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
Source
Original judgment source is linked above.
Catchwords
26 VR 477
Hutchinson v R [2018] NSWCCA 152
R v Chaplin [2012] NSWDC 301
R v Henry (1999) 46 NSWLR 346106 A Crim R 149
R v Kelly [1999] UKHL 4
Judgment (13 paragraphs)
[1]
Preliminary
Mr Coker appeared at Wollongong District Court on 6 October 2021. He appeared by Audio Visual Link because of COVID requirements. He adhered to a guilty plea entered in the Local Court. At the conclusion of the hearing, I gave these reasons ex tempore. The matter was adjourned to 8 October 2021 so that Mr Coker could appear in person with his Solicitor so that formal orders could be made and entered on the record. His attendance was required as a custodial sentence was to be imposed.
[2]
Introduction
Bevan Coker was born in 1969. He is currently 51 years old. He has never before been in trouble with the law. He has been able to work and live with his partner in the local area and in New Zealand and be a productive member of the community.
In 2020, or perhaps earlier, he took up the casual use of the drug methylamphetamine (ice), and over a relatively short period the use of that drug became a preoccupation. Under the influence of and associated with the use of that drug he accessed and ultimately possessed and then transmitted child abuse material. There is nothing in the material before me, and that includes Coker's evidence which was frank and believable, to indicate that in the previous adult life he had ever had an interest in such material.
On 14 October 2020 members of the Australian Federal Police Child Protection Operations Team went to his address in southern Wollongong with a search warrant. There they seized two devices, an iPhone and what is called an Optus X Spirit. Coker gave them the passwords for those devices. When the devices were examined, police found files containing child abuse material. They included videos of children, males and females, predominantly ranging in age from newborns to ten years old. The child abuse material showed vaginal, anal and oral rape of children by male adult offenders. In some of the material the children were tied up or blindfolded.
Short summaries of that material have been put before the Court in the agreed facts. Thankfully, and consistent with what I understand to be good practice, the prosecution has not perpetuated the harm that has been caused to the children involved in the production of this material by further publishing that material by tendering the images to me.
The iPhone images are summarised in paragraphs 7 through to 11. The Optus Spirit contained 13 videos and six images. Again, a summary was provided. It contained images and videos of victim children males and females predominantly ranging from newborns to six years old. It showed vaginal, anal and oral rape of children by male adult offenders. That is the offence, possess or control child abuse material obtained or accessed using a carriage service, s 474.22A Criminal Code Act 1995 (Cth). Parliament has fixed a maximum penalty of 15 years.
A "carriage service" means a service for carrying communications by means of guided and/or unguided electromagnetic energy: s473.1 Criminal Code (Cth) picking up the definition in the Telecommunications Act 1997 (Cth).
It is accepted that the summaries are sufficient for these purposes: R v Chaplin [2012] NSWDC 301; Hutchinson v R [2018] NSWCCA 152. I have read them and like the offender himself, to use his own words, I am sickened and disgusted by what I have read. But a judge must put such feelings aside and make an objective and balanced assessment in considering the objective seriousness of matters such as this
Two offences of using a carriage service to transmit child abuse material are also before the Court. Section 4474.221 Criminal Code Act 1995 (Cth); maximum penalty 15 years.
In short summary: sequence 2, an analysis of the Apple iPhone identified conversations with others using the application Telegram. They involved discussion about the transmission of child abuse material. Sufficient details of the depravity of what was discussed and sent are set out in the agreed facts. Sequence 4 involves similar but more extensive discussions with four nominated names. They took place using the application WhatsApp. There is also an email which contained a video attachment; which is summarised. Sequence 10, the least serious of the offence. The offender used the application Telegram to two video files with a comment, "Got really young vids".
Croker was arrested, spent the night in cells and has been on bail ever since. On arrest he told police he would never perpetuate the actual act of abusing a child, but he had watched others perpetrate it on the material. He said that he took methylamphetamine and it made him feel like watching the material. He accessed the child material through people sending him a video on a website and he had emailed something on his phone so he could send it on to someone else.
He made full admissions, including that he got sexually aroused by the material, but only when he was under the influence of methylamphetamine. He accepted he knew what he did was wrong and accepted that children are being hurt in those videos.
[3]
The offences
Compared to many of the cases often dealt with by the Court there were not a large number of individual files containing child abuse material. But while they may be low in number their content was high in seriousness. Real children, some very young, infants and toddlers were depicted in depraved circumstances. It bears repeating - they were real children. The offending was not sophisticated, but neither was it opportunistic. It was for a prurient purpose.
The material shared or transmitted or accessed was of a similar nature. As Mr Kisch, who appears for the Commonwealth Director of Public Prosecutions notes, and I accept; the transmission and sharing of these images to others perpetuated a crime against children and was, particularly so far as sequence 4 and its extent, just as bad if not worse than possessing and controlling material for your own prurient interests.
Cases such as Hutchinson v R [2018], R v Porte [2015] NSWCCA 174 and D'Alessandro v R [2010] VSCA 60; 26 VR 477, highlight the international problem of child pornography, and the need, because of the prevalence and readily availability of such material for sentencing judges to put particular emphasis on general deterrence in the hope that those inclined to provide a market for such material might think again before possessing, accessing or transmitting it.
As the evidence before me, which I accept makes absolutely clear, many people such as Mr Coker who was otherwise a law-abiding citizen pays little attention to maximum penalties announced by Parliament and statements pronounced in Parliament that gaol sentences should be imposed, absent exceptional circumstances. They disregard the general community distaste at such matters and ignore the general feeling in the community that there should be just retribution for anyone who commits such offences; which involves the exploitation of real children. The theory of general deterrence is recognised by the courts. It is by direction of Parliament a principle that must be considered. There is a wealth of authority that compels judges at first instance to give appropriate weight to that purpose of sentencing when formulating an adequate punishment and penalty.
The offences individually and collectively called for a custodial sentence, notwithstanding that there may be, particularly in the offender's case, significant matters in mitigation. No other penalty could be imposed. The issue for me as carefully identified in the written submissions of Mr Kisch and Mr Kwan who appears for the offender is whether a period of that sentence must be spent in custody or whether the sentence can be moderated by allowing immediate release to the community on conditions.
Given the nature of the offence the Intensive Corrections Order option is not available to the Court.
[4]
Subjective case
Mr Coker gave evidence and was tested. I found him to be genuine with insight into his underlying depression and his drug use. He also demonstrated considerable insight into his offending behaviour. He told me he now appreciates the impact of methylamphetamine on his thinking at the time, and how his drug use had been effectively all-consuming. His arrest prompted him to seek professional help. With that help he has remained abstinent from illegal and illicit drugs for at least the last 12 months. With medication and treatment he now has an awareness of what triggered his depression and his subsequent use and abuse of illicit drugs.
I accept his evidence. It seems unlikely should he maintain treatment that he will engage in such behaviour again. But constant vigilance will be required, because under the influence of methylamphetamine he lost his moral compass and committed significant offences; he played his part in the most despicable treatment of children.
He said in evidence, "It's not me, it's not me, I know it's not okay, okay", and at the time he thought it was not real. He now realises that it was real and he was complicit. He said, as he broke down giving evidence, that he still cannot get his head around what he did and why he did it.
He has community support. He has the capacity to work. He has brought shame on his family and his partner and himself. He resolved that he would never go back.
[5]
Applying the Crimes Act 1914 (Cth)
But what Coker did cannot be escaped. The nature of his crimes, the guidance offered by the maximum penalty and the decisions of other courts have to be appropriately considered. Every court is given an individual sentencing discretion and every sentencing exercise must properly take into account the legislative framework, the decision of other cases and the individual case for the offender.
Here two of the offences occurred after s 20(1)(b) Crimes Act was amended. That section, s20(1)(b)(ii), notes if at least one of the offences is a Commonwealth child sex offence and if the Court is not satisfied there are exceptional circumstances a period of imprisonment is effectively required. And by that I mean full time imprisonment. Further, if at least one of the offences is a Commonwealth child sex offence there is to be immediate imprisonment: s 20(1)(b)(iii).
[6]
Submissions
Mr Kwan, who appears for the offender, submitted that that there were exceptional circumstances here. First, because the offending was triggered by drug use for a relatively short period, and that drug use and the offending ceased with the arrest of the offender. Secondly, because Croker has demonstrated a capacity to abstain from illicit drugs and is committed to change. Thirdly, because he is in treatment at an appropriate level and is engaged and is responding well to it. Fourthly, because his evidence demonstrates an unusually a significantly high level of insight, remorse and shame. It is a measure of the man now, not the man who committed these offences 12 months ago.
Mr Kisch says that, while important, these sentencing factors, are not truly exceptional as the Act requires. He draws my attention to the statutory context and a helpful citation in Tootell v R [2012] QCA 273 at [18], taken from R v Kelly [1999] UKHL 4; [2000] 1 QB 198 at 208:
"We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."
In his submission every sentencing exercise during the pandemic has to face those particular problems and they can be taken into account. But, when I come to the other matters, while they allow for significant mitigation to be be afforded the offender, they are not unusual at all, let alone exceptional. Although there are of course prisoners who do not show the insight.
So far as the use and abuse of illicit drugs, while in a different context, he drew my attention to what fell from the Chief Justice in R v Henry (1999) 46 NSWLR 346; 106 A Crim R 149, that while drug use is very important when it comes to structure of a sentence, particularly where rehabilitation has been demonstrated or needs to be supported, drug use cannot excuse the commission of any crime, including crimes such as this.
[7]
COVID
Further we are in the middle of a pandemic which is itself exceptional and has exceptional consequences. Problems that all prisoners will face during the current pandemic. The consequences of serving a sentence during the pandemic are now well recognised. There are many decisions of this court, including some of my own which have been repeated by other judges, and decisions of the Court of Criminal Appeal. I have heard expert evidence. I heard evidence from prisoners and reviewed the COVID material made available to judges from Corrective Services. A prisoner entering custody will go into solitary confinement and be in lockdown for a period of quarantine of two weeks. Other lockdowns are common. Access to programs, work and education is restricted. There are increased tensions within an already violent environment. And that the level of anxiety we all feel in the community is exacerbated by the helplessness any prisoner must feel because they have no control over their own environment and are subject to whatever regime is imposed upon them. I do not underestimate the lived experience of prison, which is significantly worse than what many experience being locked down in their own homes or hotels.
[8]
Synthesis
All of those matters when taken into account with the relatively low number of, albeit highly disturbing, videos and images, could meet the purposes of sentencing without full time custody but that does not answer the question posed by s 20(1)(b) Crimes Act.
In a Commonwealth matter a Court can impose an aggregate sentence. I must indicate the individual sentences. That aggregate sentence in the exercise of my discretion and taking into account all relevant factors would be less than three years, which means I must consider s 20 Crimes Act. In doing so I consider the matters set out in s 16A Crimes Act, and the helpful summary in the annexure to the Commonwealth's written submissions. I also have to consider rehabilitation: s 16A(2AAA). The objective of rehabilitation has to be taken into account in addition to other matters, including whether it is appropriate to make an order imposing conditions about rehabilitation and treatment and whether it is appropriate in determining the length of any sentence or any non‑parole period to include sufficient time for the person to undertake rehabilitation. But as Mr Kisch notes, the requirement is not expressed as displacing or overriding the requirement that the sentence must be of the severity appropriate in all the circumstances of the offence.
Synthesising all those matters. I have determined that given the objective seriousness of what was done, while I can give Mr Coker the significant benefit of all the things he has done, he must be adequately punished for the crimes he committed and his part in perpetuating this pernicious type of offence. Those crimes involve child abuse material involving very young children.
There must be a custodial component to the sentence. It can be significantly moderated for the reasons I have set out, but he and the community must understand (as he failed to do at the time of offending), that given the maximum penalties available and given the seriousness of the material summarised in the facts that to commit such an offence is an offence against the community in general and requires a custodial portion to the sentence.
[9]
Proposed sentence
I cannot impose a sentence in the absence of Mr Coker, who appears by AVL today. I have to give Corrections notice before anyone is admitted into custody. I intend to adjourn the matter for the formal orders to be entered.
I propose to indicate sentences
Sequence 1, Possess/control child abuse material-use carriage service, I take into account the utilitarian value of the plea of guilty which I assess at 25%, and the plea has other benefits, to indicate a sentence of one year and six months
Sequence 2, Use carriage service transmit/publish/promote child abuse, an indicated sentence of one year and one month.
Sequence 4, Use carriage service transmit/publish/promote child abuse, I an indicated sentence of one year and six months.
Sequence 10, Use carriage service to access child abuse material, an indicated sentence of nine months.
The aggregate sentence to be imposed is two years and three months. I will be making a recognisance release order after nine months has been served on the condition that he accept the supervision of Probation and Parole Service New South Wales and undertake all psychological treatment as directed. I note that in making that determination I appreciate and understand that it is likely that the period of custody will interrupt his psychological treatment.
I adjourn these proceedings to 9.30am on Friday 8th October 2021. I direct that Mr Coker attend the Court. I amend his bail accordingly to direct that he surrenders to the Court on Friday 8th October 2021 at 9.30am.
[10]
Forfeiture order
Pursuant to s 23ZD Crimes Act 1914, the following items are forfeited to the Commonwealth:
1. 1 x OPTUS Mobile Phone Model 50310 (IMEI 86805604079089)
2. 1 x Apple iPhone 5S Model ME3325/A - Serial F18LX3LJFF9Y
AUDIO VISUAL LINK CONCLUDED AT 1.20PM
[11]
Orders - 8th October 2021
When this matter was before the Court earlier this week on 6 October 2021 indicated the sentences that I would be imposing and gave the reasons for it. Because of the COVID emergency, Mr Coker could not be here in person but appeared via an AVL link. He has now attended Court in accordance with the undertaking he gave on 6 October.
[12]
Orders
I note that the individual sentences have been reduced by 25% to reflect the utilitarian value of the guilty pleas. I have taken care not to erode that benefit during the process of accumulation.
You are formally convicted of each of the offences.
In relation to the Possess/control child abuse material-use carriage service, I indicate a sentence of 1 year 6 months.
In relation to the Use carriage service transmit/publish/promote child abuse, I indicate a sentence of 1 year 1 month.
In relation to the Use carriage service transmit/publish/promote child abuse, I indicate a sentence of 1 year 6 months.
In relation to the Use carriage service to access child abuse material. I indicate a sentence of 9 months.
You are sentenced to an aggregate term of imprisonment of two years and three months imprisonment to commence on 7 October. Taking into account time served, to expire on 6 January 2024.
I direct that you be released at the expiration of nine months of your sentence which will be 6 July 2022 upon you entering recognisance - that is a bond - pursuant to s 20 (1) Crimes Act yourself in the sum of $400 with the following conditions:
1. To be of good behaviour for a period of two years from this date.
2. To appear to receive sentence if called upon to do so at any time in respect of any breach within the said period.
3. Accept the supervision and guidance of an officer of Community Services New South Wales for as long as they deem necessary and obey all reasonable directions.
4. Engage in psychological treatment as directed.
5. Report to Community Services New South Wales within seven days of release from imprisonment.
[13]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 18 July 2022