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District Court 6 December 2024

R v Coomber

[2024] NSWDC 579

Sexual offences

Citation: R v Coomber [2024] NSWDC 579
Court: District Court of New South Wales
Date: 6 December 2024
Judge: Newlinds SC DCJ

Background

The offender pleaded guilty to possessing child abuse material using a carriage service (a Commonwealth offence under the Criminal Code) and a related NSW offence of possessing child abuse material. The material, stored on his mobile phone, comprised hundreds of images and videos depicting real children aged between 2 and 16 engaged in sexual acts with adults or other minors. The offending spanned from June 2020 to January 2023.

A further offence of intentionally importing tier 2 goods without approval under the Customs Act 1901 (Cth) was admitted and taken into account under s 16BA of the Crimes Act 1914 (Cth). This arose because the offender physically carried his phone, containing the material, when he returned to Australia by plane on 30 January 2023. A search of his device the following day revealed an even larger quantity of material, which formed the basis of the NSW offence.

The sentencing exercise required the court to apply both Commonwealth and NSW sentencing frameworks, which differ in their structure and in the threshold questions governing the imposition of imprisonment.

  • What was the appropriate level of objective seriousness for the Commonwealth possession offence and the related NSW offence, having regard to the established factors for assessing child abuse material offending?
  • What weight should be given to the s 16BA Customs Act importing offence, and to what extent should it increase the sentence for the Commonwealth offence?
  • Whether "exceptional circumstances" existed under s 20(1)(b) of the Crimes Act 1914 (Cth) to justify a Recognizance Release Order rather than actual imprisonment.
  • What conditions were appropriate on any release order, including treatment, supervision, and internet access.

Decision

Objective seriousness. The court rejected the offender's submission that the offending fell at the lower end of the range for this type of offending. His Honour found the content of the material was serious, noting that some images depicted a child with blood around the genitals, a restrained child, and a child performing oral sex on an animal. The court emphasised the well-established principle that it is the content of the material, not the quantity of files, that primarily determines objective seriousness. The sequence 3 (Commonwealth) offending was placed somewhere below the midpoint of the mid-range; the sequence 1 (NSW) offending was assessed as less serious than sequence 3.

The s 16BA importing matter. The court accepted the offender's submission that the additional criminality of importing, as distinct from possessing, the same material on the same device was limited. The s 16BA matter therefore warranted only minimal upward pressure on the sequence 3 sentence, rather than any substantial increase.

Guilty plea. The offender received a 25% discount for the utilitarian value of his early guilty plea in respect of the Commonwealth offence. The court also took the timing and fact of the plea into account for the NSW offence under the relevant provisions of the Crimes (Sentence Procedure) Act 1999 (NSW).

Exceptional circumstances and release. The court was satisfied that exceptional circumstances existed, warranting a Recognizance Release Order under s 20(1)(b) of the Crimes Act 1914 (Cth) rather than actual custody. The reasons for this finding are not fully extracted in the available text, but the orders reflect a structured regime of supervision, treatment, and behavioural conditions. The sentence imposed for the Commonwealth offence was three years' imprisonment, with the offender released immediately on the Recognizance Release Order for a corresponding three-year period.

Orders Made

  • The offender was convicted on all matters.
  • Sequence 3 (Commonwealth offence): Sentenced to 3 years' imprisonment commencing 20 November 2024, expiring 19 November 2027. The court found exceptional circumstances and ordered immediate release on a Recognizance Release Order for 3 years from 6 December 2024, with the offender giving security of $5,000 and subject to the following conditions:
  • Be of good behaviour.
  • Report to Penrith Community Corrections within 7 days and thereafter be subject to probation officer supervision.
  • Obey all reasonable directions of the probation officer.
  • Not travel overseas or interstate without written permission of the probation officer.
  • Continue to engage with his treating practitioner (Mr Sheehan) weekly, or as otherwise directed, and accept treatment directions.
  • Continue to take prescribed medication and not use illicit drugs.
  • Not access the internet to view pornography of any type for 1 year, and thereafter as directed by Mr Sheehan.
  • Sequence 1 (NSW offence): Community Correction Order for 3 years from 6 December 2024, on the same conditions listed above.
  • Forfeiture: One OnePlus 7 Pro Android mobile phone forfeited to the Commonwealth. A red USB and Google hard drive also forfeited to the Commonwealth as tainted property.

Key Takeaways

  • In assessing objective seriousness for child abuse material offences, the content of the material carries greater weight than the number of files. The District Court expressly rejected an approach that minimised seriousness by reference to relatively small file numbers where the content depicted significant cruelty and depravity.
  • A s 16BA Customs Act matter (importing child abuse material) may warrant only minimal additional sentencing weight where the imported material is identical to the material forming the principal possession charge and was carried on the same personal device.
  • Under s 17A of the Crimes Act 1914 (Cth), a court may only sentence a Commonwealth offender to imprisonment if satisfied no other sentence is appropriate. Where exceptional circumstances are found, s 20(1)(b) permits the court to order release on a Recognizance Release Order even after imposing a term of imprisonment.
  • The framework of conditions attached to the Recognizance Release Order in this case included tailored restrictions on internet pornography access and ongoing engagement with a specific treatment provider, illustrating how such orders can be structured for this category of offending.
  • Intrinsic harm to the children depicted in child abuse material is treated as an inescapable sentencing consideration, regardless of whether specific victims are identified before the court, following R v Clarkson [2011] VSCA 157.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth) s 474.22A(1)
- Crimes Act 1914 (Cth) ss 3, 16A, 16BA, 17A, 20(1)(b)
- Customs Act 1901 (Cth) s 233BAB(5)
- Crimes Act 1900 (NSW) s 91H(2)
- Crimes (Sentence Procedure) Act 1999 (NSW) ss 3A, 5, 21A, 25D
- Child Protection (Offender Registration) Act 2000 (NSW) s 9

Cases
- R v Hutchison [2018] NSWCCA 152
- R v Clarkson [2011] VSCA 157
- R v Bredal [2024] NSWCCA 75
- R v Porte [2015] NSWCCA 174
- Crowder (a pseudonym) v The King [2024] VSCA 211