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District Court 17 September 2024

R (Cth) v Cole

[2024] NSWDC 436

Sexual offences
CRIME SENTENCE COMMONWEALTH CRIME TEXT BASED CHILD ABUSE MATERIAL PRODUCE CHILD ABUSE MATERIAL TEXTING TEXT BASED CHILD ABUSE MATERIAL

Citation: R (Cth) v Cole [2024] NSWDC 436
Court: District Court of New South Wales
Date: 17 September 2024
Judge(s): Bennett SC ADCJ

Background

The offender, a woman in her mid-to-late forties, pleaded guilty to three Commonwealth offences arising from events on 17 and 18 December 2021 in Tocumwal, New South Wales. She had been in a sexual relationship with her supervisor, a chef at the hotel where she worked as a kitchen hand. Over the course of those two days, her co-offender sent her a series of graphic text messages expressing sexual fantasies involving the offender's sixteen-year-old daughter, who was visiting from Melbourne during school holidays.

The offender participated in that text exchange, indicating arousal and agreement. She then covertly photographed her daughter through a bathroom window while the daughter showered, transmitting five naked photographs of the child to her co-offender. The text-based material exchanged between the offender and her co-offender was classified as Category 2 child abuse material under the Interpol categorisation system.

The daughter discovered the conduct by accessing her mother's phone on two occasions. She described what she witnessed in a contemporaneous text message to a friend, and later found further exchanges in which the co-offender threatened consequences if the offender did not comply with his demands. The offender pleaded guilty in the Local Court on 12 March 2023.

  • What sentences were appropriate for three Commonwealth offences of using a carriage service to transmit child abuse material, causing child abuse material to be transmitted, and producing child abuse material?
  • What discount applied to reflect the early guilty pleas?
  • What weight should be given to the offender's mental health, her role as a coerced participant, and her personal circumstances in determining the appropriate sentence?
  • Whether exceptional circumstances existed to justify immediate release under a recognizance release order rather than full-time custody.

Decision

Bennett SC ADCJ imposed individual sentences for each of the three offences, with partial cumulation to reflect the totality of the offending. A 25% discount was applied to each sentence to reflect the guilty pleas entered in the Local Court.

The court accepted that the offender had been coerced by her co-offender and that her mental health had materially impaired her judgment, misleading her into conduct that gravely harmed her daughter. Her perception of the relationship, and the benefit it offered her, was described as perverse but explicable in the context of her impaired mental state. These findings did not diminish the seriousness of the offending but informed the sentencing discretion.

The court found that exceptional circumstances existed that justified a departure from the usual expectation of full-time imprisonment. Accordingly, each sentence was to be served by immediate release under a recognizance release order. The additional offence of possessing and accessing child abuse material via a carriage service was taken into account pursuant to section 16BA of the Crimes Act 1914 (Cth) in relation to the second charge.

Orders Made

  • The offender was convicted of each offence to which she pleaded guilty.
  • Charge One: sentence of imprisonment of 2 years, commencing 17 September 2024.
  • Charge Two: sentence of imprisonment of 2 years and 2 months, commencing 17 November 2024 (the additional offence under s 16BA was taken into account for this charge).
  • Charge Three: sentence of imprisonment of 2 years, commencing 17 October 2024.
  • Pursuant to section 20(1)(a) and (b) of the Crimes Act 1914 (Cth), the offender was ordered to be released immediately upon giving a personal recognizance of $1,000, subject to:
  • Good behaviour for a period of three years.
  • Supervision by a probation officer for two years.
  • Compliance with all reasonable directions of the probation officer.
  • No interstate or overseas travel without written permission of the probation officer.
  • Participation in treatment or rehabilitation programs directed by the probation officer for mental health and alcohol misuse.
  • The offender was required to contact Albury Community Corrections within seven days to arrange supervision.

Key Takeaways

  • The District Court treated coercion by a co-offender, combined with established mental health impairment, as factors capable of supporting a finding of exceptional circumstances justifying a recognizance release order in lieu of full-time custody, even for serious Commonwealth child abuse material offences carrying maximum penalties of 15 years imprisonment.
  • A 25% guilty plea discount applied where pleas were entered in the Local Court, consistent with the approach taken in comparable Commonwealth sentencing matters.
  • Text-based sexual material involving a child, exchanged between adults as part of a fantasy narrative, constitutes child abuse material capable of attracting criminal liability under the Criminal Code Act 1995 (Cth), and was classified as Category 2 material under the Interpol system.
  • Where an offender is sentenced for multiple discrete offences, partial cumulation of individual sentences remains an available tool to reflect the totality of the criminality without producing a disproportionate aggregate term.
  • The court's assessment of the offender's moral culpability acknowledged that being manipulated into offending by a person in a position of workplace authority, combined with compromised mental health, can reduce but does not eliminate that culpability for serious offending against a child.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 474.22(1), 474.22A(1), 474.23(1)
- Crimes Act 1914 (Cth), ss 16BA, 20(1)(a) and (b)
- Crimes (Sentencing Procedures) Act 1999 (NSW)
- Judiciary Act 1903 (Cth)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- DPP (Cth) v Beattie [2017] NSWCCA 301
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Edmund Heathcote (A Pseudonym) v R [2014] VSCA 37
- Hoskins v R [2021] NSWCCA 169
- Imbornone v R [2017] NSWCCA 144
- McGregor v R (2021/283147)
- Minehan v R (2010) 201 A Crim R 243
- Moiler v R [2021] NSWCCA 73
- R v Bredal [2024] NSWCCA 75
- R v De Leeuw [2015] NSWCCA 183
- R v Kelly (Edward) [1999] 2 All ER 13
- R v Tootell ex parte AG [2012] QCA 273
- The Queen v Pham (2015) 256 CLR 550
- Wong v The Queen (2001) 207 CLR 584
- Xiao v R (2018) 96 NSWLR 1