R (Cth) v Cole

District Court of NSW|2024-09-05

Introduction

Joanne Cole appears for sentence after pleas of guilty in the Local Court for three offences, namely: First Offence: contrary to s 474.22(1) Criminal Code (Cth) On about 18 December 2021, use carriage service to transmit child abuse material. Maximum Penalty: Imprisonment for 15 years
It is alleged she transmitted five photographs of her daughter when naked in the shower. Second Offence: contrary to s 474.22(1) Criminal Code (Cth) On about 18 December 2021, use carriage service to cause child abuse material to be transmit to herself. Maximum Penalty: Imprisonment for 15 years
It is alleged she transmitted text-based child abuse material. Third Offence: contrary to s 474.23(1) Criminal Code (Cth) On about 18 December 2021, produce child abuse material with intention to be used by herself to commit an offence against s 474.22(1) Criminal Code (Cth) Maximum Penalty: Imprisonment for 15 years
It is alleged she produced the five photographs of her daughter naked in the shower.

Additional Offence

There is also an offence before the court contrary to s 474.22A(1) Criminal Code (Cth) on a schedule pursuant to s 16BA Crimes Act 1914 (Cth) relevant to the second offence: Between about 17 and 18 December 2021, possess child abuse material and use carriage service to obtain or access that material. Maximum Penalty: Imprisonment for 15 years

The Pleas

The offender pleaded guilty in the Local Court on 12 March 2023. Consequently, I will apply a discount of 25% to the sentences that would have otherwise been imposed for the individual offences. Through her counsel she adhered to her pleas of guilty in this court, and confirmed her wish that the additional offence be considered which she also admits.
The offender did not give evidence in the proceedings. She attended the hearing on sentence in court at Albury. I gave her leave to appear for AVL from Albury for the judgement and imposition of sentence.

Pre-Sentence Custody

The offender spent no time in custody for these offences.
She was subject to bail conditions: 1. In respect of her daughter, or anyone with whom she has a domestic relationship, not to : 1. Assault or threaten: 2. Stalk, harass, or intimidate; and 3. Intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in their possession. 1. Not approach the victim or contact her in any way unless the contact is through a lawyer; and 2. To reside only at a specified address in Victoria.
There is no indication that she breached her bail. The conditions are no greater than she must in any event observe and, in the circumstances, do not ameliorate the punishment she faces.

Background

According to the Crown cover sheet the offender was born in 1974, and if correct is now 50 years old and at the time of her misconduct was aged 47 and 48. However, according to the antecedent report and elsewhere she was born in 1977. Little turns on this, for whatever the correct year she was of a maturity that she must have known the evil conduct upon which she engaged with her co-offender, Shane Stewart. I proceed upon the basis that she was born in 1977.
She worked for Stewart as a kitchen hand at a Hotel in Tocumwal, New South Wales where she lived.
Stewart was born in 1979. He was a chef at the hotel, and one of the offender's supervisors. They began a sexual relationship.
The victim, the offender's daughter, was born in 2005, aged 16 at the time of the offences. She usually lived in Melbourne with her father who had primary custody.
27 November 2021 aged 16 years she travelled to the offender's home at Tocumwal for school holidays.

Categorisation of Child Abuse Material

Material identified by Police as child abuse material is classified into categories according to the Interpol categorisation system. Category 1: Real child pre-pubescent perceived to be under 13 years of age: media depicting a real pre-pubescent child/very first signs of puberty and the child is involved in a sex act, witnessing a sex act or the material is focused/concentrated on the anal or genital region of the child. Category 2: Other illegal content, child under 18 years of age: other child abuse material that is illegal within Australia but does not fit Category 1. Media may include images of children likely to cause offence to a reasonable adult where a child is subjected to sadism, torture, bestiality, or humiliation. Images may depict a child as the person conducting the activity or observing other persons. This includes animated, text of children and photoshopped media. Category 3: Non-illegal/indicative of an interest in children.

The Offending

Early on 18 December 2021, the victim found on the offender's phone text-based graphic sexual conversation between the offender and Stewart which commenced on 17 December 2021. In these Stewart fantasised fictitious sexual interactions between the offender, him, and the victim. He expressed his desire for sex with the victim, encouraged the offender to show the victim pornography, and told her to encourage the victim to have sex with him.
The conversation is in Annexure A to the agreed facts. I have read the entirety of that document of five pages.
It is extraordinary that the mother of a teenage daughter would engage in such conversation with her lover as he described his fantasy of the three of them engaged in sexual conduct, including grooming of the child to the point of her willing participation. There is no need to repeat here the offensive text in which the offender clearly acquiesced, but I note the following: 1. The conversation was on 17 December 2021. 2. Stewart began with his "horny thoughts" of the victim and surrounding the offender with what he asserted was love, but which can have no description other than his fantasy of exploitation of the child and grooming her into sexual conduct with her mother for his own pleasure. 3. His fantasy included representations to the victim that they are loving, expressing themselves, and learning to bond in the purest form. 4. He encouraged the victim to remove her mother's garments before sexual contact. He described graphically his fantasy of the child's arousal. 5. He paused for a time, and then wrote, I'm back Would you like me to continue? to which the offender responded, Yes please. 1. He described the victim fondling her mother, and her envy of her mother's body. 2. He represented the interaction as intense and amazing, the purest forbidden love that is no longer forbidden in their family. 3. He described teaching the child how to arouse and pleasure her mother, and her mother's response. 4. He wrote, Wow watching this happen is the hottest thing I ever watched or seen… This must be a reference to him imagining all that he is describing, including cunnilingus, fellatio, and digital penetration. 1. He wrote, Read it to her. Send me a selfie. I like to see you both. I love you both so much Did you like that story? She responded clearly that she did. He encouraged her to tell the victim of this. The discussion extended to him seeing the child's genitalia before it was shaven. He repeatedly asked for this. She discussed sexual conversations that she said she had with her daughter. 1. On occasions the offender affirmed receipt of the text messages from Stewart and indicated her enjoyment and sexual arousal.
This conversation is classified Category 2 in the Interpol categorization system.
On 18 December 2021, the victim showered at the offender's residence. The bathroom had an internal window with a view to and from the kitchen, built as an extension to the house. The window blind was down. While she showered, the offender entered and told her she needed to use the toilet. The victim saw the offender do so then raise the blind slightly before exiting. She saw the offender hold her mobile phone up to the internal window from the adjacent room with the camera lens facing the victim.
At 3.48pm the victim sent a text message to her friend C: I was in the shower, and my mum just came in claiming she needed to use the bathroom. Which, okay whatever. Do what you gotta do. But then as she left she put the blind up in the bathroom a bit. Which can see out into near the kitchen/front door area. I was mid shower when I looked over and saw my mum at the window...with her phone. I left it thinking I was paranoid. Bc let's be real here, I am. I looked over at her on the couch and I swear I saw me in the shower on her phone. I swear it. I'm trying to get my mum to go outside so I can check her phone. I need to know. But yeah, there's the update.
On 19 December 2021, the victim accessed the offender's mobile phone again and found another text-based conversation between the offender and Stewart from 18 December 2021. This is detailed at Annexure B. I have read the entirety of the conversation, from which I noted the following: 1. Stewart threatened to punish the victim if the offender disobeyed him. She protested, to which he wrote: Stewart: It's not me it's all up to you. Are you pushing the conversation Hey good girl I want you to do something for me and you don't have to have the conversation You have until Tuesday day that is the dead line of showing her ok Are you listening to me miss Cole. The offender: Ok yes definitely. And thank you. Stewart: If it isn't done by Tuesday then your going to be more upset than you are now You've been warned and this is your last warning miss Cole I hope you understand the severity of this situation. The offender: Yes I do. 1. The offender told Stewart she and the victim had discussed anal sex and that she told her was painful at first but felt amazing. She told him the victim was interested in everything, and thought Stewart was "hot". He told her to show the victim his pictures with him dressed, "not the dick picks". The offender told Stewart she liked what she saw. 2. He wrote, Oh how I would love to drive up next to her and jump and grab her and put her in the car and take her back to my dungeon. .. already cum watching her shower.
The victim located five photographs of herself naked in the shower saved to the offender's camera roll. The photographs are classified as Category 2 material in the Interpol categorization system.
On 1 August 2022, the victim called the Kids Helpline for advice. They notified Victoria Police.
On 3 August 2022, the victim provided a statement to Victoria Police.
On 16 August 2022, the victim participated in a recorded interview with Victoria Police.

Stewart's Record of Interview

On 30 November 2022, Stewart participated in a record of interview and made the following admissions: 1. He received the photos of the victim in the shower from the offender. 2. He saved the photos in a 'hidden vault' application on his phone. 3. He knew the victim's age at the time, that she was "15 or 16". 4. He knew possession of the photos of the victim in the shower was wrong and an offence. 5. He had the sexual text-based conversations with the offender about the victim, but the offender never told him to stop it.

The Offender's Record of Interview

On 1 February 2023, the offender participated in a record of interview during which she made the following admissions: 1. She took photos of the victim naked in the shower. 2. She sent the photos to Stewart at his request. 3. She acknowledged she received text messages from Stewart suggesting she should encourage the victim to have sex with him. 4. During their sexual relationship, Stewart had her participate in degrading and humiliating sexual acts, including striking her, urinating in her mouth, asking her to get her dog to 'do certain things' to her and photographing those acts. He put cooking implements into her while they were in the workplace.

The Offender

I proceed upon the basis that 1977 was her correct year of birth. She has no antecedent offences against her name, save for a drink driving offence of little relevance beyond the support it gives for her assertion of misuse of alcohol.
She did not give evidence but provided a letter to the court. I am aware of the caution required when considering untested representations by an offender, as discussed for example by Wilson J in Imbornone v R [2017] NSWCCA 144. I note that Dr Dayalan suggested caution in his report, to which I shall come.
She asserts sorrow for her crime, her mortification for allowing her mental health to deteriorate so that she did such a horrible act, which not only hurt her but also the lives of her family, extended family, and most importantly her daughter. As mother she let down and hurt her, the most important person she ever loved. She expresses complete remorse for the turbulence inflicted on her loved ones'. Her uncharacteristic, horrible act jolted her to reflection, and forced her to seek guidance to face and overcome her tumultuous past. She now understands the importance of her mental health care, which, with medication and doctors she will do everything possible to improve so as never get as low as to do something so awful. She wants to become a better person for her daughter, for her to see that she will do all to help herself and one day be someone her daughter can be proud of, and who she would be proud to call her Mum.

Sentencing Assessment Report.

At the time of contact for this report she lived in an assisted living environment funded through the NDIS. She reported that her parents are emotionally distant, and she is estranged from her family. Her sister, however, reported that she deliberately distanced herself from her family and unfairly characterised them as emotionally distant.
She is currently unemployed and has received the disability support pension since 2021. She was last employed as a kitchen hand in 2021 for three to four months, prior to her arrest.
She has minimal criminal history to date, with a previous conviction for drive under the influence of alcohol in 2017 which is of no significance in the assessment of sentence other than as part of the history of her misuse of alcohol .
She reported her belief that she was "only put on this earth to please men", her self-worth dictated by opinions of intimate partners. She said she had never thought about behaving as she did until her co-offender imposed his sexual fantasies upon her. She engaged and maintained her offending to satisfy him.
Their relationship commenced through their mutual employment, where he was in authority over her. She reported that he initiated the idea and pressured her to undertake sexual acts. She denied a legitimate romantic relationship with the co-offender. She said their interactions were solely sexual and believes she was gradually manipulated through grooming. She said the co-offender exerted undue control within the relationship.
She reported consuming 700ml of bourbon a day, sporadically for almost 20 years, including throughout her offending. She did not attribute all blame to alcohol use, but felt it contributed to her poor decision making. Alcohol use was initially to self-medicate as a coping mechanism to deal with childhood trauma.
She has no prior history of sex offending.
She reported diagnoses with various mental health conditions, for which she is now mediated, but which remain unverified. These are discussed in detail by Dr Dayalan to whom I shall come. She attributed her behaviour to mental health, untreated at the time of her offending.
She described her offending as "horrendous" and acknowledged the long-lasting impact to the victim.
She attributed manipulation to the co-offender when her mental health was poor, and that she continued what he asked to ensure their relationship continued. She said her actions in their relationship were informed by her experience of trauma.
She is willing and able to undertake interventions to address her offending behaviours. She is unable to undertake community service work due to a reported diagnosis of acute oesophagus disorder and her current location.
She has not had prior supervision or contact with Community Corrections. Throughout the assessment period she maintained consistent contact, and attended all scheduled appointments via phone, with satisfactory engagement.
She was assessed at a Medium-Low risk of reoffending according to the Level of Service Inventory - Revised (LSI-R). If the court makes a supervised order, Community Corrections will supervise her at the T2/Medium-Low supervision level of the Service Delivery Standards, whereby she will be required to contact a Community Corrections Officer every 6 weeks. Community Corrections will implement the following supervision plan: 1. Referral to the CSNSW Psychologist to identify case management strategies that may need to be implemented in relation to her index offences. 2. Supervision appointments will be underpinned by cognitive behaviour-based exercises to manage her interpersonal relationships and self-awareness development of a prosocial lifestyle. 3. Referral to a local drug and alcohol service, to address alcohol consumption and develop strategies for abstinence. 4. She should telephone the Albury Community Corrections Office within 7 days to receive instructions about her obligations. 5. No conditions other than a supervision condition are required to implement the supervision plan above. She is unsuitable to undertake community service work because she is currently residing in, Victoria, approximately four hours from the closest community service agency; her reported poor health impedes her ability participate in work.
The report may be used to make a conditional release order, a community correction order, or an intensive correction order. Before including a home detention condition on an intensive correction order, the court must request a home detention assessment report from Community Corrections under s17D(2) Crimes (Sentencing Procedures) Act 1999.

Structured Case Note for the Sentencing Assessment.

This is upon file information and is not supported by direct contact with the offender. This is not a comprehensive assessment of risk.
The author summarised the facts, her one prior driving under the influence charge, that she made full admission to the offences, that she reported her mental health was impaired, that she was self-medicating with alcohol, that the co-offender manipulated her, and that she engaged in the offending to ensure the relationship continued.
She disclosed a history of trauma at 12 years of age, and beliefs that her self-worth is dictated by the opinion of intimate partners. She expressed significant remorse for her offending and impact upon her daughter.
Her age and present circumstances were rehearsed., together with those of her daughter, her relationship history, her contact with her sister but not her parents who she described as emotionally distant since childhood. She lacks a social support network, reported various mental health diagnoses, and marijuana use in 2018, using every couple of days, ceasing use on the day of her arrest. She reported difficult alcohol consumption from 28 years of age, consuming 700ml of bourbon per day. She engaged in AA meetings after her 2017 conviction with no benefit. She acknowledges her mental health and substance use issues and willingness to engage in necessary intervention to address her offending behaviour and comply with supervision requirements.
Her mental illness and substance use suggest deficits in general self-regulation, such as impaired problem solving, managing impulsivity and negative emotionality, which may have contributed to her offending Her developmental and relationship history suggest disruptions in intimacy and attachment that may have played some mediating role in her offending behaviours.
With respect to risk of recidivism the following interventions are recommended: 1. Referral for psychiatric assessment to clarify her diagnoses and ensure access to the most appropriate treatment. 2. Access to alcohol and other drug specific intervention. 3. Intervention to address her trauma history, to undertake therapy focusing on intimacy deficits, respectful relationships, boundaries and consent, interpersonal effectiveness, communication, anger and conflict management and healthy intimacy and attachment. 4. Interventions to address general self-regulation and mental health; topics might include emotion regulation, distress tolerance, managing impulsivity and problem solving. 5. Encouragement to expand her network of prosocial supports.
There is currently no custody or community-based specialist treatment options offered by CSNSW for females who sexually offend. In the event of a custodial sentence. the offender may be eligible for custody-based programs such as EQUIPS or Real Understanding of Self Help, however this would be assessed following sentence. As I announced before commencing the judgement I do not intend to immediately incarcerate the offender.
Should the offender receive a non-custodial sentence she would be ineligible for the community-based sex offender program with Forensic Psychology Services. Referral to a privately practicing treatment provider may be an option, however such treatment would be at her expense.
If the offender receives a community-based sentence, she would be referred to a CSNSW Psychologist for further assessment of dynamic risk with the aim of developing a risk and self-management plan in consultation with the supervising officer.

Reports from Dr Satish Dayalan (Forensic Psychiatrist) 29 January 2024 and 23 August 2024

These was tendered on behalf of the offender without objection. There was no challenge to the qualifications, or the experience earned by Dr Dayalan. He was required for cross examination.
The reports are comprehensive and through, the opinions are reached upon the offender's representations, but they do not stand alone, supported by the documented history of care and treatment carefully and thoroughly analysed by Dr Dayalan.

The First Report

For the first report Dr Dayalan conducted a psychiatric assessment of the offender for his opinions upon her fitness to stand trial and eligibility for a mental health impairment defence.
His sources of information were: 1. His psychiatric assessment of the offender on 8 December 2023 via Audio-Visual Link. 2. A letter of instructions from her solicitor. 3. Police Brief of Evidence including her interview and that of her daughter. 4. Charge Certificate. 5. Crown Case Statement 6. Health Records from Geelong Hospital and Barwon Health.
The offender provided the following information: 1. She was a 46-year-old single mother of her daughter aged 18 years. 2. She lived in supported accommodation in Victoria for people with psychiatric disabilities. She was unemployed and received the Disability Support Pension. Her disability stemmed from bipolar affective disorder, ADHD, and dependent personality disorder. 3. She reported a difficult relationship with her parents since childhood. Her father was "tyrannical" and used corporal punishment upon her. He was emotionally abusive, and her mother endorsed his critical remarks. Her parents were emotionally detached, and she was unable to seek emotional support when distressed. As I noted this contrasts with information attributed to her sister by the author of the sentencing assessment report and in the absence of evidence there is no resolution of this topic, which might be her perception in the context of her evolving mental health. 4. Around the age of 13 a family friend sexually abused her after he groomed her and encouraged her to drink alcohol. She had difficulty saying no to others from early age and tended to please. She acquiesced in his advances and had sexual intercourse with him. 5. She was sexually abused by a chiropractor who had her remove her clothes, inappropriately touched her, and digitally penetrated her. She was 16 years old. He was a family friend; she did not disclose the abuse to anyone until in recent years. 6. At high school, she was severely bullied for the appearance of her teeth and her glasses. She was not "the cool girl…I was told I am ugly all the time…I used to hide all the time." To please her bullies, she stole money from her mother to buy food and other items for them. Anxiety symptoms were noted since childhood. She experienced panic attacks, often triggered by exposure to any stress. She recalled symptoms of obsessive-compulsive disorder from age nine. She washed her hands excessively. She blew at objects four times to ensure they were germ free. She checked doors repeatedly and had to knock on the door four times. 7. She self-harmed in her teenage years and early 20's. She made three suicide attempts including overdoses and cutting her wrist. She displayed features of bulimia nervosa, binging and purging since age 19. Depressive episodes were associated with social withdrawal, lethargy, self-neglect, negative ruminations, poor appetite, suicidal thoughts, and self-loathing. She described manic episodes characterised by reckless behaviour including promiscuity, excess spending, stealing, and illicit drug use. She did not worry about consequences and felt invincible. Her sleep deteriorated and she experienced increased energy levels. She engaged in excessive physical activity that resulted in injuries. 8. When prompted, she acknowledged increased rate of speech and irritability. The elated moods lasted two to three weeks. There was no history of psychotic symptoms. She had a pattern of "drifting to a fantasy world" when distressed. 9. She first received treatment with antidepressant medication around age 19 for obsessive compulsive disorder and later received multiple psychiatric medications. She stopped medications soon after feeling better without consulting her doctor. 10. When diagnosed with bipolar affective disorder in her 20's, she received treatment with mood stabilisers. She engaged in psychological treatment but accepted that she had difficulty persisting to completion. A general practitioner diagnosed attention deficit hyperactivity disorder when at age 38 or 39 and prescribed medication but she did not comply. 11. Her first psychiatric admission was at age 46 years following a breakdown. The diagnosis of bipolar affective disorder and dependent personality disorder were reaffirmed. 12. She stopped taking medication two years before the offences upon her decision to adopt a healthy lifestyle to manage her mental health instead. She intended regular physical activity and a healthy diet. She accepted that stopping medication was detrimental. 13. Around the time of the offences, she was drinking up to a bottle of whisky a day for a couple of months and then stopped for a period of time. She struggled to engage in controlled drinking and said, "it had to be all or nothing". She said alcohol assisted her sleep and negative ruminations. She smoked cannabis once a week. She was stressed about her financial situation. She was living with a much younger partner who relied on her financially. Her work was intermittent when her mental health deteriorated but worked hard when she attended. 14. In the days prior to the offences, she continued to attend work. She recalled instability in her mood. Her sleep pattern was worse around the time of the offences due to racing thoughts. She continued to binge and purge. Her energy levels were low. She experienced suicidal thoughts but did not act on them. Her self-esteem was "shockingly bad". She said she engaged in degrading sexual behaviour as she felt she deserved to be treated badly. She denied associated sexual arousal. She said, … it was a combination of I cannot say no to this person…He made me feel important…I felt like I was wanted and I was important to somebody…He was like an authority figure telling me how to be and I would be rewarded with kindness…I was so confused, I didn't know how to get out of it…He was like the ruler". She said, "I was a mess…I was all over the place. 1. There were no psychotic symptoms. She continued to feel anxious and experienced panic attacks about once a week. Her daughter stayed with her around that time. They cooked together and she enjoyed spending time with her. She acknowledged that she discussed sexual topics with her in the days prior to the offences. She denied having previously discussed other than safe sex with her daughter. When asked her reasons for the offending behaviour, she responded, I don't know….I don't how I became to do that…I can't relate to that person…It was like I was having an out of body experience….It is completely against my moral…I would not dream of doing it in my current state of mind…I was not in the right state of mind…It was like I was in a weird fantasy world. 1. She accepted that she hesitated before engaging in the behaviour, aware it was wrong, but was unable to explain why she proceeded with it. She later added that she was manipulated by the co-offender who took advantage of her mental state. 2. At the time of assessment, she was prescribed antipsychotic/mood stabilising medication and antidepressant medication. Support staff supervised her medication due to her forgetfulness. She acknowledged that her medication regime assisted with stabilising her mood. She had not drunk alcohol in the last three or four months. The medication assisted with sleep which could be interrupted by vivid dreams. She made efforts to eat healthily but had instances of binging and purging. She denied suicidal thoughts in the last month. The obsessive-compulsive disorder symptoms were in remission. Anxious ruminations about her finances, the welfare of her daughter, her accommodation, and court proceedings were noted. She felt tense most times and was easily startled. She had one panic attack in recent months. She did not report significant problems with temper. She related well to other residents in the accommodation. Improvement in impulse control was attributed to her medication. Her energy levels improved. An application for funding from the National Disability Insurance Scheme was made. 3. She suffered asthma, an oesophageal ulcer, and a head injury with associated loss of consciousness from a horse-riding accident when a teenager. A brain scan revealed no abnormalities. She experienced seizures from an infection that spread to her brain. 4. She started drinking alcohol at age 18, with intermittent excessive use her 30's. She experienced withdrawals and developed tolerance. She found it difficult to control alcohol use despite adverse effects on physical and mental health. She had drink driving charges. This might be an error given there is only one such offence on the record before me. 5. She smoked cannabis but denied daily use. She experimented with other drugs but denied regular use. 6. She was born in Geelong. She was unaware of birth complications or developmental delays. Her grandfather and four cousins suffered mental health conditions including anxiety, depression, and OCD. She has an older sister. At school, she struggled academically due to concentration deficits. She denied having repeated any years or special classes. Her school records commented that she was easily distracted, disruptive, and did not achieve potential. She denied behavioural problems leading to suspension or expulsion. She completed Year 12. 7. Her employment included hospitality and retail roles. The longest period of employment was with a lighting retailer where she worked for almost eight years. She was easily overwhelmed at the workplace and struggled to perform duties. She was never terminated from work but stopped working due to decline in mental health. She described romantic relationships as "absolute chaotic messes". She was bad in relationships tending to gravitate towards the wrong people. She was a victim of domestic violence. She did not feel secure in relationships. She admitted infidelity. The longest relationship was her marriage of twelve years that resulted in her daughter. 8. Upon mental state examination she presented casually dressed in a reasonable level of self-care. She was polite and cooperative. She was restless and distressed and tearful through parts of the assessment. She made good eye contact, and a rapport was established. Her speech was of increased rate and quantity but not pressured. She presented as anxious, and her affect was labile. There was no disorder in thought form. She denied delusional beliefs and hallucinations. She could sustain attention for the duration of the assessment of two hours. There was no gross impairment in cognition. She accepted that she suffered a multitude of psychiatric conditions and was willing to engage in treatment.
Records from Geelong Hospital include her presentation in April 1999 when she had taken an overdose of antidepressant medication, after an argument with her boyfriend. The overdose was preceded by alcohol. Past history of obsessive-compulsive disorder and bulimia nervosa was noted. It was noted that she was prescribed lithium by her general practitioner in 2004. She previously ended a couple of relationships lasting three and 13 years, respectively. During the assessment she presented as anxious without psychotic symptoms. She was discharged to the care of her general practitioner.
Records from Barwon Health included: 1. Assessment on 21 July 2010 concluding that she presented in a situational crisis (break up with partner of three years) with associated deliberate self-harm (self-inflicted laceration on her forearm). She was regarded to have poor coping skills, chronic anxiety, and cluster B personality traits. 2. On 27 July 2010: symptoms of generalised anxiety disorder against a fragile personality construct. She suffered longstanding severe odynophagia (pain whilst swallowing) in the context of bulimia.
From Geelong Hospital: 1. Admitted on 27 December 2022 with depression and increased use of alcohol in the previous six weeks. She expressed suicidal ideation with vague thoughts of jumping off a cliff. She had a complex mental health history but not a long history of mental health services engagement. Traumatic experiences and extensive domestic violence were noted. Repeated suicidal behaviour since age 19 was reported. She self-harmed when informed a general practitioner was not accepting new patients as she felt rejected. 2. During review on 28 December 2022, she requested that the hospital doctor not abandon her. She was commenced on medication for anxiety and sleep. 3. On 3 January 2023, she said she disengaged from psychological treatment after a few sessions finding it difficult to give her history. She was keen to trial Eye Movement Desensitisation and Reprocessing therapy used in the treatment of post-traumatic stress disorder. Reviews in January 2023 indicated she presented as bright and reactive at times. She reported going to the beach with her dog and swimming. 4. An entry by an "Access" team member dated 5 April 2023 stated that she alleged sexual assault by her housemate, in his late 60's. He asked her to leave the residence and she performed oral sex on him twice so that he would let her stay. She gave a history indicative of kleptomania but replaced this behaviour with a pattern of having sex with strangers. She reported depressive and anxiety symptoms. 5. Review by psychiatric registrar on 9 May 2023 noted she presented with depressive symptoms including chronic suicidal ideation exacerbated in the context of interpersonal conflict with housemates and increased alcohol use. Her presentation was regarded to be more in keeping with borderline/dependent personality disorder. She was recommenced on fluoxetine and her dose of diazepam gradually reduced. 6. She was admitted to a medical unit within the hospital on 15 June 2023 following an intentional overdose on quetiapine with suspected starvation ketosis in the context of alcohol toxicity and bulimia nervosa. She presented with alcohol withdrawal symptoms and required management of delirium. Her liver function tests were abnormal. 7. History of depression, anxiety, alcohol use disorder, ADHD, borderline personality disorder and bulimia nervosa were noted in an entry by psychiatry registrar on 16 June 2023. Prior to admission she had been in a crisis accommodation due to end on the day of assessment. She reported multiple depressive symptoms and hallucinations. It was noted that she alleged sexual assault by her housemate. During the admission due to reported lack of efficacy, antidepressant medication, fluoxetine was ceased, and citalopram added. Medical issues such as genital herpes, anaemia, and oesophagitis were identified and treated during the admission. 8. Care note dated 17 June 2023 stated that she reported nightmares and flashbacks relating to childhood sexual abuse and trauma as an adult. 9. She was admitted on 30 August 2023 to a mental health facility after she presented with active suicidal ideation in the context of alcohol dependence syndrome and ongoing issues with accommodation. It was noted that she was drinking 750 ml's of spirits daily. History of complex post-traumatic stress disorder, substance use disorder, and dependent personality disorder was reported. She discussed the trauma in her childhood and claimed to have experienced manic episodes characterised by excess spending and promiscuous behaviour. The treating team was of the impression there was not sufficient evidence to support a manic episode to justify the diagnosis of bipolar affective disorder. She presented as emotionally distressed. She was concerned about her father's welfare; he was in a coma. She was anxious about homelessness and being discharged from the unit. Improvement in mood was noted after she completed detoxification. There was no evidence of psychosis. She was assessed to have borderline personality traits. She was recommenced on antidepressant medication. She was continued on quetiapine. The diagnosis was adjustment disorder with low mood and suicidal ideas in the context of alcohol dependence syndrome and emotional dysregulation (secondary to traumatic events in childhood). She was discharged on 14 September 2023 to supported accommodation in Geelong. 10. Review on 20 October 2023 noted she described a pattern of avoiding and running away from problems. She acknowledged tendency to please people and seek care from others. She gave a history of premenstrual dysphoric syndrome. She was keen to commence a mood stabiliser, but her presentation was not convincing for a diagnosis of bipolar affective disorder. Her difficulties were regarded as histrionic and borderline personality style. 11. She presented as teary and upset on 30 October 2023. Troubles with living circumstances were reported. Report from Pilbara Community Legal Service of 9 December 2022 indicated that she was assessed as an extremely high-risk victim.
From the text messages attached to the draft statement of facts with detailed sexualised conversation between offender and Stewart. it was evident that he assumed a dominant role and often instructed her to comply with his directions. Responses suggest she was sexually aroused from the conversation. There was no evidence to indicate the presence of any confusion in her texts.
Her police interview on 1 February 2023 noted she had reported suffering from mental health problems for a long time. She claimed she had been a mental health wreck when her daughter came to stay with her in November 2021. She claimed she did not know what she was doing. She detailed various sexualised behaviour that she was asked to do by Stewart. She claimed he urinated in her mouth and physically assaulted her for sexual gratification. She spoke about low self-worth and how she tried to please others. She repeated that she lost her moral compass.
In her police interview her daughter stated that the offender repeated to her that Stewart was a "good guy". The offender also encouraged her daughter to take explicit photos together with Stewart and herself. She said that she had grown up witnessing her mother fighting with a lot of people.
Dr Dayalan offered his psychiatric opinion and diagnoses: 1. She described a troubled childhood, felt rejected by her parents and her peers at school. Physical and emotional abuse endured at home in conjunction with bullying at school and predisposed her to heightened anxiety in interpersonal functioning. 2. She was subject to sexual abuse in her childhood. These experiences adversely affected her development of self and identity contributing to maladaptive behaviour patterns such as seeking to appease others, disordered eating patterns, and self-destructive behaviour. 3. She described mood instability from an early age; evident from the history she has significant problems with impulse control. 4. Fear of abandonment in relationships and impaired interpersonal functioning were acknowledged by her. 5. She suffers from borderline personality disorder (one of the Cluster B personality disorders) as per the criteria in the Diagnostic and Statistical Manual for Mental Disorders Version 5. This is consistent with the opinions of multiple mental health professionals who have reviewed the offender over the years.
Dr Dayalan explained the impact of borderline personality disorder upon individuals.
The offender suffered from depressive and anxiety disorders from an early age and received treatment with antidepressant medication. The condition is associated with dissociative symptoms that she reports to have experienced. She seeks to understand and validate her unstable mental health and functional impairment through various psychiatric diagnoses. Given the complexities associated with her personality disorder and exacerbation of certain traits from excess use of alcohol caution is needed in ascribing the symptoms/behaviour reported by her to various psychiatric diagnoses.
She described periods suggestive of hypomanic episodes, but this was not corroborated by objective evidence and disputed by mental health professionals who reviewed her during inpatient admissions. The fluctuations in mood can be attributed to the affective instability associated with her personality structure and the impulsivity probably contributes to reckless behaviour.
Attention deficits are common in individuals with heightened anxiety and based on the available information a diagnosis of attention deficit hyperactivity disorder cannot be confirmed.
The pattern of use of alcohol supports a diagnosis of alcohol use disorder in early remission.
Upon her fitness to be tried assessed with regard to principles set out in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. 1. She understood the offences with which she was charged, could identify her plea, and provide a rational explanation for choosing it. She appeared to have the capacity to register information provided on the consequences of entering her plea. She had the ability to enter a plea. 2. Her responses indicated a superficial understanding of the nature of the court proceedings. 3. She could sustain attention through the course of the interview and comprehend and retain information provided to her. 4. She would be able to follow the court proceedings in a general sense and understand the substantial effect of any evidence presented against her. 5. Heightened anxiety during court proceedings could impact on her capacity to follow the proceedings but special provisions such as regular breaks and presence of a support person could assist. 6. There was no evidence of thought disorder and her responses to questions were coherent and relevant. She denied persecutory beliefs incorporating her legal representatives. She appeared to have the ability to provide instructions to her counsel and explain her version of facts to her legal representative and the court. She had sufficient capacity to make a defence for her charge and decide on the defence and relay it to court. She would be able to exercise the right to challenge jurors.
The offender was fit to stand trial on a balance of probabilities.
Upon whether she had available a defence of mental health impairment: 1. She suffers from borderline personality disorder, a condition associated with ongoing disturbance in mood and thinking. resulting in impairment of the emotional well-being of the individual, their judgement, and behaviour. 2. The condition would fulfil the criteria for mental health impairment as defined in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. 3. Given the chronic nature of the condition, she was suffering from borderline personality disorder at the time of the offences. She was also abusing alcohol and therefore suffering from alcohol use disorder. 4. The relationship with her partner was strained. 5. The health records indicate that her mental health deteriorated when romantic relationships ended, and she presented with acute distress and suicidal behaviour. 6. It is likely that she experienced further deterioration in her mental state around that time and probably suffered from a depressive disorder given her account of mental state and functioning. 7. Factors relating to her mental health conditions probably contributed to the offending behaviour such as fear of abandonment resulting in excessive compliance with the instructions of Stewart and poor impulse control. The disinhibition and impaired judgement stemming from excess use of alcohol could have also contributed. The text messages and the offending behaviour did not indicate the presence of any confusion or psychotic symptoms that would have rendered her incapable of knowing the nature and quality of her actions. She acknowledged she was aware of the wrongfulness of her actions but said that she experienced difficulty with refraining from the behaviour due to feeling controlled by Stewart. 8. There is insufficient evidence to suggest that her mental health condition had the effect on her that she could not appreciate the wrongfulness of her behaviour.
Dr Dayalan offered the opinion that the offender did not have the defence of mental health impairment available to her.

The Second Report

Dr Dayalan provided his second report on 23 August 2024 specifically for the sentence proceedings.
He confirmed with the offender the accuracy of the background material and as recorded in the first report dated 29 January 2024.
His principal sources of information were the offender's psychiatric assessment on 9 August 2024 via Audio-Visual Link, a letter of instructions from her solicitor, and the transcript of the sentence proceedings in R(Cth) v Shane Stewart of 15 February 2024, and remarks on sentence in that matter of 22 February 2024.
The clinical interview rehearsed her age and status, and that of her daughter, now age 19, with whom has not had contact since being charged. Dr Dayalan rehearsed her current circumstances, consistently with the content of the first report.
He rehearsed the psychiatric history consistently with the first report. He rehearsed her treatment and management history, the information she provided regarding he circumstances of the offences and her mental state at the time. He confirmed her explanation that she stopped taking her psychiatric medications two years prior to the offences, to adopt a healthy lifestyle to manage her mental health instead. She accepted this was detrimental to her. He confirmed her alcohol use about the time of the offences, her cannabis use, her stressed financial situation, her younger partner who relied upon her financially, her intermittent work, her mental health deterioration, and in the days before the offences her continued attendances at work.
The report repeats her assertions that she was detached and dissociated, binging, and purging, with poor sleep, and suicidal ideation. She confirmed loss of her sense of worth reflected in masochism in the hands of Stewart who made her feel wanted and important, who presented as an authority figure in whose hands she deserved to be treated badly. As an authority figure he told her how to be and she would be rewarded with kindness. She said she was confused and did not know how to withdraw; he was like a ruler,
She continued to feel anxious and experienced panic attacks about once a week. Dr Dayalan noted trauma related symptoms. Asked her reasons for the offending behaviour, and he repeated her response as earlier quoted.
She said she was manipulated by Stewart who had taken advantage of her mental state. She said she, … felt terrible…there's not a day that I don't think about it…I feel awful and sorry…just perplexed as to how that happened…I struggle with it every day - because it is wrong…it is putting my daughter in danger…I have given her a sentence...she could struggle with relationships because of what I had done…it's shameful, disgusting…I don't deserve happiness…I deserve every horrible thing that comes my way….so I can feel pain every day.
The report discussed her progress since the offences, her move to Victoria from Western Australia after being charged, hoping for assistance from her sister. She did not have stable accommodation after the move, drank to excess, her mental state deteriorated, and she was admitted to a psychiatric inpatient unit in the context of suicidal ideations. She was an inpatient for three to four months and then discharged to her current accommodation.
In May 2024, she was readmitted with relapse of acute suicidal thoughts and excess alcohol use. Her antidepressant medication was changed. She continued with antipsychotic/mood stabilising medication. After discharge she attended weekly appointments with drug and alcohol services. She abstained from alcohol. Her mental state Improved after the hospital admission in May 2024. Suicidal thoughts reduced. She engaged in regular physical exercises, but she became obsessed with exercise and diet. There was exacerbation of her eating disorder due to preoccupation with body image. She continued to experience fluctuations in her mood but not as extreme as before.
Her self-esteem remained poor. Medication assisted her sleep pattern. She enjoyed exercise and cooking for herself and other residents. She socialised with other residents and shared a good relationship with staff.
There were no recent panic attacks, she continued to experience trauma related symptoms, she engaged in compulsive behaviour such as repeated washing her hands and scrubbing her scalp. She repeated most behaviours in the multiples of four fearing negative consequences otherwise.
Her medical history, drug and alcohol history, personal and family history were discussed as in the first report.
Upon her mental state examination for this report, she appeared restless and was distressed during parts of it. She tolerated interruptions without irritability. She cooperated. She made good eye contact, and a rapport was established. The rate and quantity of her speech were increased but she was not pressured. Her mood was anxious and her affect reactive. There were no psychotic features such as disorder in thought form, delusions, or hallucinations. There was no gross impairment in her cognition.
She believed she suffered from multiple psychiatric conditions and was willing to engage in treatment.
Dr Dayalan rehearsed the health records and collateral information as was discussed in his first report. He noted the psychiatric diagnosis repeatedly mentioned in the health records of borderline personality disorder, one of the Cluster B personality disorders; an enduring pattern of mood instability, poor impulse control, suicidal behaviour and thoughts, unstable relationships, fear of abandonment and rejection and dissociative experiences. With reference to the criteria in the Diagnostic and Statistical Manual for Mental Disorders Version 5, she suffers from borderline personality disorder. The emotional dysregulation and dysfunction in interpersonal functioning associated with this condition predisposes her to experiencing anxiety and depressive disorders. She described: 1. Intrusive symptoms associated with early traumatic experiences; 2. She engaged in avoidant behaviour; evidence of emotional dysregulation, poor interpersonal functioning, and negative self-worth were noted from her remarks during the assessment; 3. She displayed associated features of heightened threat perception such as impaired sleep, exaggerated startle response, and hypervigilance, consistent with diagnosis of complex posttraumatic stress disorder which shares features with borderline personality disorder.
Dr Dayalan wrote that this is a tentative diagnosis and longitudinal assessment will be required to confirm. It was evident that she was keen to attribute her chronic impairment in functioning to various psychiatric conditions. She strongly identified with different psychiatric conditions and presented as quite suggestible when asked about psychiatric phenomena. Dr Dayalan noted that caution is needed in making diagnosis based entirely on self-report. There is no objective evidence supporting presence of manic or hypomanic episodes. I commented earlier upon this referring to Imbornone v Regina ibid.
The report continues: 1. The pattern of alcohol use supports a diagnosis of alcohol use disorder which has had a remitting and relapsing course. 2. Around the time of the offences the offender continued to suffer from borderline personality disorder and alcohol use disorder. The discontinuation of her psychiatric medications and abuse of alcohol would have destabilised her mental health. 3. She was in an unstable relationship with her partner around that time and there is a history of extreme emotional dysregulation in the context of strain in relationships. 4. In these contexts, she described experiences of anxiety and depression. She also reported associated impairment in functioning which led her to take days off work. She probably suffered a depressive disorder around the time of the offences. Low self-esteem and a degree of self-loathing would have contributed to her adopting a submissive and degrading role in the relationship with Stewart; her submissive attitude probably absolved her of the stress and anxiety associated with making decisions. The fear of abandonment and rejection associated with her personality disorder also influenced the dynamics in the relationship. 5. The nature of the relationship with Stewart was a key contributory factor for the offending behaviour. 6. Abstinence from alcohol and improvement in mental health following recommencement of treatment has allowed her to reflect. She presented as remorseful and articulated the impact of her behaviour upon her daughter. 7. Around the time of the offences, her reasoning ability and judgement were probably affected by the alcohol abuse, submissive stance, and depressive disorder. With improvement in her mental state after the offence she appreciates the seriousness and consequences of her actions. 8. Incarceration will be more onerous upon the offender given her underlying mental health conditions. It is likely that placement in a setting with women prone for violence will exacerbate her trauma related symptoms. She is vulnerable to influence from antisocial peers in the correctional environment. She appears to have gradually built a relationship with other residents and staff after a period of instability in life. She engaged in treatment to rehabilitate herself. Imprisonment will disrupt the progress made. She will need to continue treatment with psychiatric medication for a few years even after resolution of anxiety and depressive symptoms to minimise the risk of relapse. She will benefit from dialectical behaviour therapy shown to be effective in reducing emotional and behavioural dysregulation noted in individuals with borderline personality disorder. She will need to engage in an alcohol rehabilitation program, and it would be recommended that she maintains complete abstinence given her repeated failed attempts at controlled drinking. Vocational training and ongoing assistance from social support services are also recommended.
The enduring nature of personality disorders, her limited psychosocial support, her multitude of mental health problems, and history of intermittent compliance with treatment adversely impact on her prospects of rehabilitation. However, she responded favourably to current treatment and appears motivated to rehabilitate. Continued engagement in treatment in the long term and abstinence from alcohol will positively impact on her prognosis.
In considering factors associated with risk of reoffending such as substance use problems, association with antisocial peers, problems with accommodation, employment history, financial circumstances, educational attainment, psychosocial support, attitude towards offending, mental health, and personality disorder, she has a moderate loading of recidivism risk factors.

Dr Dayalan's Evidence

Dr Dayalan gave evidence on 5 September 2024 via audio visual link to the court in Albury. He confirmed his assessment of the offender and the preparation of his reports upon fitness and whether she had a mental health impairment defence and for the sentence proceedings. He faced cross examination by the Crown focused upon his second report. He confirmed: 1. The information upon which he prepared the report including the clinical assessment over 90 minutes on 9 August 2024 via audio visual link. 2. He wrote an earlier report, 29 January 2024, for which he had seen her previously. 3. The written material provided was from before and after the offending. I note however that a good deal of the material predates the offending. 4. The services for care and treatment reviewed her on ongoing basis, with different professionals providing care rather than one specific doctor.
The state of dissociation and his attribution to the offender of her detachment to which he referred at page four he explained. This is a time when in a psychological sense the person detaches from what is happening around them. They could also have a sense of detachment from themselves. It includes feeling detached from one's surroundings or from oneself as a person.
Dr Dayalan was asked to consider: 1. The nature of the conversation between the offender and Stewart over two days, 2. Her responses at various times with encouragement to him to continue the conversation in which she also responded about taking on shifts at work, 3. The steps she took to photograph the victim, and that she acknowledged to Dr Dayalan leading to the January report that she understood her wrongfulness of the actions at the time, and 4. The implication that this was inconsistent with complete detachment from reason, logic, and rationality, and dissociating as described by her.
He responded that it was difficult to agree or disagree because there was no corroborative evidence to suggest dissociation. It was her account of detachment, leaving as the only argument available that she might have referred to feeling detached from her normal self, that she had done something out of character for her. This he said is supported by the absence of prior sexual offending behaviour.
When taken to the tentative diagnosis of complex post-traumatic stress disorder, that it would require a longitudinal assessment to confirm, he said this would preferably be by one particular service or one particular clinician to see if there was consistency in reported symptoms provided by her, with review of her mental state whilst abstinent from alcohol or other substances.
He was taken another passage where he wrote, Low self esteem and a degree of self loathing would have contributed to Ms Cole adapting a submissive and degrading role in the relationship with Mr Stewart. Her submissive attitude probably absolved her of the stress and anxiety associated with making decisions. A fear of abandonment/rejection associated with a personality disorder had also influenced the dynamics in the relationship. The nature of the relationship with Mr Stewart was a key contributory factor to the offending behaviour.
He said it would be one of the key aspects, that she has a personality disorder and fear of abandonment resulting in her adopting a more submissive role for periods of time.
He wrote also that in addition to continuing her psychiatric medication regime for a few years, she would benefit from engaging in dialectical behaviour therapy, evolving from cognitive behaviour therapy upon the association between thinking process, mood, and behaviour, but with emphasis on teaching the individual about tolerating distress, with various exercises to use when feeling distressed as opposed to exhibiting anger, aggression, or self-harm behaviour. The techniques are for when they are distressed. He said the offender would need to engage in an alcohol rehabilitation program, He understood that she was not engaged in dialectical behaviour therapy. She was engaged with the mental health services which might incorporate discussions about alcohol abuse.
He did not know the frequency or duration of the treatment she was receiving from mental health services, but from his knowledge of committing to mental health services, the frequency will vary depending on whether there was deterioration in mental state or apparent stability, such that she would not be fixed on one schedule.
In response to re-examination Dr Dayalan agreed that though he could not say that he was briefed with medical records that exceeded 40 pages, he believed there was an extensive amount of medical material that revealed the offender had been admitted to a hospital for mental health concerns on two occasions since she was charged, and there was evidence of engagement with local mental health services around those admissions.

The Co-Offender

Judge Grant sentenced Stewart on 22 February 2024. I was provided with his Honour's judgement.
Before a magistrate he pleaded guilty to: 1. Sequence One, on or about 18 December 2021 did possess child abuse material obtained or accessed using a carriage service - five photographs of the victim in a shower - contrary to s 474.22A(1) Criminal Code Act 1995 - maximum penalty 15 years' imprisonment. 2. Sequence Nine, between about 17 and 18 December 2021 did transmit child abuse material using a carriage service - text-based child abuse material - contrary to s 474.22(1) Criminal Code Act 1995 - maximum penalty 15 years' imprisonment. 3. Sequence Ten, on or about 18 December 2021 did solicit child abuse material using a carriage service - photographs of victim's vagina - contrary to s 474.22(1) Criminal Code Act 1995 - maximum penalty 15 years' imprisonment.
The facts before his Honour compare with those before this court with the additional information that Stewart lived in Tocumwal with his partner and three children. Whatever the strength or nature of that relationship its existence speaks to the objective amorality of his sexual relationship with this offender and their conduct leading to these charges.
His Honour had a Victim Impact Statement, read in court. She was targeted by a predator and exploited; she felt unsafe and insecure so far from home and those who loved her. Stewart poisoned every aspect of her life, her regular counselling sessions, and the disruption to her final year at school. She has a supportive father who took time off work to assist with interviews, appointments, and counselling. Her grades as school slipped, eating meals was a struggle due to anxiety. Her mental and physical wellbeing suffered. She said that what happened was not fair or excusable.
His Honour had appropriate regard to the victim's trauma noting that such offences, involving breach of trust from mother to child, profoundly affect victims for years, if not all their lives. Psychological and emotional damage is assumed. No sentence imposed could restore the victim.
There is no victim impact statement provided for these proceedings, the victim perhaps not wishing to add to the distress of her mother. I do not know one way or another. However, as noted by his Honour, psychological and emotional damage is assumed in these cases.
His Honour considered the sentence factors for Commonwealth offences and specifically relevant to this case, noted that Stewart saved the photos to his phone, transmitted abuse material to the offender in graphic sexual text-based conversation, and asked the offender to send him a photo of the child victim's vagina. No such photo was sent. He summarised each of the offences, and noted Stewart's admissions to police, including that the photos were for his sexual gratification.
Stewart did not disseminate the five photographs to others. His Honour accepted the evidence that he deleted them before he was arrested. His Honour noted the small number of images, the offences were within limited time, his actions gave rise to a grave breach of trust by this offender in the relationship with her daughter, and the victim at age16 was approaching adulthood. His Honour noted the classifications.
His Honour found Sequence One - possession of the five photographs was at the low end of the range. His Honour found Sequences Nine and Ten were well below midrange. Although three separate criminal acts, they were committed in the same course of conduct, driven by sexual gratification, and in an ongoing fashion. His Honour found there should be minimal accumulation of the sentences, given the need for proportionality and totality.
His Honour found contrition in the pleas of guilty, the admissions, what psychologists attributed to him, and a letter of apology read to the Court. He pleaded guilty at the first opportunity facilitating the course of justice. His Honour considered utilitarian value of the guilty pleas: Xiao v R (2018) 96 NSWLR 1 and specified 25% discount.
His Honour found cooperation with law enforcement upon the execution of a search warrant and arrest. He participated in an interview. He had no criminal history, took responsibility for his actions, and had good insight into the impacts of his offending behaviour. His actions showed empathy towards the victim. He had a medium to low risk of reoffending.
His Honour did not accept the Crown submissions that specific deterrence was a matter of significance, nor that the offender trivialised the offending. His Honour accepted Stewarts comments about this offender and her involvement as his subjective view when interviewed. After therapy he was acutely aware of his offending and its effect upon the victim.
Though relevant, specific deterrence was not a significant matter.
His Honour had a Sentencing Assessment Report which represented that Stewart's partner expressed her ongoing support practically and emotionally. His family offered prosocial support and values. He was employed fulltime at an abattoir as a knife sharpener.
His Honour found that the offending appeared opportunistic, with Stewart describing himself embedded in a "fantasy" that was exciting to him at the time. He expressed awareness of his impulsivity and reactive behaviours, describing his actions as "horrible".
Stewart reported long-term polysubstance abuse inclusive of cocaine and cannabis, which increased when his mental health declined. After his arrest he undertook the SMART Recovery program and completed 16 sessions.
The psychologists diagnosed bipolar 2 disorder, attention deficit hyperactivity disorder, and substance use disorder. Stewart denied any violence between his parents but reported constant verbal violence as far back as he could remember. He father had a bad temper and his mother experienced this verbally; whilst he and his siblings suffered corporal punishment.
In Year 6 a teacher called him to a classroom at lunchtime for picking on a student and forced him to expose himself. He blocked out much of what happened after that. He failed Year 12.
He began a cooking apprenticeship but didn't finish. He has been an apprentice in over 40 restaurants, and he spent 25 years cooking in Australia and overseas until January 2023. He worked in the abattoir since February 2023. He used cocaine, and smoked cannabis every now and then, which became daily before his arrest. He lives with his partner and her three children.
He had a high sex drive and was addicted to porn, suffered severe depression, and moderate anxiety.
Stewart represented to the psychologist that the offending began after he employed someone new in the kitchen, described her as quite sexual and commenced an affair, during which she continually spoke of her daughter. Stewart said that at some point he met the victim after she worked in the kitchen for one shift, and soon after there was a lot of fantasy talk between him and the offender about having a threesome with the victim. The fantasy progressed to his possession of images of the victim. He said that after all that had happened, he had time to reflect, and accepted his actions were wrong. At the time he did not see them as wrong and thought it was all part of the fantasy.
He was always a very sexually active person often trying to chase new and exciting things. He became bored easily, needed to seek excitement, and along the way exercised poor judgment. He was attributed with remorse; he said it was wrong for him to pursue this.
The psychologist's opinion is that Stewart's underlying psychological conditions played a role in leading to impaired decision-making. His conditions are well documented in psychological literature as leading to impaired decision-making due to impact on critical thinking. Sufferers of ADHD are prone to make impulsive not well thought out decisions, as will the impact of depression and substance abuse on mental processes. Ongoing psychological intervention will likely reduce Stewart's risk of reoffending. Stewart has long struggled with his mental health illness. The conditions diagnosed would likely be further exacerbated in a prison setting, making him more vulnerable.
Stewart's counsel submitted that the experience of domestic violence at the hands of his father and of abuse by his teacher would operate to reduce his moral culpability, moderate the weight to be given to general deterrence and specific deterrence, and moderate the weight attributable to protection of the community.
His Honour accepted the Crown submission that such deprivation was not profound and that the Bugmy principles were not enlivened: Bugmy v The Queen (2013) 249 CLR 571. His Honour considered his childhood as part of the instinctive synthesis of sentencing. His Honour saw the sexual abuse, so called, differently and took the view that it gives insight into his mental health and the development of post-traumatic stress disorder.
His Honour had a report from another psychologist upon whom Stewart attended from 2 May 2023, with 14 sessions. The treatment was specifically designed to address child-related sexual offending and sexual offending in general. The program generally takes twelve months. Stewart presented in sessions as highly emotional, labile, often crying and sobbing, recalling the impact of his offending behaviour on the victim, her family, himself, his family, the community, and the justice system, indicating shame and remorse, exacerbated by the small community in which he resides. He also engaged in therapy to address symptoms of complex post-traumatic stress disorder, bipolar 2 disorder, and stimulant use disorder. He made consistent progress. The psychologist concurred with the diagnosis of bipolar 2 disorder, complex post-traumatic stress disorder, and attention deficit hyperactivity disorder, that Stewart required ongoing therapy, but he did not believe Stewart would be eligible for treatment within the Corrections environment if he were to receive a custodial sentence, and therefore incarceration would interrupt his therapy, including offence-specific treatment, and interrupt treatment and observation of his symptoms of complex post-traumatic stress disorder, bipolar 2 disorder, and stimulant use disorder. This could result in exacerbation of his symptoms, increase his risk of reoffending and difficulty for further treatment.
His Honour had a letter from Odyssey House which in part said that Stewart was assessed and engaged in the non-residential treatment program at Odyssey House community service. He completed 26 sessions of SMART Recovery Australia online with Odyssey House commencing on 20 March 2023 to 29 November 2023.
His Honour noted s 16A(2AAA) Crimes Act 1914, requiring a Court sentencing an offender for a Commonwealth child sex offence to take into account, in addition to any other matters, the objective of rehabilitation, including whether it is appropriate when making an order to impose any conditions about rehabilitation or treatment options; and whether it is appropriate in determining the length of any sentence or non-parole period to include sufficient time for the person to undertake a rehabilitation program. This requirement is not expressed as displacing or overriding the requirement that the sentence must be of severity appropriate in all the circumstances of the offence.
His Honour considered the authorities to which the Crown invited attention. These concerned matters that contrasted significantly with the present case.
His Honour imposed an aggregate sentence, upon the application of s 68(1) Judiciary Act 1903 which drew forth the aggregate sentencing scheme under s 53A Crimes (Sentencing Procedure) Act 1999 for federal offences dealt with on indictment: DPP (Cth) v Beattie [2017] NSWCCA 301 at [141] to [146].
The indicative sentences were. Sequence One, twelve months. Sequence Nine, 18 months. Sequence Ten, 18 months. His Honour imposed an aggregate sentence of 24 months from 22 February 2024 to expire on 21 February 2026, the offender is to be released on a recognizance release order upon giving surety (without security) in the sum of $500 on 21 April 2024 to be of good behaviour for a period of 22 months, with further conditions as required by s 20(1B) Crimes Act 1914: 1. Be subject to the supervision of a probation officer appointed in accordance with the order; 2. Obey all reasonable directions of the probation officer; 3. Not travel interstate or overseas without the written permission of the probation officer; and 4. Undertake such treatment or rehabilitation programs the probation officer reasonably directs.

The Crown Submissions

The Crown provided written submissions and spoke to them in court. They are well support by relevant authority which there is no need to repeat here. There is no argument advanced to suggest that they do not apply or do not support the propositions for which they are cited.
Considering the objective seriousness of the offending, by the offender against her daughter in a gross breach of trust, and the need for general and specific deterrence, the only appropriate sentence is one of full-time imprisonment. There is a presumption of immediate imprisonment for offences of this nature, and there are no exceptional circumstances justifying departure from this.
Considering the material provided on behalf of the offender and her circumstances I do not agree that there are no exceptional circumstances.
The Crown reminded the court of Part 1B, Crimes Act 1900. 1. The Court must sentence the Offender in accordance with Part 1B Crimes Act 1914 (Cth). 2. The overarching requirement imposed by Part 1B is that the Court impose a sentence which is of 'a severity appropriate in all the circumstances of the offence: s 16A(1) Crimes Act 1914. 3. The Court must consider the matters listed to the extent that they are relevant and known s 16A(2). Crimes Act 1914, to ensure the offender is adequately punished for the offending. Although not specified in section 16A(2), the court is to bring to bear common law principles such as parity, proportionality, and totality; employing the "instinctive synthesis" of relevant considerations, rather than a multistage approach, assessed against the prescribed maximum penalty from which it is clear that the offences are inherently serious. Each has a maximum penalty of 15 years' imprisonment providing a yardstick for an appropriate sentence, demonstrating the seriousness of the offences, the importance of general deterrence for child sexual abuse and grooming and procuring for it, to address the impact upon the community and the child. An appropriate penalty will reflect the harm done and deter others and denounce and appropriately punish.
The Crown addressed the specific considerations itemised in s 16(2) Crimes Act 1914:

Nature and circumstances of the offending - s 16A(2)(a).

With reference to Minehan v R (2010) 201 A Crim R 243 at [94], where R A Hulme J set out factors that may be relevant to assessment of the objective seriousness of offences involving the possession or transmission of child abuse material: 1. Whether actual children were used in the creation of the material. 2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed. 3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material. 4. The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted. 5. In a case of possession, the offender's purpose, whether for their own use or for sale or dissemination. 6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated or transmitted. 7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided, or received for the acquisition or dissemination or transmission. 8. The proximity of the offender's activities to those responsible for bringing the material into existence. 9. The degree of planning, organisation, sophistication and/or deception employed by the offender in acquiring, storing, disseminating, or transmitting the material. 10. The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender. 11. Whether the offender acted alone or in a collaborative network of like-minded persons. 12. Any risk of the material being seen or acquired by vulnerable persons, particularly children. 13. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. 14. Any other matter in s 16A Crimes Act 1914 bearing upon the objective seriousness of the offence.
The Crown summarised the nature of the offending from the Agreed Statement of Facts: 1. The offender as a kitchen hand at a hotel in Tocumwal, was supervised by Stewart with whom she commenced a sexual relationship. 2. On 18 December 2018, her 16-year-old daughter was staying with her during school holidays; she sent Stewart covert photographs she took of her daughter naked in the shower. 3. An aggravating feature is the context of their relationship with a gross breach of trust in which the offender abdicated responsibility as mother and protector.
Charges One and Three relate to the Offender's transmission to Stewart of five photographs of the child victim naked in the shower. 1. The child could not consent to the production of child abuse material in her likeness. Nonetheless, it is noteworthy that the photographs were taken covertly and without the victim's permission. She was vulnerable with a reasonable expectation of privacy in the bathroom of her mother's home. This seriously breached this privacy and the offender's responsibility in the parent child relationship. 2. The limited number of images, five, does not necessarily detract from the objective seriousness of the offending: Edmund Heathcote (A Pseudonym) v R [2014] VSCA 37 at [48] . There it was said that though the volume of images was comparatively small, this is not the single determinant of an appropriate sentence. It is necessary to consider culpability in the context of the offending as a whole. An offender might have accessed or imported a large number of images but not distributed or transmitted them. Others may have transmitted images but not in the context of exploitation and breaches of trust of children with whom they stood in a quasi-parental relationship. 3. The photographs were taken, and sent to Stewart, in the context of an ongoing, graphic, and highly sexualized text-based conversation, over a two-day period. It was not spontaneous. This increases the objective seriousness. The photographs were transmitted directly by the Offender to Stewart. 4. The Offender admitted that she took the photos and sent them at Stewart's request.
Charge Two arose from conversation between the offender and Stewart containing text-based child abuse material, which describes sexual activities in which Stewart wished to engage with both the offender and the child victim. He referred to the child victim's age and associated sexual inexperience.
This offending is objectively seriousness particularly when viewed in context with Charge One. It relates to a child, not a hypothetical or fictional character, and preceded the production and transmission of requested material.
The Offender actively participated in the conversation and encouraged Stewart to continue, including when asked by Stewart "would you like to continue", and she responded, "yes please". She expressed pleasure upon receipt of the messages, for example, that she wanted to reach orgasm. Stewart directed the offender to ask the child explicit sexual questions and make comments intended to prepare the child victim for sexual activity. The offender kept the conversation going at every opportunity.

Personal circumstances of the victim/victim impact statement - ss 16AAAA & 16A(2)(d), (e), (ea) Crimes Act 1914

A living child victim, the Offender's own daughter, was exploited. She declined to submit a victim impact statement. No implication is to be drawn from the absence of a victim impact statement: s16AB(3) Crimes Act 1914. As I noted one was provided to Judge Grant but for whatever reason, perhaps from concern for the offender, there is none here. However, adverse impact from such offending is accepted without the extent of it quantified for this sentencing.
The Crown notes the victim's age of 16 years, visiting her mother during school holidays between school years 11 and 12. The vulnerable victim saw the material. Detection arose from the child's concern that inappropriate activity was taking place and accessed her mother's phone to confirm this.

Guilty plea - s 16A(2)(g) Crimes Act 1914

S16A(2)(g)(iii) Crimes Act 1914 requires the Court when assessing the value of the offender's plea to regard the timing of it; and the degree to which it resulted in any benefit to the community or to any victim of or witness to the offence. The court must consider the utilitarian benefit of a plea of guilty, which may also be relevant to assessment of remorse and contrition.
The Crown concedes the pleas were entered at an early stage, with utilitarian value with the cost and delay of a trial avoided, bringing finality to the proceedings. The child victim was spared the experience of giving evidence against her mother and being cross examined. The Offender should be entitled to some discount.
The strength of the prosecution case may be considered when assessing the subjective value of a guilty plea, and the Court may consider whether it was motivated by willingness to facilitate the course of justice or was recognition of the inevitable.
The Crown noted the pleas were entered in the face of a strong prosecution case.
With this I agree.
Provided the guilty plea is considered, there is no obligation to quantify the discount.
I have decided to apply a discount of 25%.

Cooperation with law enforcement agencies - s 16A(2)(h) Crimes Act 1900

The Crown concedes the offender's cooperation including several admissions in an interview with police on 1 February 2023.

Character, antecedents, age, means and physical and mental condition - s 16A(2)(m) Crimes Act 1914

The Offender was 44 years old when she offender, is not criminally recorded, though the Crown submits previous good character should be afforded less weight for offences involving child abuse material.

Specific deterrence - s 16(2)(j) Crimes Act 1914

Specific deterrence is significant in sentencing for these types of offences; prior good character carries less weight in this assessment. This links to the offender's prospects of rehabilitation and risk of reoffending.

Prospects of rehabilitation and risk of re-offending - s 16(2)(n) and s 16A(2AAA) Crimes Act 1914

Pursuant to s 16A(2AAA) the Court must take into account, in addition to any other matters, the objective of rehabilitating the person, including whether it is appropriate, when making an order, to impose any conditions about rehabilitation or treatment options; and whether it is appropriate, in determining the length of any sentence or non-parole period, to include sufficient time for the person to undertake a rehabilitation program. This is not expressed as displacing or overriding the requirement that the sentence must be of a severity appropriate in all the circumstances of the offence.
While the Court must take the requirements of s 16A(2AAA) into account where applicable in the instinctive synthesis of relevant considerations, the subsection does not permit or require a court to impose a sentence which is disproportionately severe or unjustly lenient in pursuit of the objective of rehabilitation.

Other factors taken into account - s 16A(2)(b) Crimes Act 1914

S 16BA Crimes Act 1914 enables other federal offences to be taken into account when sentencing a federal offender. The offender is not to be punished for the scheduled offence, nor is it to be regarded as an offence for which he has been convicted. The focus is to be on imposing a sentence for the principal offences. The nature and seriousness of the s 16BA offence is a relevant consideration in the assessment of the gravity of the whole course of conduct and the need for personal deterrence. This may increase the penalty imposed for the principal offence or attract a sentence of a more serious type. There is no requirement to quantify the effect.
The Crown submitted that when considering the seriousness of Charge Two, regard must be had to the possession of child abuse material offence as contained on the s16BA schedule signed by and on behalf of the parties.
I have considered the additional offence in the determination of the sentence for the second offence with a modest increase to what would have been imposed for it otherwise.

Parity

The parity principle requires that like offenders should be treated in a like manner, though allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.
Consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of the relevant legal principles. Disparity between the sentences imposed on co-offenders will be justified by differences such as age, background, criminal history, general character, and the part each has played in the relevant criminal conduct.
The Crown referred to the sentence imposed on Stewart on 22 February 2024, to which I refer when dealing with the Judge Grant's judgement.
The Crown submitted that the offender's culpability is higher than Stewart as the victim's mother. She took active steps to covertly photograph and send child abuse material to him.
I agree with this submission.

Setting the Sentence

The Crown reminded the court that where a total effective head sentence for Commonwealth offences is imposed exceeds three years, the Court must impose a single non-parole period. If the total effective head sentence is less than three years and greater than 6 months, a recognizance release order must be imposed.
The Crown submitted that an appropriate head sentence would be such that either a recognizance release order or non-parole period is available.

Aggregate sentences in Commonwealth matters

The Crown acknowledged that Director of Public Prosecutions (Cth) v Beattie is authority for the proposition that aggregate sentencing under s 53A Crimes (Sentencing Procedure) Act 1999 (NSW) is available for federal offences, that the Commonwealth Director has upon careful consideration taken the view that it is not available. This argument was advanced by the Director in the NSW Court of Criminal Appeal in McGregor v R (2021/283147). Judgment was reserved in that matter. In the circumstances, the Crown submits that the safest course in the present matter is not to impose an aggregate sentence.
I have decided to accept this submission and will order separate sentences to commence on different dates to achieve an overall sentence that will reflect the totality of the offending.

Totality

The Crown reminded the court that it is first required to consider the sentence appropriate for each offence separately and then turn to consider concurrency and accumulation and issues of totality.

Presumption of cumulation - s 19(5)-(7) Crimes Act 1914

Pursuant to s19(5) Crimes Act 1914, the legislature has imposed a presumption in favour of cumulative sentences when sentencing an offender for multiple Commonwealth child sex offences. The Crown submits that the presumption in favour of cumulation applies in this matter as the offender is to be sentenced in respect of multiple charges. While the offending arises out of a related factual matrix, the Crown submits that some level of cumulation between charges is warranted to reflect the distinct forms of offending.
I agree with this submission.

Presumption of actual imprisonment - s 20(1)(b)(ii)-(iii) Crimes Act 1914

Were the Court to disagree with the Crown's submission that immediate imprisonment is required, the offender must overcome the presumption of actual imprisonment. If a Court determines to sentence a Commonwealth child sex offender to imprisonment but release them on a recognizance release order, there is a presumption that they will serve some period of actual imprisonment unless there are exceptional circumstances that justify the offender being released immediately on a recognizance release order. This amendment is intended to ensure that child sex offenders receive sentences that reflect the serious nature of their crimes.
I have accepted that there are exceptional circumstances in this case and will impose sentences of imprisonment but order immediate release upon recognizance.
What constitutes exceptional circumstances is not defined. The introduction of the presumption confirms the position enunciated in cases, such as R v De Leeuw [2015] NSWCCA 183 at [72] relating to child pornography offences that general deterrence is of paramount importance in these matters. In considering exceptional circumstances, the court is required to assess the objective seriousness of the matter. The principles enunciated in cases such as De Leeuw assist in this determination. Whether exceptional circumstances exist will, in part depend on the objective seriousness of the conduct involved, such that the more serious the offending, the less likely exceptional circumstances will be found to justify a non-custodial sentence. A reasoning process is required to determine whether circumstances are mitigating factors to be weighed in the sentencing exercise or, are so exceptional as to warrant imposing a non-custodial sentence, in all the circumstances of an offence. This requires considering both the objective seriousness of the offending and the need for general deterrence. Given the objective seriousness of this matter any factors put forward on behalf of the offender should be considered and, if appropriate, weighed as factors of mitigation in the sentencing exercise. The Crown is unaware of any factors which would alone, or in combination, give rise to exceptional circumstances in this matter and reserves the right to make further submissions in this regard in the event that such an argument is advanced.
The Crown invited attention to R v Tootell ex parte AG [2012] QCA 273 [18] - [27] as an example of the reasoning required. At [26] -[27] the court concluded that the combination of factors identified, poor intellectual and social functioning and confession, were powerful mitigating circumstances. They were circumstances which might, in other contexts of offending, properly have been regarded as so exceptional as to warrant a non-custodial sentence, had this not been of such high objective seriousness with three distinct offences on three separate occasions against two young children, the offender in a special position of responsibility. Against that background, it was not open to his Honour to regard the mitigating circumstances as so exceptional as not to require custodial imprisonment.

Mandatory conditions to attach to recognizance release order.

If a recognizance release order is imposed, s20(1B) Crimes Act 1914 requires that a court making a recognizance release order for a child sex offender must attach certain conditions to the order. This differs from the requirements for other federal offenders who, although they must comply with the general condition to be of good behaviour, may or may not be subject to conditions.

Comparable Cases

A court sentencing for a Commonwealth offence must have regard to sentences that have been imposed in other states and territories: The Queen v Pham (2015) 256 CLR 550. The criminal justice system must be fair, and systematic fairness necessitates reasonable consistency in the application of the relevant legal principles: Wong v The Queen (2001) 207 CLR 584. per Gleeson CJ.
Comparable cases serve two purposes, first to provide guidance as to the identification and application of relevant sentencing principles., secondly, comparative sentences may yield discernible sentencing practices, and possibly a range of sentences against which to examine a proposed sentence: The Queen v Pham ibid.

Conclusion

The Crown concluded with the submission that the only appropriate sentence is one of full-time imprisonment, there are no exceptional circumstances in this case which would justify departing from the presumption of imprisonment.

Submissions on Behalf of the Offender

The offender relies upon the report of Dr Dayalan of 23 August 2024; and her letter to the court. There was no objection to the tender of Dr Dayalan's first report which was extensively replicated in the latter.
The offender accepts that the offences cumulatively engage consideration of imprisonment as an appropriate sentence, pursuant to s 16A(1) and s 17A(1) Crimes Act 1914 (Cth).
The offender notes that she abused the maternal relationship of trust with her daughter in the home. Nonetheless, the offender submits that there are features in her unusual and compelling subjective case which cumulatively amount to exceptional circumstances, and the appropriate order is for the immediate release of the offender upon a recognizance pursuant to s 20(1)(b)(iii) Crimes Act 1914.
Relevant to the nature and circumstances of the offence for the purposes of s 16A(2)(a) Crimes Act ,with reference to Minehan v R [2010] NSWCCA 140, ibid are the following points: 1. The offences were committed by the offender against her own daughter in the home. 2. An actual child was used in the creation of the material. 3. The nature and content of the material, including the age of the child and the gravity of the sexual activity portrayed. There were five photos of the victim in the shower, taken from another room through a window, and the content of the text material concerning the child described in the submissions as fictitious. 4. The child was aged 16. 5. There was no cruelty or physical harm occasioned in the covert production of the material. 6. There were five pictures of the child, exposed on the one occasion of lower seriousness that if there were more images of different children. on multiple occasions. 7. The fictitious nature of the text messages on two occasions over eight pages. 8. The material produced was for her possession with the purpose of dissemination to Stewart and not beyond. 9. The offender brought the photographic material into existence. Stewart brought into existence the text based fictitious material, but that production did not include any victim access. 10. There was limited planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating, or transmitting the material. 11. The offender was prompted by and acted in concert with Stewart. 12. There was risk of the material being seen or acquired by a vulnerable person, the child victim, who discovered the material and brought it to attention. Other than the sharing of the images, which constituted the offences, there was no significant risk of material being communicated to other potential offenders. 13. The offending was limited to two days. 14. The offences involving a real child victim were limited to five photographs taken from another room while she showered. It was the offender's intention to take the photos without the victim's knowledge, which contrasts to a case where a child victim is recruited into sexual poses, actively engaged in sexual activity, or the subject of serious sexual assaults or physical harm. 15. The child was 16 years' old, at the upper end of the age range of children. 16. The photograph quality and quantity were at the lower end of objective seriousness. I do not have access to the images, have not viewed them, and can offer no comment upon their quality. 17. The text-based offences referred to a real child and involved significant perversity, but in the nature of fantasy. Stewart generated the bulk of the material, with limited and concise encouragement by the offender. The material was generated in two conversations on two days. 18. Stewart was the instigator, and the offender acted at his behest. It was the co-offender who had a sexual interest in the victim, and the offender provided limited support to the offender in these conversations. 19. The offender refused the co-offender's multiple requests to send him a picture of the victim's vagina, but said she sent the offending photographs to the co-offender at his request. 20. The offender admitted the offending when police interviewed her. 21. In the remarks on sentence for the co-offender, the sentencing judge characterised the objective seriousness for Seq. 1 (possession of five photographs of the victim in the shower, contrary to s 474.22A(1) of the Criminal Code): low end of the range; for Seq. 9 (transmit text-based child abuse material between 17-18 December 2021, contrary to s 474.22(1) of the Criminal Code): below the midrange; and for Seq. 10 (solicit child abuse material being (unsent) photographs of the victim's vagina, contrary to s 474.22(1) of the Criminal Code): below the midrange. 22. The photograph offences (Seq. 1 and 3) are more serious than the text-based offences, as the offender herself created the photographs.
The offender committed the photograph offences against her daughter in their home, nonetheless all offences are towards the lower end of the range of objective seriousness, given their quality and quantity contrasting with the range of offences the Court commonly sees.
I agree with this submission, though as I noted I have no opportunity to offer opinion upon their quality.
The court is obliged to consider the offender's personal circumstances: s 16A(2)(d) Crimes Act and her character, antecedents, age, means and physical or mental condition: s 16A(2)(m) Crimes Act. She has a limited prior record for drink driving but this would not disentitle her to leniency. Considering her age and lack of antecedents, she is a person of prior good character.
I agree with this submission.
In DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, the Court of Criminal Appeal summarised relevant principles at [177]: 1. Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced with a reduction in the sentence; 2. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed; 3. It may mean a custodial sentence might weigh more heavily on the person, and therefore the length of the prison term or the conditions under which it is served may be reduced; 4. It might reduce or eliminate the significance of specific deterrence, e. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.
Applying these to the present matter, where a person is diagnosed with antisocial personality disorder there might be a particular need for consideration of protection of the public. In Moiler v R [2021] NSWCCA 73, the Court of Criminal Appeal said at [59] that it is well known that the assessment of the extent of a mental condition, its causative connection (if any) with offending, and any concomitant reduction in moral culpability and sentence to be imposed are all a matter for a sentencing judge. Even so, care should be taken not to take too prescriptive an approach in the process of instinctive synthesis, whereby mitigating features such as mental illness or cognitive impairment to be relevant must be shown as the direct or precipitating cause of an offence before they can operate to reduce the appropriate sentence.
The judgement speaks of material contribution to offending, not the singular or a direct cause of it.
Following her childhood sexual abuse, she reported difficulty saying no to others, had an enduring nature to please others, acquiesced in her abuser's advances, and had sexual intercourse with him. To placate schoolyard bullies, she bought things for them with money stolen from her mother. She reported anxiety from childhood, including panic attacks; and obsessive-compulsive behaviour from age nine.
Regarding the offender's childhood and her mental health counsel submitted that these matters demonstrate the offender's longstanding mental health symptoms relevant to diminution of general and specific deterrence. The offender's longstanding tendency to please others was present when she acquiesced in Stewart's text-based child abuse material and sent him the shower photographs of the victim. In this way, her mental condition materially contributed to the offences, lessening her moral culpability.
I agree with this submission.
Consequently, from her traumatic experiences she experienced in adulthood dissociative flashbacks and nightmares. She reported extreme fluctuations in mood since childhood, including depressed mood; she engaged in deliberate self-harm in her teens and made three suicide attempts. She experienced periods of elated mood with promiscuity and drug use; she felt insecure in relationships saying 'nothing goods lasts … people just throw me away'; she reported longstanding problems with sleep; she reported a pattern of 'drifting to a fantasy world' when distressed; she displayed features of bulimia nervosa from age 19; she was medicated with antidepressants for obsessive compulsive disorder aged 19, subsequently with psychiatric medication with limited compliance and mood stabilisers following a diagnosis of bipolar affective disorder in her 20's; she ceased psychiatric medication two years before the offences, and recognised this was detrimental to her mental health; and she suffered domestic violence.
Counsel submitted that this constellation demonstrates the offender's longstanding mental health symptoms, relevant to diminution of general and specific deterrence.
Around the time of the offences she recalled unstable mood, having 'lost' herself, an inability to 'identify' herself, 'completely detached from reason, logic and rationality', having 'drifted into some other world' and feelings of disassociation; she had taken some time off work due to her mental deterioration but worked in the days prior to the offences and drank heavily and smoked cannabis weekly; her sleep pattern was worse, she binged and purged and had suicidal thoughts; she engaged in sadomasochistic behaviour with Stewart to address her 'shockingly bad' self-esteem around the time of the offences, adding she 'was a mess … I was all over the place' and she was 'so confused, I didn't know how to get out of it'; she continued to feel anxious and experienced frequent panic attacks and ongoing trauma-related symptoms; and she said of the offending, she 'couldn't relate' to the person as she was who committed the offences, described the offending as like having an 'out of body experience', 'completely against' her morals, that she wouldn't dream of doing the offences in her current state of mind, and described it like being 'in a weird fantasy world', manipulated by Stewart.
Counsel submitted that these matters demonstrate that the offender's mental condition materially contributed to the offences and lessened her moral culpability. She described characteristic mental health symptoms which explain, in part, why she acted so out of character in committing the present offences.
After she was charged the offender moved from Western Australia to Victoria to be closer to her sister - she did not have stable accommodation and she drank alcohol excessively; her mental state deteriorated and she was admitted to a psychiatric inpatient unit with suicidal ideation for 3-4 months and afterward was discharged to her current accommodation; she was readmitted to a psychiatric hospital with relapse of acute suicidal thoughts and excessive alcohol consumption in May 2024; upon her more recent admission, she was medicated with antidepressants and antipsychotics and was discharged - she reported compliance with prescriptions, abstinence from alcohol and weekly attendance at drug and alcohol counselling; there was however an exacerbation of her eating disorder, characterised by excessive exercise; frequency of suicidal thoughts diminished and mood fluctuations are not as extreme; she still exhibits poor self-esteem, but sleep has improved and there were no recent panic attacks she continues to experience trauma-related symptoms and engages in compulsive behaviour such as excessive hand-washing; she was discharged from a mental health facility to supported accommodation in Geelong, Victoria.
Counsel submitted that these matters demonstrate continuation of the offender's longstanding mental health symptoms after the offence, are persistent, and remain relevant to diminution of general and specific deterrence.
Counsel noted pages 7 - 10 of Dr Dayalan's report with a significant list of collateral medical information extending back 25 years, which in respects corroborated much of the offender's self-report, and that much of the material in the Sentencing Assessment Report and Structured Case Note echo the accounts given to Dr Dayalan.
Counsel referred to the opinions of Dr Dayalan: 1. The offender experienced symptoms consistent with diagnoses of bulimia nervosa and obsessive-compulsive disorder since childhood, with related symptoms continuing during adulthood and exacerbated during periods of stress; 2. The offender has an enduring pattern of mood instability, poor impulse control, suicidal behaviour and ideation, unstable relationships, fear of abandonment and rejection and dissociative experiences; 3. The offender suffers from borderline personality disorder, predisposing her to anxiety and depressive disorders; 4. The offender described intrusive symptoms associated with early traumatic experiences and other features which were consistent with a diagnosis of complex post-traumatic stress disorder, but this diagnosis was offered as a tentative one in the absence of a longitudinal assessment by the practitioner; 5. Dr Dayalan was cautious of making a diagnosis based entirely on self-report, and resisted making a diagnosis of bipolar affective disorder; 6. While not relied on in mitigation Dr Dayalan offered a diagnosis of alcohol use disorder.
Counsel submitted that this confirmed the offender's mental condition historically and at the time of the assessment, which is relevant to diminution of general and specific deterrence.
I agree with these submissions.
Counsel noted Dr Dayalan's opinion on mental health around the time of the offences: 1. The offender suffered from borderline personality disorder and alcohol use disorder - she had been in an unstable relationship with Stewart and there was a history of extreme emotional dysregulation in the context of strain in the relationship; 2. She 'probably' suffered from a depressive disorder around the time of the offences; 3. 'Low self-esteem and a degree of self-loathing would have contributed to her submissive and degrading role in the relationship with Stewart, which 'probably' absolved her of the stress and anxiety associated with making decisions. The fear of abandonment and rejection associated with her personality disorder also influenced the dynamics in the relationship, the nature of it a key contributory factor for the offending behaviour; around the time of the offences her reasoning ability and judgement were 'probably' affected by her alcohol abuse, submissive stance, and depressive disorder.
Counsel submitted that this expert opinion sets out how the offender's mental condition materially contributed to the offences, lessening her moral culpability, the offender's acquiescent, self-loathing personality manifested in her submission to Stewart's commands and her offences.
Counsel addressed the nature of Stewart's domination in the relationship illuminated by text messages from the agreed facts: that's an order from STEWART now; I want a photo … Oh (sic) you two … Now; Your (sic) not listening to your master joanne; It was meant to be ask again IM NOT going to ask again I want a selfie of you two; Don't ever make me wait that long again; Why aren't you talking to your master; I will punish [her] if you disobey me; Are you listening to me miss Cole; and You've been warned and this is your last warning miss Cole, I hope you understand the severity of this situation.
Counsel noted Stewart's use of the term 'dungeon' at one point, and interspersed with this communication was his offer asking her if she wanted upcoming shifts at work, said to further establish the imbalance in their relationship.
While there is reference to the offender's alcohol use, which is not a mitigating factor, this does not diminish the prevalence and relevance of the offender's mental condition generally and with respect to the offences before the Court.
I agree with this submission.
Counsel addressed Dr Dayalan's opinion on impact of incarceration on the offender, and the negative impact upon her progress achieved in her present circumstances and submitted that this demonstrates the extent to which a custodial sentence will weigh more heavily on the offender, and why she ought not be subject to full-time imprisonment.
Counsel addressed history of the offender's deprived background taken from Dr Dayalan's report, including in her developmental adversities: her father's use of corporal punishment; her father's was emotional abusive, her mother's support of this and her parents' emotional detachment; her sexual abuse by a family friend around age 13 years following grooming and encouragement to drink alcohol; her sexual abuse by a chiropractor, a family friend, when age 16, and her severe bullying at high school.
I was reminded of Bugmy v The Queen (2013) 249 CLR 571, the High Court said at [40]: an offender raised in a community surrounded by alcohol abuse and violence might have in mitigation lower moral culpability than the culpability of an offender whose formative years were not so marred. These effects do not diminish over time and should be given 'full weight' in determining the sentence in every case. Such a background might leave a mark on a person throughout life and compromise the person's capacity to mature and learn from experience.
I accept there is no 'magic' in the word 'profound' used in Bugmy or any requirement to characterise an offender's childhood as one of 'profound deprivation' before social disadvantage may reduce an offender's moral culpability is engaged: Hoskins v R [2021] NSWCCA 169 at [57]. 47.
Counsel submitted that the multiple developmental adversities above demonstrate that the offender suffered a background of deprivation, which in some ways overlap with the relevance of the offender's mental condition, but nonetheless remain relevant as part of the Court's instinctive synthesis and assessment of relevant subjective factors on sentence, and, that the offender's deprived background diminishes her moral culpability and is a mitigating factor.
Counsel submitted that the offender had demonstrated to a significant degree contrition and remorse either by taking action to make reparations or in any other manner. Counsel referred to the utterances attributed to her by Dr Dayalan about how bad she felt, she thinks about her conduct every day, she was sorry, her behaviour was 'shameful' and 'disgusting'; and put her daughter in danger, that she had given her daughter a 'sentence', and could struggle with relationships as a consequence'. Dr Dayalan wrote that the offender presented as remorseful and could articulate the impact of her behaviour upon the victim. She told the author of the Sentence Assessment Report that her offending was 'horrendous' and acknowledged the long-lasting impact on the victim.
I accept this submission.
Counsel referred to the offender's letter to the Court in which she expressed remorse. She admitted the offences to police when she was arrested, which is a subjective expression of contrition.
I accept this submission.
Regarding her prospects of rehabilitation counsel noted Dr Dayalan's recommendations for future treatment, that the offender had responded favourably to current treatment, appeared motivated to rehabilitate, .and had a moderate loading of general recidivism risk factors. Counsel referred to the Corrective Services psychological structured case note and the comments upon literature from research that suggests a presumption of a 'low' risk of sexual recidivism was implied for all female sexual offenders, which counsel submits reflects the offender's very low risk of sexual reoffending.
I accept the sincerity of the offender's expressed intention to achieve rehabilitation, but whether this is possible will depend upon her continued efforts including abstinence from alcohol and continued resort to care for her mental health. Accordingly, I find that prospects of rehabilitation from submission to the inappropriate influences of others and misuse of alcohol are guarded.
Counsel noted the offender will be placed on the child protection register as a consequence of conviction. She does not have access to children. It is not appropriate that I bring this to account as a burden for the offender, but I accept it is relevant to the assessment of risk of re-offence and rehabilitation.
Counsel submits that uncommonly, her offending does not appear to be borne of sexual deviance, as opposed to in response to a controlling partner.
I accept this submission.
The substantive concern of the Court, as to whether the offender will re-offend in the way she did in the present case, is met by the submission that it is exceedingly unlikely that the offender will do so.
I accept this submission, subject to my earlier comment that her prospects are guarded in the context to which I referred.
Counsel summarised his submissions: 1. She has a limited criminal history, no history of child sex offences, committed the offences when she had the opportunity to commit them against her then juvenile only child in response to an unhealthy partner and she is now age 43. 2. Despite her lifetime of poor mental health, she has never committed offences like this. 3. In terms of rehabilitation, the offender engaged with local health services, welcomes supervision and treatment, expressed profound remorse, and currently lives in supported NDIS accommodation. Along with her age, lack of antecedents, and the unlikelihood of similar circumstances to the offences presenting themselves, the offender has good prospects of rehabilitation.
Counsel addressed the form of penalty. 1. The Court would contemplate imprisonment. 2. The offender pleaded guilty in the Local Court on 12 March 2023. The statutory discount provisions under the NSW Crimes (Sentencing Procedure) Act 1999 do not apply, nonetheless a utilitarian discount in the range of 25% is appropriate. I accept this and have adopted that discount. 3. Consistently with the Crown's submission the offender cooperated with law enforcement and made admissions during her record of interview, a mitigating factor. 4. There is little to distinguish between Stewart and the offender objectively and subjectively. It is apparent that Stewart was the motivating actor in the enterprise. He solicited a photograph of the victim's vagina from the offender, and he created and led the bulk of the text-based material. On the other hand, the offender abused a relationship of trust with her daughter by taking the photographs. 5. The offender's mental condition, in terms of general and specific deterrence, impact in custody, and as a material contribution to the offences, is profound and significantly mitigating, which distinguishes her moral culpability from that of Stewart. 6. It would open for the Court to impose a sentence of similar or lesser magnitude on this offender while avoiding any justifiable grievance on the part of Stewart who received an aggregate sentence of 24 months' imprisonment with release after serving 2 months.
Counsel argued that there were exceptional circumstances in this case justifying an order that allows the offender's immediate release: s 20(1)(b)(iii) Crimes Act with reference to R v Bredal [2024] NSWCCA 75 from which he quoted the discussions by Dhanji J and from which the following summary was advanced: 1. Exceptional circumstances are not defined, but there is guidance provided by the observations of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [1999] 2 All ER 13 at 20 where his Lordship, also in the context of sentencing legislation, said: 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. 1. They can be made out on a cumulative basis; 2. They can be made out in part from the absence of a prior record of offences; 3. The greater the objective seriousness, the more difficult it will be to make out exceptional circumstances; and 4. While a suspended sentence is significantly more lenient than a full-time sentence, a suspended sentence involves real punishment, nonetheless.
Counsel argued for the existence of the following matters as exceptional circumstances under s 20(1)(b)(iii) Crimes Act justifying immediate release given the comparable outcome for Stewart who suffered a non-release period of two months: 1. The offender is less morally culpable than her co-offender, especially noting her mental health condition; 2. The offender has a profoundly serious mental condition present since childhood; it materially contributed to the present offences; the severity of the offender's mental condition is itself 'exceptional'; 3. There is expert evidence of the peculiarly harsh impact full-time imprisonment will have on the offender; 4. The offender has a limited record of prior convictions and is a person of prior good character; 5. The offender is extremely unlikely to ever commit an offence like this again; and 6. The offender's mental health has improved following hospital admissions in the aftermath of being charged for the present offences, she has stabilised on medication and has access to NDIS-supported accommodation. 7. Noting the detrimental impact insecurity of accommodation has had on her mental health since being charged. culminating in hospital presentations, full-time imprisonment would be extremely destabilising for her mental health.
Counsel submitted that the totality of the offending is confined. The offences are of a similar nature close in time. Cumulation would not displace the appropriateness of an order under s 20(1)(b)(iii) Crimes Act, given the Court is required to impose a single recognizance release order as a component of a sentences of imprisonment for multiple offences which in the aggregate are less than three years: s 19AC(1)(c) Crimes Act.

Consideration

This is an unusual case. Objectively, although I agree with the assessment that the gravity of the offences is well below the mid-range, it is astonishing that the mother of this child would surrender to her amoral partner's sexual interest in her daughter and allow her exploitation when the child was visiting for school holidays with the approval of her father who had her primary care.
Either the offender is evil, or her conditions and circumstances described in the well documented history of her mental health have left her to fall beneath the influence of a coercive Stewart, and that to placate him she participated in the conduct with which she is charged.
On balance it is plausible that Stewart so influenced the offender that she surrendered to him and engaged in the misconduct. She might have exploited her daughter for sexual arousal that she and Stewart pursued, or she acquiesced because she wanted to perpetuate the relationship with Steward. In either case it was at her daughter's expense with the emotional damage that followed.
On the face of her representations to Steward she was willing to surrender her daughter to his amoral fantasises.
I note that in the sentence assessment report the offender's sister is said to challenge the proposition that their parents were emotionally distant and asserted that the offender deliberately distanced herself from her family. No evidence was called regarding this, and the contrast cannot be reconciled. I put it to one side. It might mean no more than this was the offender's perception of the relationships considering the history so thoroughly discussed by Dr Dayalan.
I accept the representation to the author of the sentence assessment report and Dr. Dayalan that the relationship with Stewart commenced through their mutual employment where he was in authority over her and that he initiated what occurred and pressured her to undertake her role. Her denial of a romantic relationship with the co-offender, legitimate or otherwise, is challenged though considering the sexual arousal that she said she enjoyed from this, notwithstanding there was coercion in the language by Stewart to her. He was not present when she took the pictures and engaged in the conversations with her daughter that she described to him. Her conduct was less degrading than the sexual relationship she claims she had with Stewart, but it degraded her daughter nonetheless. Nevertheless, I accept that Stewarts's behaviour toward the offender was coercive in its nature, with his sexual gratification its purpose, with the victim the subject of it, and the offender with her limited capacity to resist surrendered to him.
These propositions largely depend upon self-reporting, requiring appropriate caution as discussion in Imbornone v Regina ibid, to which I earlier referred, however considering the documented history of symptoms, care and treatment, I find these facts reasonably probable. I accept that the offender is contrite and remorseful.
I noted the use of the term fictitious applied to the text messages in which Stewart described his fantasies and in which the offender acquiesced. This term was embraced by the offender's council in his submissions. I accept that Stewart's description of the sexual encounter was a fiction, the product of his mind, but I do not overlook that it was accompanied by representations to the offender that she should approach her daughter with steps that were in the nature of grooming behaviour. Rather than fiction, it is more aptly described as his expression of desires. These fantasies were accompanied by his importuning the offender toward grooming the victim to participate in sexual activity with him or them.
The transmission of the photos of the victim taken when she showered could have been for no other purpose than to facilitate Stewart's sexual pleasure and commensurately his interest in the offender's daughter.
Judge Grant found that the offending appeared opportunistic, with Stewart describing himself embedded in a "fantasy" that was exciting to him at the time. I have another view of the matter. This might have been opportunistic in the sense that opportunity presented to Stewart upon the victim's school holiday visit to her mother, when Stewart engaged upon the evil implicit in these offences. I accept that there could be no finding that the offending involve pre-planning at a time before the child arrived, but I do not attach the epithet opportunistic to this conduct as it is described in the circumstances in which it was perpetrated in continuous pursuit over more than a day of the sexual gratification that Stewart had as his goal.
I discussed the judgement in the Stewart sentence in depth, considering that he was found to have been complicit in equal measure to this offender, who upon his version was as interested in development of the sexual relationship with her daughter as he, against the background to which his Honour applied the decision in Bugmy ibid.
I can offer no more than my observation absent the opportunity to assess the evidence which led to his Honour's findings. Given that I must decide this case upon the material before me, I accept the submissions made on behalf of the offender, well supported by the evidence of past mental health impairment considered thoroughly by Dr Dayalan, that this offender was subordinate to Stewart and acted according to his influence fearing that to do otherwise would detract from whatever their relationship offered. Her perception of the benefit of the relationship for her was perverse, but I accept that her state of mental health misled her into the egregious misbehaviour at the expense of her daughter.
I accept the submission of counsel that this is a matter in which there are exceptional circumstances which justify a sentence that will begin with the identification of an appropriate period of imprisonment, subject to her immediate release under the terms of a recognizance release order.

The Sentences and Orders

Adopting the Crown submission that there ought to be individual sentences for these offences, with appropriate cumulation to reflect the totality of the offending, my orders are:
The offender is convicted of each of the offences to which she has pleaded guilty. In respect of the offence charged as the second offence I have taken into account the additional offence before me pursuant to s 16BA Crimes Act 1914.
For the offences upon which sentence is imposed I allowed a discount of 25%. 1. For Charge One: I impose a sentence of imprisonment of 2 years commencing from 17/9/2024. 2. For Charge Two: I impose a sentence of imprisonment of 2 years 2 months commencing from 17/11/2024. 3. For Charge Three: I impose a sentence of imprisonment of 2 years commencing from 17/10/2024.
Pursuant to S 20(1)(a) and (b), Crimes Act 1914 (Cth):
I order that the offender is to be released, upon giving security, without sureties, by recognizance herself in the sum of $1,000.00: 1. To be of good behaviour for a period of three years, 2. During the period of two years: 1. be subject to the supervision of a probation officer appointed in accordance with the order; and 2. obey all reasonable directions of the probation officer; and 3. not travel interstate or overseas without the written permission of the probation officer; and 4. undertake such treatment or rehabilitation programs that the probation officer reasonably directs for the care and treatment of impaired mental health and misuse of alcohol. 1. The offender is to contact Albury Community Corrections office within seven days to arrange for her supervision.

Amendments 23 September 2024 - The original judgment was published with the Complainants name and their friends name unredacted. This version has been amended to comply with their anonymity rights. 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: 23 September 2024

Crimes (Sentencing Procedures) Act 1999(NSW)

Judiciary Act 1903(NSW)

At a glance

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Judgment (39 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (15)