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District Court 8 October 2021

R v Coker

[2021] NSWDC 805

Sexual offencesDrugs
CRIME POSSESS/CONTROL CHILD ABUSE MATERIAL USE CARRIAGE SERVICE RELEVANT FACTORS ON SENTENCE DRUG USE PRIOR GOOD CHARACTER

Citation: R v Coker [2021] NSWDC 805
Court: District Court of New South Wales
Date: 8 October 2021
Judge: Haesler SC DCJ

Background

The offender, a man in his early fifties with no prior criminal history, was charged with four federal offences under the Criminal Code Act 1995 (Cth) relating to child abuse material. He was arrested in October 2020 following a search of his home in southern Wollongong by the Australian Federal Police Child Protection Operations Team, which seized two mobile devices containing child abuse material.

The material found on those devices depicted young children, including infants and toddlers, being subjected to serious sexual abuse. The offender had also transmitted child abuse material to others via messaging applications including Telegram and WhatsApp. He cooperated with police from the outset, providing passwords to his devices and making full admissions.

The offender attributed his conduct to a relatively short but intense period of methamphetamine use that had begun in 2020. He gave evidence that he experienced sexual arousal from this material only while under the influence of the drug, and that his drug use had become all-consuming during that period. He had no history of interest in such material prior to that time.

  • What was the objective seriousness of the offences, having regard to the nature and volume of the material possessed and transmitted?
  • What weight should be given to general deterrence in sentencing for child abuse material offences?
  • How should the offender's significant mitigating factors, including prior good character, drug-induced conduct, remorse, and demonstrated rehabilitation, affect the sentence?
  • Whether some period of full-time custody was required, given that an Intensive Corrections Order was not available as a sentencing option for these offence types.
  • How should the individual sentences be structured and accumulated into an aggregate term?

Decision

Haesler SC DCJ found that while the number of files was not large compared to many cases of this kind, the content was of high seriousness. The material depicted real children, some very young, in depraved circumstances. The transmission of material to others was considered at least as serious as, if not worse than, mere possession, because it perpetuated harm against those children.

His Honour accepted that general deterrence must be given significant weight in this area of offending, consistent with the approach in Hutchinson v R, R v Porte, and D'Alessandro v R. Parliament had fixed maximum penalties of 15 years for each offence and directed that custodial sentences be imposed absent exceptional circumstances. The Court found that no alternative to a custodial sentence was open, and that some period of full-time custody was required.

The mitigating factors were nonetheless substantial. The offender had never previously offended. His conduct was directly linked to methamphetamine use, which he had ceased following his arrest. He had sought and engaged with professional treatment, demonstrated genuine insight into his offending, and presented as unlikely to reoffend provided he maintained that treatment. He had entered a guilty plea in the Local Court, attracting a 25 per cent reduction for utilitarian value.

The Court structured the sentence to impose an aggregate term with a non-parole period of nine months, followed by release on a recognisance (a form of bond) with supervision, psychological treatment, and good behaviour conditions. His Honour was careful to preserve the full benefit of the guilty plea discount when accumulating the individual sentences.

Orders Made

  • The offender was convicted of each of the four offences.
  • Individual sentences imposed (each reduced by 25% for guilty plea):
  • Possess/control child abuse material using a carriage service: 1 year 6 months
  • Use carriage service to transmit/publish/promote child abuse material (first offence): 1 year 1 month
  • Use carriage service to transmit/publish/promote child abuse material (second offence): 1 year 6 months
  • Use carriage service to access child abuse material: 9 months
  • Aggregate term of imprisonment: 2 years and 3 months, commencing 7 October 2021 and expiring 6 January 2024.
  • Direction for release after 9 months (6 July 2022) upon entering a recognisance of $400 under s 20(1) Crimes Act 1914 (Cth), with conditions including:
  • Good behaviour for 2 years
  • Supervision and guidance by a Community Services NSW officer as directed
  • Engagement in psychological treatment as directed
  • Reporting to Community Services NSW within 7 days of release
  • Forfeiture of both seized devices to the Commonwealth under s 23ZD Crimes Act 1914 (Cth).

Key Takeaways

  • The District Court confirmed that some period of full-time custody is required for offences involving the possession and transmission of child abuse material, regardless of significant mitigating factors, because an Intensive Corrections Order is not available for these offence types.
  • General deterrence carries particular weight in sentencing for child abuse material offences, reflecting the international prevalence of such material and Parliament's stated intention that imprisonment be imposed absent exceptional circumstances.
  • Drug-induced offending can be a relevant mitigating circumstance, but the District Court found it did not displace the need for custodial punishment where the offending involved serious exploitation of real children.
  • Prior good character, genuine remorse, demonstrated rehabilitation, abstinence from drugs, and engagement with treatment all operated to reduce the period of full-time custody required, and influenced the conditions attached to the recognisance upon release.
  • A 25 per cent reduction in individual sentences for the utilitarian value of an early guilty plea was applied, with the Court noting care must be taken not to erode that benefit when accumulating individual sentences into an aggregate term.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 474.22A, 474.221, 473.1
- Crimes Act 1914 (Cth), ss 20(1), 23ZD
- Telecommunications Act 1997 (Cth)

Cases:
- D'Alessandro v R [2010] VSCA 60; 26 VR 477
- Hutchinson v R [2018] NSWCCA 152
- R v Chaplin [2012] NSWDC 301
- R v Henry (1999) 46 NSWLR 346; 106 A Crim R 149
- R v Kelly [1999] UKHL 4; [2000] 1 QB 198
- R v Porte [2015] NSWCCA 174
- Tootell v R [2012] QCA 273