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District Court 28 March 2025

R v Cook

[2025] NSWDC 201

Sexual offencesPublic order & justice offences

Citation: R v Cook [2025] NSWDC 201
Court: District Court of New South Wales
Date: 28 March 2025
Judge(s): Haesler SC DCJ

Background

The offender had been convicted after a 2017 trial of multiple sexual assaults on two children and sentenced to eight years imprisonment with a four-and-a-half-year non-parole period. He was released to parole in October 2021 and, as a consequence of his convictions, was registered as a sex offender subject to the reporting obligations of the Child Protection (Offenders Registration) Act 2000 (NSW).

Following his release, the offender returned to his local area, began drinking heavily, and eventually used the internet to relieve boredom. He created multiple online accounts on platforms including Skype and Planet Romeo without disclosing those accounts as required by his registration obligations. Between late 2023 and early 2024, he engaged in online communications with a user he believed to be under 16 years of age, transmitted child abuse material, and possessed child abuse material stored on data devices.

His arrest in April 2024 triggered both the current proceedings and the revocation of his parole on the earlier sentence. He pleaded guilty in the Local Court to a number of offences, four of which came before the District Court for sentencing and two of which were placed on a schedule to be taken into account.

  • What is the appropriate sentence for offences of transmitting and possessing child abuse material using a carriage service under the Criminal Code Act 1995 (Cth), given the applicable maximum penalty of 15 years and mandatory minimum of 4 years imprisonment?
  • What is the appropriate sentence for breaching reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW)?
  • How should the mandatory minimum sentencing provisions under s 16AA of the Crimes Act 1914 (Cth) be applied in light of mitigating factors, including a guilty plea and co-operation with police?
  • How should the court approach the interaction between State and Commonwealth sentencing regimes when sentencing for offences under both?
  • What weight should be given to the offender's guilty plea, co-operation with police, personal history of childhood trauma, and mental health in fixing the sentence?

Decision

Haesler SC DCJ confirmed that custodial sentences were required for all offences. His Honour emphasised that the maximum penalty of 15 years and the mandatory minimum of 4 years for the Commonwealth child abuse material offences reflect Parliament's clear statement about the seriousness of such conduct, and that judges are obliged to apply the mandatory minimum subject only to the exceptions in s 16AA(c) of the Crimes Act 1914 (Cth).

A 25% reduction was applied across all matters to reflect the utilitarian value of the guilty plea. Under the Crimes (Sentencing Procedure) Act 1999 (NSW), this reduction was mandatory for the State offence. For the Commonwealth offences, the plea was treated as evidence of some contrition and facilitation of the course of justice. An additional 2% reduction was applied to account for the offender's co-operation with police in providing usernames and passwords upon arrest, with the court noting this co-operation was also relevant to the mandatory minimum analysis under s 16AA(4) of the Crimes Act 1914 (Cth).

His Honour applied the instinctive synthesis approach endorsed in Markarian v The Queen (2005) 228 CLR 357, arriving at a starting point of 4 years for each Commonwealth matter before applying the combined 27% reduction. An aggregate sentence was imposed for the Commonwealth matters in accordance with R v McGregor [2024] NSWCCA 200. The court gave separate consideration to the State and Commonwealth sentencing regimes, acknowledging that while the fundamental principles overlap, important distinctions apply.

Mitigating factors considered included the offender's personal history of childhood sexual abuse and trauma, mental health conditions, and his reduced role as a carer. These were weighed against significant aggravating factors, including the commission of the offences while on parole and his record of prior child sex offending.

Orders Made

  • Conviction recorded for all matters.
  • State offence (breach of reporting obligations, Sequence 9): 9 months imprisonment, commencing 16 May 2024.
  • Commonwealth offences (Sequences 6, 7, and 8): aggregate sentence of 3 years and 8 months imprisonment, with a non-parole period of 2 years, commencing 16 August 2024.
  • Individual indicative sentence for each Commonwealth matter: 2 years and 11 months (starting point of 4 years reduced by 27%).
  • Release to parole on 15 August 2026, subject to s 19AL of the Crimes Act 1914 (Cth).
  • Parole period of 1 year and 8 months; sentence to end 15 April 2028.
  • Total effective sentence: 4 years and 2 months, with an effective non-parole period of 2 years and 6 months (60%).
  • Forfeiture order for the USB stick and computers.

Key Takeaways

  • The mandatory minimum of 4 years imprisonment for Commonwealth child abuse material offences under the Criminal Code Act 1995 (Cth) operates as a genuine fetter on judicial discretion, and courts are obliged to apply it subject only to the statutory exceptions in s 16AA(c) of the Crimes Act 1914 (Cth), as confirmed by the High Court in Hurt v The King; Delzotto v The King [2024] HCA 8.
  • A guilty plea and co-operation with police, including providing account credentials upon arrest, can each contribute to a reduction below an otherwise appropriate starting point, and co-operation is also specifically relevant to the mandatory minimum analysis under s 16AA(4) of the Crimes Act 1914 (Cth).
  • Where an offender is sentenced for both State and Commonwealth offences arising from related conduct, separate sentencing regimes apply and must each be considered, though many underlying principles are shared.
  • Committing child abuse material offences while on parole for prior child sex offences constitutes a serious aggravating factor that bears heavily on the sentencing outcome.
  • Under Bugmy v The Queen (2013) 249 CLR 571, a history of childhood sexual abuse and trauma remains a relevant mitigating consideration, but it does not displace the need for adequate punishment, deterrence, and community protection, particularly where prior convictions demonstrate a continuing pattern of offending against children.

Legislation and Cases Referenced

Legislation
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Crimes Act 1914 (Cth), including ss 3LA, 16A, 16AA, 17A, 19AL
- Criminal Code Act 1995 (Cth), ss 474.22(1), 474.22A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 17A, 25D

Cases
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Bisiker v R [2022] NSWCCA 110
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Cobiac v Liddy (1969) 119 CLR 257
- Hurt v The King; Delzotto v The King [2024] HCA 8
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- R v Dennison [2011] NSWCCA 114
- R v McGregor [2024] NSWCCA 200