supply company where you were employed ultimately for some 26 years up until your arrest. During employment with that company, you moved to Melbourne.
  77. In 1992, you married, having known your wife since you were childhood neighbours, and then having re-established that friendship in adulthood. Your wife moved to Melbourne to live with and then marry you. Although at one stage you both relocated to Sydney when her mother's health was deteriorating and she wanted to be closer to assist, you subsequently both returned to live in Victoria. Together you bought a five acre property in regional Victoria as part of what was called “a tree change”, with your wife working from home and you commuting to Melbourne for work.
  78. The marriage had had its problems, including two periods of separation. The problems also included that in the early years, you did not want children, and subsequently through your wife's desire, but inability, to have children. There were also issues in your sexual relationship involving some fetishist behaviour by you. Ultimately, some ten years before these events came to light, you and your wife ceased sexual relations and slept in separate rooms. You apparently kept your computer devices on which you engaged in the various child pornography activities on the internet, in your bedroom area. Nevertheless, she describes there being an ongoing caring and supportive relationship between you, in which she placed trust, and you continued to be a supportive, hardworking provider for her and for the babies, until your hidden offending was uncovered.
  79. In more recent years, when you expressed some indication of a willingness to have children in your life, as I have said, unfortunately after the interaction with your nieces, you were willing with your wife to engage in attempts at IVF, and subsequently applied to become foster parents but were not accepted as suitable. Your wife had been delighted when you expressed willingness to attempt an overseas surrogate arrangement, for which you would be the donor for the pregnancy. The warped purpose for which you wanted that was unknown to her at the time.
  80. There is very little explanation for your involvement in the offending that is before this court.
  81. You have no relevant criminal history. You have no history of drug abuse, and although at times you have been a heavy drinker, it has not appeared to get you into criminal trouble, or not for more than the last 30 years. There was a suggestion that you may have been affected by alcohol when committing at least some of these offences, but that could be no excuse, and in my view, does not explain the planning, the disguising of your identity online, nor the careful and pre-considered arrangements you undertook.
  82. Through an account you wrote of your life, when applying to become foster parents some years ago, you outlined what would appear to most people to describe a stable, hardworking and responsible member of the community. Of course what was not outlined was your secret involvement with the internet based child pornography use, nor the contact offending with your nieces.
  83. As I have said, you have a long and stable work history, were married for some 26 years, and appeared to your immediate family to be a kind and caring person.
  84. You have no record of previous contact with mental health professionals, although with hindsight, you may have been suffering some symptoms of depression at various times in your life, as you have told Dr Sullivan your wife has in the past suggested to you. Dr Sullivan suggests alcohol may have contributed to lower mood also.
  85. You were referred for psychological assessment for this case to Dr Dion Gee, a forensic psychologist. I shall not repeat the extensive considerations he discusses in a report provided in March this year. He assessed you as currently displaying somewhat anxious and depressed mood, but with no formal thought disorder. Although he did not formally assess your cognitive capacity, his subjective impression was that your cognitive functioning falls within the average range.
  86. He noted that after you were initially placed in custody, you made an attempt to end your life, but describe yourself as “too weak” to go through with that attempt. In discussing your mental health needs, he considered that you showed minimal insight into what specialist intervention might involve, and were unaware that your mental functioning might be relevant to the risk of future offending behaviour. He sets out that you said that if given the opportunity, you would want to express to the court that you are sorry for destroying all these lives, for these people who trusted you and loved you, consistent as I have already said, with what you have expressed in the letter to the court.
  87. Dr Gee considered that your depressive pathology emerged within the context of court related matters and he could not find a causal connection between it, or any other aspect of your psychological pathology and your offending.
  88. He considered that you present with distortions in your underlying sexual scripts for intimacy, and social skills deficits, emotional and behavioural miss-regulation, and that you appear vulnerable to act out in an aberrant manner the sexual objectification of others.
  89. He considered you currently present with an underlying mood disorder of moderate severity, in partial remission, which I take to be the reference to your depressive symptoms. He considered you meet the DSM5 criteria for diagnosis of Avoidant Personality Disorder, for a Transvestic Disorder with fetishism, in partial remission. You also meet diagnostic criteria for Paedophilic Disorder.
  90. Dr Gee applied risk assessment tools and concluded that your historic level of risk is in the low category, but that you represent at least a moderate risk of reoffending sexually at the present time, and in the future. Your present circumstances will moderate that, and any sex offender program you undertake should be tailored to reducing that risk for the future.
  91. Dr Gee's analysis is lengthy and I shall not repeat it here. But it may be of assistance to those considering appropriate programs for you, specifically a sex offender program, and for consideration eventually by the Parole Board
  92. I have also read a report from Dr Danny Sullivan, forensic psychiatrist, who elicited that you had not sought formal assistance in the past for the fatigue and lack of energy that your wife had suggested could be from depression. Some weeks after being in custody, you had been prescribed antidepressant medication which you had been taking. This was prescribed at a time you had suicidal thoughts, and had apparently tried to choke yourself.
  93. Dr Sullivan diagnosed a major depressive episode of mild to moderate severity, and thought it possible you had a recurrent depressive disorder based on your account of past experience. He considered that since taking the medication you had shown some improvement, and described you being in partial remission. He considered that alcohol may have contributed in the past by lowering your mood.
  94. He also considered that you meet criteria for mixed personality disorder with anxious avoidant and schizoid elements. He found you socially withdrawn, preferring solitary activities, and that you had difficulties with intimacy in both sexual and non-sexual relationships. He found little evidence of anti-social or anti-authoritarian attitudes.
  95. Dr Sullivan considered that your history and offences are associated with multiple disorder of sexual preference, including paedophilia, voyeurism and fetishitistic transvestism. He thought your paedophilia was quiescent until recent years, or else arose and was strengthened through the behavioural reinforcement of pornography use. He suspected that like for many others, the viewing of internet child pornography was the gateway to increased preoccupation with deviant sexual interests, and in your case, led to the generation of images to satisfy others or trade, and to contact offending.
  96. Dr Sullivan considered you should continue treatment with antidepressant medication indefinitely, as your isolative and avoidant personality may predispose you to future depressive episodes. He thought you should abstain from alcohol. He also said you should be assessed for the sex offender program, to which you seemed amenable.
  97. It is not suggested that the psychiatric and psychological evidence supports any reduction in the need for general and specific deterrence in your case. Nor is it submitted that it lowered your culpability for your offending. In other words, there is no reliance for principles set out in Verdins case.
  98. I accept that in suffering depressive symptoms, you may endure imprisonment somewhat more heavily than someone without those symptoms. Just as you had suicidal thoughts soon after first being arrested and remanded in custody, I anticipate that after this sentencing process, depressive symptoms may increase while you consider the implications for your future, notwithstanding that you had expected a long term of imprisonment.
  99. I have also taken into account, in some, but limited moderation of your sentence, that you have been in protection while on remand, and owing to the nature of your offending, may well spend much, if not all, of your sentence in protection, which will necessarily be more restrictive for you than conditions in the general prison population.
  100. I accept that you have expressed and shown interest in rehabilitation, although without you having much insight into what caused your offending, the extent of that rehabilitation and its prospects is unclear. You have undertaken some programs while in custody. The Coping Inside programs for managing worry, managing sleep, and managing emotions, have apparently been useful for you. The usefulness to you of other courses including certificates in information and digital media and technology is unclear, given the internet based nature of much of your offending, but I accept that you have undertaken courses to keep occupied and on subjects of interest to you.
  101. While you have reasonable prospects of rehabilitation, in that you have no impairment to your intelligence, have a long work history and express motivation to engage in useful programs, that can only be a minor consideration in this case, as other sentencing purposes significantly outweigh rehabilitation prospects.
  102. Both s.16A(1) of the Commonwealth Crimes Act and s.5(3) of the Victorian Sentencing Act, require what is called “parsimony” in sentencing. That is, a court must not impose a sentence more severe than is necessary to achieve the purpose or purposes for which the sentence is imposed. I have borne that principle in mind, both in relation to individual sentences and in relation to the total sentence.
  103. The principle of totality is an important consideration in your case and was discussed at some length during the plea hearing. Your overall sentence should be a “just measure” of your overall criminality, which satisfies all sentencing objectives applicable to the entirety of that criminal conduct.
  104. Both your counsel and the prosecution submit that I should follow the approach in the case of Grabovac[13] and impose individual sentences on each charge adequate to achieve appropriate sentencing considerations, and not artificially adjust or moderate them for the sake of the overall sentence. Then, considerations of cumulation and concurrency may need adjustment to achieve an appropriate overall sentencing result. This, however, has been described as a precept or guideline and not a rigid inflexible rule. The total sentence should not be crushing.
  105. I have already noted that the prosecution conceded that as between Charges 1 and 2, 3 and 4 and 5 and 6, there should be total concurrency, as they were only separated in those pairs, to account for an increased maximum penalty part way into the overall period of each such offence. It was also conceded that there should be total concurrency between Charges 14 and 15,17 and 18 and 24 and 25, due to separate acts occurring in such close proximity that they should be regarded as part of a course of conduct. I have also explained why Charges 11 and 12 should, in my view, be largely concurrent with only modest cumulation, to reflect that there were two children the subject of largely the same conduct.
  106. I have also explained my view that there is considerable overlap between the conduct the subject of the various charges of using the internet for child pornography activities, and have apportioned more criminality to the charges of making available such material, especially because it included pictures you had produced of your nieces and daughters, whereas much of the other activity was either of comparatively less seriousness or overlapped.


  1. In relation to the contact offending with your daughters, the number of charges reflects separate acts against two children. I note that none of the twenty charges of incest, each with a maximum penalty of 25 years imprisonment was a rolled up charge. Each represented a separate act. In contrast, over the same period, indecent acts have been rolled up into three charges - 34, 35 and 36 - one against each child and the third being in respect of those occasions where recorded in pictures, but where it cannot be determined which of the two children was involved. I have not added cumulation for that latter charge, having separately dealt with some cumulation for the indecent acts against each individual child.
  2. Pursuant to s.6E of the Sentencing Act, as you fall to be sentenced as a serious offender on each of Charges 10 and 14 to 37 inclusive, the sentences are presumed to be cumulative except to the extent ordered otherwise.
  3. Pursuant to s.6D, as a sentence of imprisonment is to be imposed, the paramount sentencing consideration as to its length must be protection of the public. In this case, the prosecution does not suggest that that requires a disproportionate sentence.
  4. This offending in relation to your babies, the contact offences with them, all occurred within an approximate seven month period, and on some days there were more than one act constituting an offence against the same baby, and on some days, acts against both children. I shall be ordering considerable concurrency on these charges, to take into account the course of conduct aspects and to apply the principle of totality. However, as there is a statutory presumption of cumulation applicable to all of these charges, I have left some cumulation to adequately reflect the different children, and the fact of separate repeated sexual acts against them, each of which was a deliberate and often planned act by you. Where it was not possible to identify which of the two children was involved, I have taken into account whether the nature of the act was already reflected in another offence on the same date, or of the same nature with each child.
  5. In applying the principle of totality, I have taken into account that your overall criminality for the offences on which you are being sentenced, including that some conduct lasted over a period of several years, that it involved multiple facets of distribution of child pornography over the internet, involved considerable quantities of such exploitative material, and progressed from viewing and discussing it to producing it yourself and sharing it. Your offending progressed to contact offending, to a limited, although disgraceful extent with your nieces, but ultimately to sustain sexual assaults on your two baby daughters, whom you had brought to Australia for that purpose.
  6. Your offending involved the exploitation of children, ranging from unknown children filmed by others to your own young nieces, and then your even younger baby daughters. This offends against a fundamental value of our civilised society, the protection of children from harm, and our community is particularly appalled by sexual offending against children. I have taken those matters all into consideration in determining not only individual sentences, but totality.
  7. As was conceded on your behalf, only a substantial period of imprisonment would adequately address all sentencing principles in this case. I have borne in mind that its length should not be so crushing, as to deny you all hope of eventual release, nor so as to quash your motivation to address the causes of your offending, and undertake programs to reduce the risk of your repeating any such offending.
  8. I am about to turn now to the actual terms of your sentences. To assist counsel, so as not to have to take down the specifics, I have some draft documents, but they are draft only and I am even now realising some parts are incomplete, but I will hand to - I am sorry, the - sorry for this delay. The technical side and the many hours that have been spent by my Associate and I trying to construct this has meant that the last version - it certainly contains the specific sentences, but the structuring of how to arrange the totality is obviously ultimately going to need to be discussed.
  9. Mr McIntosh, I ask you now to stand.
  10. On each of the charges, you are convicted and sentenced as follows.
  11. First, on the Commonwealth charges:

On Charge 11, I impose a sentence of eight years imprisonment commencing today, 19 May 2016.

On Charge 12, I impose eight years imprisonment, commencing on 19 May 2017.

On Charge 13, I impose five years imprisonment, commencing 19 November 2021.

On Charge 8, I impose five years imprisonment commencing 19 August 2023.

On Charge 9, I impose three years imprisonment, commencing 19 November 2025[14].

On Charge 1, four years imprisonment commencing 19 May 2025.

On Charge 2, four years imprisonment, commencing 19 May 2025.

On Charge 3, 21 months' imprisonment, commencing 19 October 2027.

On Charge 4, 21 months' imprisonment commencing 19 October 2027.

On Charge 5, 18 months' imprisonment, commencing 19 April 2028.

On Charge 6, 18 months' imprisonment, commencing 19 April 2028.

On Charge 7, 15 months' imprisonment, commencing

19 September 2028.

  1. That produces a total Commonwealth sentence of 13 years and seven months imprisonment and as I am obliged to do, I set a Commonwealth non-parole period, which I fix at nine years imprisonment.
  2. On the state charges:

On Charge 10, I impose 15 months' imprisonment.

On Charge 14, five and a half years imprisonment.

On Charges 15, 16, 17,. 18, 19, 20 and 22 to 33 inclusive, I impose five and a half months imprisonment.

On Charge 21, which I make the base sentence for the Victorian charges, I impose five years and eight months imprisonment and that is to commence eight years after the commencement of the sentence on Charge 11. That means it will commence on 19 May 2024.

On Charges 34, 35, and 36, I impose three years imprisonment on each.

On Charge 37, 21 months' imprisonment.

  1. I have starting dates for each of those which are on a separate document that will be handed to counsel shortly. If those are appropriate, that should be sufficient to amount to a direction otherwise than the presumed cumulation under 6E.
  2. However, to avoid any misunderstanding, I direct that except for six months on each of Charges 15, 16, 18, 19, 22, 24, 28, 29, 30, 33, 34, and 35; four months on each of Charges 23 and 27; and three months on each of Charges 10, 20, 26, 31, 32 and 37, all state sentences on this Indictment are to be served concurrently with the sentence on Charge 21 and with each other.
  3. That creates a total effective sentence of state charges on the indictment of 13 years and 10 months imprisonment. I fix a non-parole period on state charges of seven and a half years, to commence at the commencement of the sentence on Charge 21. That is, on 19 May 2024.
  4. On the summary charge, I impose five months imprisonment. I direct that two months of this sentence be served cumulatively on the total effective sentence on state charges on the indictment. I have calculated a starting date for it as 19 December 2037.
  5. The total overall sentence that I have intended to create by these orders is, as I said at the outset, 22 years imprisonment, with a non-parole period of fifteen and half years.
  6. I declare as reckoned served, pre-sentence detention to date in respect of these charges, being 527 days, not including today. That is to be recorded in court records and will be deducted administratively.
  7. I declare pursuant to s.6F of the Sentencing Act, that on Charges 10 and 14 to 37 inclusive, you are sentenced as a serious sex offender and direct that that be recorded.
  8. I state for the purposes of s.6AAA of the Victorian Sentencing Act, but also as invited to state for the Commonwealth charges too, that if you had not pleaded guilty and been found guilty after a trial on each of these charges, and including the summary charge, the total overall sentence would have been 30 years imprisonment, with a non-parole period of 24 years.
  9. By operation of law, you will be placed on the Sex Offender Register with a reporting period for life. My associate will shortly bring you forms once they have been checked by counsel. These give you notice of your obligations about reporting while on that Register, but it will not come into effect until you are released from custody, and no doubt you will be reminded of them closer to that time when that is established.
  10. You are asked, when my Associate brings them to you to sign acknowledgement of receipt of those forms.
  11. You can take a seat in the interim Mr McIntosh. Now the notice that I have signed should be - and the notice that Mr McIntosh will be asked to sign should be checked by counsel first and
  12. MR WILLIAMS: Yes, Your Honour.
  13. HER HONOUR: And then we will have the - all right. What I am going to do once that's done, is stand the court down for perhaps 20 minutes or so to let both sides’ counsel consider the structure and the - how it's been expressed to technically achieve what I hope I've clearly explained I want to achieve in the sentence.
  14. My Associate and I worked for some hours, on actually creating not only the starting dates for the Federal offences which I've read out, but a chart with the starting date for the state offences. But I'm open to hearing from counsel whether those should all be stated or not. I gather it is becoming the practice, of how best to deal with that combination of state charges following Commonwealth ones. But I have made the direction in effect as to mainly concurrency, but some cumulation for the sake of the state legislation.
  15. Anyway, if those notices can first be checked and Mr McIntosh can be asked to sign an acknowledgement he's received them. We'll deal with the technical side after that.
  16. Mr McIntosh, they've been checked. My Associate will hand you a notice and I ask you to sign it to acknowledge you've received the more weighty notice that sets out the obligations under the Sex Offender Registration Act.
  17. All right, now Ms Breckweg and Mr Williams, does it suit that I do stand the matter down to let you each work through those figures?
  18. MR WILLIAMS: Yes, Your Honour.
  19. HER HONOUR: My Associate should have a chart - it may be that I have to check that first. I'm not minimising this, the hours that my Associate and I have spent trying to work out how best to express this, and then working out dates. There have been many hours spent and I just need to check the resultant chart
  20. MS BRECKWEG: Yes, Your Honour.
  21. HER HONOUR: before I do distribute it to you. The pages I've distributed to you of course are a draft, but to give you the - I didn't change any of the figures.
  22. MS BRECKWEG: Yes of course, Your Honour.
  23. HER HONOUR: All right, what I'll do - how long do you think is appropriate for that?
  24. MR WILLIAMS: Twenty minutes should be enough I think, Your Honour.
  25. HER HONOUR: All right. What I'll - do you want to talk to your - access to your client in the meantime. I'm just - do you want him to be - me to ask for him to remain in the courtroom for a few minutes or to be brought back sooner than we resume?
  26. MR WILLIAMS: I think that the latter course would be better, Your Honour.
  27. HER HONOUR: All right. Well perhaps - what I'll do is stand the court down for 20 minutes for counsel to have a chance to check these figures. Not only the arithmetic, but the structure is particularly complicated and what I'll do is ask that during that time, Mr McIntosh will be removed from the court, but could he be brought back in 15 minutes time, and before I resume sitting, so his counsel have the opportunity to approach and be able to explain matters to him.
  28. Mr McIntosh, as I said, the total sentence I intend is between - all of the charges, 22 years imprisonment, with a non-parole period of fifteen and a half years of which you have done roughly one and a half - not yet exactly, but close to one and a half years already which is counted from both the head sentence and the non-parole period. Would you remove Mr McIntosh in the meantime, please, to be brought back in about 15 minutes time. Yes, I will stand the court down until quarter past twelve.


[1] The name of the Accused has been allocated a pseudonym to protect the identity of the victims pursuant to section 4 of the Judicial Proceedings Reports Act 1958 (Vic) and in compliance with suppression order made by Her Honour Judge Cohen on 21 April 2016.


[2] A pseudonym

[3] Australian National Victim Image Library

[4] [2016] VSCA 74

[5] For example, the majority in DPP v Zarb [2014] VSCA 347 (Priest JA dissenting); R v Porte [2015] NSWCCA 174; R v De Leeuw [2015] NSWCCA 183

[6] [2016] VSCA 73

[7] [2016] VSCA 73

[8] [2015] NSWCCA 174

[9] Adamson v R [2015] VSCA 194

[10] [2013] QCA 310

[11] Reid (a pseudonym) v R [2014] VSCA 145

[12] [2012] VSCA 140

[13] [1998] 1 VR 664

[14] Corrected from 2024 after Counsel pointed to an error in arithmetic.

For the Director of Public Prosecutions
Ms K. Breckweg
For the Accused
Mr J. D. Williams with Mr M. Phillips

Legislation Cited: Crimes Act 1914 (Cth) ss 16A(1) & (2); Sentencing Act 1991 (Vic) ss 5, 6D –F; 6AAA; 16(4)

Cases Cited: DPP (Cth) & DPP v Garside [2016] VSCA 74; DPP (Cth) & DPP v Watson [2016] VSCA 73; R v De Leeuw [2015] NSWCCA 183; Adamson v R {2015] VSCA 194; R v KAK [2013] QCA 310 ; Phillips v R [2012] VSCA 140; R v Verdins, R v Buckley; R v Vo [2007] VSCA 102; DPP v Grabovac [1998] 1 VR 664

Source : http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCC/2016/622.html

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