R v Cook

Medium Neutral Citation: R v Cook [2025] NSWDC 201

Hearing dates: 28 March 2025

Date of orders: 28 March 2025

Decision date: 28 March 2025

Jurisdiction: Criminal

Before: Haesler SC DCJ

Decision: State matter –
Sentence of imprisonment of 9 months
Commonwealth matters –
Aggregate sentence of imprisonment of 3 years and 8 months with a non-parole period of 2 years

Catchwords: CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material — Fail to comply with child protection reporting obligations
SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — Maximum penalty — Moral culpability — Objective seriousness
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Childhood sexual abuse and trauma — Mental disorders

Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Code Act 1995 (Cth)

Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Bisiker v R [2022] NSWCCA 110
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Cobiac v Liddy (1969) HCA 26; 119 CLR 257
Hurt v The King; Delzotto v The King [2024] HCA 8
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
R v Dennison [2011] NSWCCA 114
R v McGregor [2024] NSWCCA 200

Category: Sentence

Parties: Graham Cook (the offender)
Director of Public Prosecutions (Commonwealth) (Crown)

Representation: Counsel:
D Berents (for the offender)
H Donaldson (for the Crown)
Solicitors:
Legal Aid (NSW) (for the offender)
Director of Public Prosecutions (Commonwealth) (Crown)

File Number(s): 2024/59724

JUDGMENT – ex tempore revised

Introduction

1. In 2017 Graham Cook was convicted after trial of a number of sexual assaults on two children. That offending had occurred many years earlier when Cook was in his early 20s. The children involved were about 10 years younger than him. In April 2017, I sentenced him to a term of imprisonment of 8 years and a non‑parole period of 4 and a half years. He was released to parole in October 2021.

2. As a consequence of his convictions Cook was registered as a sex offender and subject to the Child Protection (Offenders Registration) Act 2000 (NSW). The objects of the sex offender registration scheme as set out in s 2 and include, to protect children from serious harm, including physical and psychological harm caused by physical or sexual assault. Other purposes of the legislation include:

3. The deterrence of an offender from re‑offending;

4. The management of such offenders in the community with the aim of preventing re‑offending; and

5. The need to try and provide victims, their family and the community with a senses of security: see Bisiker v R [2022] NSWCCA 110 at [24] to [26].

6. On release Cook returned to the local area. He started drinking heavily. He became a carer for a relative with a health problem. The material before me, which I am prepared to accept on balance, indicates that he reduced his heavy drinking, but he then became a bit bored, and resorted to use of the internet to relieve that boredom. He created a number of accounts with usernames which would connect to Skype and Planet Romeo. By not revealing he had done so he breached his offender registration requirements.

7. Those breaches led to his arrest on 15 April 2024. Cook has been bail refused since that date. The matters that led to his arrest also led to the revocation of the parole of the sentence I imposed upon him. He will continue to serve it until 26 April 2025.

8. Following his arrest in April 2024, Cook came before the Local Court. There he accepted his guilt in relation to a number of offences; four of which are for sentence today and two of which will be taken into account on schedules pursuant to s 16BA Crimes Act 1914 (Cth).

The charges for sentence

6. The first offence for sentence, Sequence 9, is a New South Wales offence of failing to comply with his reporting obligations under s 17(1) Child Protection (Offenders Registration) Act. That offence carries a maximum penalty of 5 years imprisonment.

7. There are three Commonwealth matters for sentence.

8. Sequence 6 – That between 11 February 2024 and 13 February 2024 he did transmit material using a carriage service, being child abuse material: Criminal Code Act 1995 (Cth), s 474.22(1).

9. Sequence 7 – Between 23 June 2020 and February 2024 did possess or control material being child abuse material in the form of data contained in a data storage device: Criminal Code: s 474.22(A)(1).

10. Sequence 8 – That between 6 November 2023 and 11 January 2024 did transmit material using a carriage service, the material being child abuse material: Criminal Code: s 474.22(1).

The Schedule

11. When I sentence Cook for Sequence 6, he asks that I take into account an offence, Sequence 5, a charge pursuant to s 474.22(1) of the Criminal Code, that between 6 January 2024 and 9 January 2024 he did access material using a carriage service, the material being child abuse material.

12. When I sentence him for Sequence 8, he asks that I take into account the offence, Sequence 9, pursuant to 474.22(1) Criminal Code, on or about 6 November solicited material using a carriage service, the material being child abuse material.

13. I must take into account these matters, when I sentence for Sequences 6 and 8, on the Schedule but I do not sentence for those matters. They enable me to increase the otherwise appropriate sentence to take into account personal deterrence and community protection. The guideline judgment of New South Wales Court of Appeal sets out the relevant principles: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146; Abbas, Bodiotis*, Taleb and Amoun v R* [2013] NSWCCA 115. They also apply to Commonwealth matters: R v Dennison [2011] NSWCCA 114.

Maximum and minimum penalties

14. Each of the Commonwealth matters and the matters on the schedule have maximum penalties of 15 years imprisonment and the Federal Parliament has set a mandatory minimum penalty of 4 years imprisonment. I repeat, the maximum penalty is 15 years imprisonment and Federal Parliament has fixed a mandatory minimum period of imprisonment of 4 years. It is important that the public and the offender understand that that maximum and that minimum are designed to send a message not just to judges but to the community, how seriously on behalf of the community, Parliament views offences of the type now before the Court.

15. When I formulate an appropriate sentence, I must take into account the maximum penalty and where applicable a mandatory minimum. They are important guides to the exercise of my sentencing discretion. Mandatory minimum penalties are a fetter on a judge’s sentencing discretion. It was once said, “… a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice”: Cobiac v Liddy (1969) HCA 26; 119 CLR 257 at [269] (Windeyer J).

16. But Parliament can, and have here, closed off some of the options the Common Law gives judges to individualise sentences. I am obliged to apply the law. The proper approach to mandatory minimum sentences in s 16AA(b) Crimes Act 1914 was set out by the High Court in Hurt v The King; Delzotto v The King [2024] HCA 8.

17. Subject to the exceptions in 16AA(c) Crimes Act 1914 (Cth), I cannot impose a sentence less than the statutory minimum. As I have said, both the maximum and minimum are measures that must be considered when exercising what discretion I have left to determine the appropriate sentence. The maximum and minimums, I repeat, convey Parliament’s view of the relative seriousness of the offence, but every offence and every offender, subject to those constraints, requires individualised treatment.

18. I am satisfied for both the State and Commonwealth offences that custodial sentences are required. I have considered s 17A Crimes Act 1914. I note that no submission to the contrary was put before me.

19. Because I am considering both State and Commonwealth offences and different sentencing regimes apply, I have to consider both the Crimes (Sentencing Procedure) Act 1999 (NSW) and its objects, and the Crimes Act 1914 and its objects. In many respects the fundamental principles are the same but there are important and separate considerations that have to be taken into account.

Guilty plea

20. I must reduce the State’s sentence exactly by 25% to reflect the utilitarian value of the plea of guilty: Crimes (Sentencing Procedure) Act, s 25D.

21. I must take into account the timing of the plea and associated benefits when considering the Commonwealth matters. In that regard, I note the plea showed some facilitation of the course of justice and is some evidence of contrition: Crimes Act 1914, ss 16A(2)(g) and (f). There was also considerable utilitarian value in the plea. Although it came in the face of a relatively strong prosecution case, it requires appropriate consideration. I believe it is appropriate, and it is not argued to the contrary, that I should allow 25% for the plea and the acceptance of responsibility inherent in it. I will reduce each available sentence by 25%: Xiao v R [2018] NSWCCA 4; (2018) 96 NSWLR 1.

22. Cook also showed co‑operation with the police by giving them his usernames and passwords on arrest. Although if he had refused, he could have been compelled to do so: Crimes Act 1914, s 3LA. That co‑operation has to be taken into account generally, and also in particular, when I come to consider the mandatory minimum provisions: Crimes Act 1914, s 16AA(4).

Agreed Facts

23. All sentencing matters start with a consideration of what was done and a consideration of the seriousness of what was done. So much is clear from State sentencing principles and is made absolutely clear by s 16A(1) Crimes Act 1914.

24. There are Agreed Facts before the Court. I am indebted to the Commonwealth Director of Public Prosecutions for providing an executive summary which I will read onto the record. Although there are particulars provided to which I will later refer, is a fair summary and accepted as a fair summary of what Cook did.

25. Cook was born in 1962. Between 6 November 2023 and 5 February 2024, Cook engaged in online communications with a user called “Jacob”, someone he believed to be under 16 years of age, during the course of which the offender described sexual activity between himself and Jacob, and prior sexual encounters he had had with other underage persons, as well as transmission of an image.

26. I correct the Agreed Facts, one in particular being a sexual act between children presumed to be between 14 and 18 years of age. That is Sequence 8. The particulars of that photograph are set out at page 9 of 15 of the Agreed Facts at point 1. The offender also solicited images of the young person’s penis during these communications: Sequence 9.

27. An additional matter, which is charged as Sequence 5, relates to online communications with a user called “Jason Caldwell” between 6 January 2024 and 9 January 2024, during the course of which the child accessed child abuse material in the form of messages from Jason Caldwell describing sexual activity with a child. Detailed particulars reveal that the offender and Caldwell both, while both adults, discussed what they would like to do to of a sexual nature to an 11 year old child.

28. Sequence 6 involved the offender engaging in online communications between 11 February 2024 and 13 February 2024 with a user called “don22”. During the course of which the offender transmitted child abuse material in the form of messages describing sexual activity with a child. This communication in written form and what appears to be a description of a fantasy event, but apart from the age of the child it did not bear a resemblance to the matter for which he served his sentence: Sequence 7.

29. A search warrant was issued on the date of arrest. Police found a USB stick. In it were videos depicting child abuse material. It appears he had been in possession of that material between January 2008 until its seizure: Sequence 7. I was not required to view that material, but it is accepted to be an appropriate summary of the recordings. To repeat what is written there would be to publish child abuse material, and I will not do so. But the descriptions note explicit videos or images involving of young children engaged in masturbation or sexual activity with others.

30. All of the material, in particular his failure to report his use of the account and usernames that he was using, involved a failure to comply with his reporting obligations; the State offence: Sequence 3.

Objective seriousness

31. The offender was on the Offender Register. As I said, the Register was there to try and protect the community, and protect him, from committing further offences. He breached his obligations and each of the offences occurred in breach of those obligations, a matter that must aggravate the objective seriousness of the matters before me.

32. Individually each crime was different.

Sequence 7

33. I go first to Sequence 7, the material on the USB stick.

34. There is no information before me, other than it was created, some time ago, when and how and if the offender accessed that material. The material itself involved real children; young boys involved in graphic sexual acts. Possession of that material is a callous and predatory crime. Such material cannot come into existence without the exploitation and abuse of children somewhere in the world. Often children in underdeveloped or disadvantaged countries are recruited or taken to produce such material. It is presumed and expected that damage will be done to those children, and that damage can be profound.

35. People who possess that material exploit and abuse the children who are used to make it and every time someone watches it, they would be confronted with the pictorial evidence of that exploitation, abuse and degradation. To possess that material is thus a serious crime because it feeds the market for the production of such material.

36. That said, there were not many videos. There is no evidence when they were downloaded. There was no reason for Mr Cook to keep them, no reason at all, and to do so was a crime and in breach of his obligation to keep to the law meant to be enforced by his registration.

37. I keep referring to the registration offence, but I caution myself each time that I do not double count or triple count such matters because he has been punished for that breach. I will take care not to give it excessive weight.

Sequence 8

38. Sequence 8 and the schedule matter refer to a conversation with a person who purported to be a young boy, “Jacob”. We do not know whether “Jacob” was or was not a young person, he certainly pretended to be. The offender said, “Well he was on an adult site, I presumed he was pretending”. No one should make that assumption. Children, sadly, do have access to adult sites. The laws that he has breached are designed to protect children because they are presumed to be immature, but they may be adventurous when it comes to accessing the internet; children may be exposed to the sort of conversations that are detailed in the facts before me.

39. The matter for sentence involves Cook transmitting the image set out on page 9 of the report to which I have earlier referred. It is an offence to send such an image using the internet. The context cannot be ignored, the context was a presumed conversation with a young, impressionable child. I do not need the guidance of the minimum term to conclude that that is a particularly serious offence, and in context, would require a custodial sentence. I will come to the question of relativities later.

Sequence 6

40. Sequence 6 involved the transmission of material that involved a fantasy description of sexual activity with a child. That it was a fantasy is not a defence, nor does it substantially mitigate a matter such as this, that what was being described and discussed during the online communication involved two adults fantasising about sex with a child. Such conversations are directed to perpetuating a myth, or false truth, that somehow sex with children is normal or harmless. As this offender knows from his own history that is a lie. Children are harmed by premature sexual activity, that cannot be denied. But any conversation between adults as part of online communications that perpetuates a belief that sex with children is somehow okay, is a very serious crime in itself.

41. This Court has to deal with many matters pursuant to the Criminal Code, provisions now before me. The Court has to compare and contrast matters in terms of relative seriousness. The very helpful written submissions before me were phrased slightly differently but to adopt the words of the Chief Justice in Hurt it is not suggested by the description that they fall into the “least worst” possible cases that deserve imprisonment: at [28].

42. In terms of the images, while each was gross there were not many of them and they do not appear to have been repeatedly used or part of a large scale collection, as is often the case. So far as the transmission of one image is concerned, it was gross, and it was one image. The conversation while serious, was just a conversation and it did not involve real children.

The case for the offender

43. When I sentenced the offender in 2017, I had the benefit of a comprehensive psychological report and material as to Cook’s background. Although none of the evidence was supported by evidence on oath from the offender then or now, the reports from 2017 are consistent with the reports of Ms Duffy and Ms Lazos that I have now before me as Exhibits 1 and 2.

44. The offender’s background is relatively uncontroversial. He grew up in the local area. He had what is described as a “harsh life”, his father was overly strict and subjected him to regular corporal punishment. His mother left the family home for entirely understandable reasons, but that led to a sense of abandonment in the young boy, now the man now for sentence. His father suicided when he was a teenager but by then he had left school and obtained a job. He worked up until he was arrested for the 2017 matters in various jobs in the local community. When he was in custody, he was able to obtain work, and I understand he is in work at the moment. In the community he was a carer for a relative.

45. There is, in the reports, material to indicate that when he was a teenager, he was subject to sexual abuse. And that, and other material that I am prepared to accept on balance, give me some understanding of why he should not be treated in the same way as a person who was not so abused.

46. There is a history of anxiety and depression and other matters going to his mental health, there is the harshness of his childhood, and neglect and abuse as a child, all would operate to reduce the otherwise appropriate sentence. He should not be sentenced with the same emphasis on general deterrence as a person who did not have that background.

47. That said, and despite his background, he offended against children. He has again shown attitudes conducive to offending against children. And in fact, because of the possession child abuse material, he offended against the children depicted. He does not appear to have learnt the lesson that his four and a half years in custody was meant to convey to him – obedience to law, and that a breach of the law will have significant consequences. Obviously, a gaol sentence is meant to deter him, and I am sure he will be much more careful in the future.

48. As Mr Berents, his counsel, points out, he is a man who, as Ms Duffy and Ms Lazos and the psychologists in the earlier proceedings indicate, is in need of psychological help to deal with a significant number of underlying problems, particularly in coming to grips with the abuse he suffered as a child.

49. He did not qualify for sex offender programs during his last time in custody, and what programs may have been available to him were not in fact made available to him. When he was released to parole, he attended the psychologist sessions that he was directed to attend, but it is clear, as Ms Duffy makes clear, he still requires assistance. It is unlikely he will get that necessary assistance in custody. One reason is that his offending is not of the level that justifies it; there are offenders serving sentences for far more serious crimes who would have priority access to what limited programs are available.

“Dynamic risk factors … includ[ing] intimacy deficits … loneliness; negative emotions such as depression; possible deviant sexual interests, sex as coping; and poor cooperation with supervision, given that the index offences occurred while he was on parole.”

51. There are however some protective factors; Cook has not committed contact sex offences since his early 20s, he has engaged in long term adult relationships, he has held regular employment, he was able to cease alcohol use, and he was able to care, and he has participated in, community activities.

52. But she also notes that Cook’s “deviant sexual interests … need to be explored”. He must be assessed by Corrective Services to see if there is a program available for him. Although he is awkward about attending their group sessions it would be to his advantage to do so, because he must first qualify for parole before he can engage in whatever programs are offered to him in the community. “He needs to work”, she says at par 64, “on understanding and changing attitudes [in his] thinking that led to his behaviour as well as developing better coping and self-management skills”, and she recommends further psychology and other programs. A copy of Ms Duffy’s report and Ms Lazos' report will be sent to Corrections.

53. Ms Laslow in her report repeats and emphasises the matters in Ms Duffy’s report. She notes at par 11.3 that “the impact of child sexual abuse can be profound, effecting a person’s emotional, behavioural and social wellbeing across their lifespan”. A point made generally in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 where the High Court also noted that a person’s background may have impacts that do not diminish over time. Those observations are reflected in the material presently before the Court.

54. I am obliged and will take into account that background. I also have to consider Cook’s prospects for rehabilitation. That consideration goes to my formulation of the appropriate sentence and also the structure of the sentence. Those matters are paramount because when I granted the offender parole on the last occasion it was my intention that he would utilise his time on parole to his advantage and not commit further offences. I do not punish him for breaching his parole or coming back before this Court, although I do, as an aggravating circumstance, take into account he breached his parole and breached the promise he obviously made to himself and the State Parole Authority not to reoffend. But that is a matter I take into account in the appropriate way, I do not take it personally, Mr Cook. It does not preclude me from allowing for a significant period of supervised release, should he quality for release, pursuant to Crimes Act 1914, s 19AL.

Synthesis

55. Cook’s supervision, particularly when he was seeing the psychologist, may have worked, although he did still keep the USB stick and not destroy it as he should have. But instead of going back to his parole officer seeking help, when he was bored, he went online, and he is now before the Court, and now back in gaol.

56. There are four matters for sentence. A separate sentence must be imposed for the State matter. I also have to consider the breach of parole. Although I have taken that matter into account generally as an aggravating circumstance, as I must, in my view there should be some independent punishment for the breach of parole that he is serving at the moment. I propose to start this sentence three months after he went into custody to reflect those considerations, taking care that I not double count that matter.

57. In relation to the State matter, it was a serious offence; it required a custodial sentence. I will fix a sentence that will reflect my notion of the minimum term that must be spent in custody for that matter. There is no utility imposing a sentence with a parole period because any parole period would be subsumed by the Commonwealth sentence. The sentence will reflect the 25% reduction for the utilitarian value of his guilty plea.

58. In relation to the Commonwealth sentences, I will of course take into account the matters on the schedule where relevant in accordance with the guideline and other authorities. In relation to each of those matters, while they differ, in terms of relative seriousness I could not make any differentiation between them, they were, as I said, matters that fall within the least worst possible category that deserves imprisonment.

59. When I formulate sentences for those matters, taking into account all relevant matters, I must synthesise appropriate sentences for each. I must then make a reduction of 25% for all the aspects of the guilty plea, this staged approach to sentencing is allowed: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.

60. Cook did also provide the passcodes and names of accounts. That matter requires some additional reduction in the otherwise appropriate sentences. But in my view in all the circumstances, and to avoid double counting matters, a 2% reduction is all that is required. Sentencing is not meant to be require the application of algorithms or strict mathematical calculation.

Orders

61. Taking into account the need to apply adequate punishment for his crimes and giving full weight to the matters in mitigation before me, I formulated the following orders.

62. In relation to each matter there is a conviction. In relation to the State offence, the breach, there will be a sentence of 9 months imprisonment. That sentence will commence on 16 May 2024.

63. In relation to the other matters, I will impose an aggregate sentence: R v McGregor [2024] NSWCCA 200. That sentence will commence on 16 August 2024 which is six months after he went into custody and three months after the commencement of the State offence.

64. In relation to each matter for sentence I indicate a sentence of 2 years and 11 months. My staring point was 4 years, less 27%, rounded by a day for exact transparency.

65. The aggregate sentence will be one of 3 years and 8 months imprisonment. There will be a non-parole period of 2 years. The sentence commences on 16 August 2024. Cook will be released to parole subject to s 19AL Crimes Act 1914 on 15 August 2026. There will be a parole period of 1 year and 8 months from that date. The sentence will end on 15 April 2028. To repeat; 3 years, 8 months, 2 years, non-parole period.

66. The total effective sentence is one of 4 years and 2 months. The effective non-parole period is 60% – that is my intention. What that means is that Cook will be, if he has been of good behaviour throughout the sentences, be released on 15 August next year. He will be on parole for 1 year and 8 months. With backdating the total effective sentence is 4 years and 2 months with a 2 year, 6 month effective non‑parole period.

67. There is a forfeiture order for the USB stick and the computers. There being no objection I will endorse those orders, and a copy will be sent to the parties.

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