R v Coomber

Sentencing for federal and state offences

1. For Commonwealth offences, the Court must impose a sentence 'that is of a severity appropriate in all the circumstances of the offence'. The Court is to take into account the matters listed in s 16A(2) of the Crimes Act to the extent that they are relevant and known to the Court. The Court can only sentence an offender to imprisonment if it is satisfied that no other sentence is appropriate in all the circumstances of the case: s 17A(1) Crimes Act.
2. For NSW offences, the Court is required to have regard to the purposes set out in s 3A of the Crimes (Sentence Procedure) Act 1999 (NSW) ("CSPA"). The particular aggravating and mitigating factors that a sentencing Court is to consider are set out in ss 21A(2) and 21A(3) of the CSPA, respectively. The Court may only impose a sentence of imprisonment if it is satisfied that no other alternative penalty is appropriate: s 5 CSPA.

Section 16BA Crimes Act

1. Whilst the primary focus remains on the offences for sentence, it is proper for the Court to have regard to the s 16BA matter for the purposes of considering if it justifies giving greater weight to the need for specific deterrence and the community's entitlement to exact retribution.

Nature and Circumstances of the Offending: s 16A(2)(a)

1. The objective seriousness of offending involving child abuse material is ordinarily determined by reference to the well-known factors set out in R v Hutchison [2018] NSWCCA 152 at [45].
2. A summary of the facts, which are agreed between the parties, is as follows: 1. Between about 23 June 2020 and about 30 January 2023, the Offender possessed 21 videos and 137 images constituting child abuse material on his mobile phone (sequence 3). 2. On 30 January 2023, the Offender came into Australia by plane with his mobile phone on him and thus imported 21 videos and 137 images constituting child abuse material (s 16BA). 3. On 31 January 2023, the Offender possessed 676 images and 98 videos constituting child abuse material (sequence 1). 4. The material depicted sexual intercourse and sexual acts involving real children, aged between the ages of 2 and 16, in conjunction with adults or other children under the age of 16, as well as some depicting clothed and unclothed children sexually posing. 5. The child abuse material videos ranged in duration from 8 seconds to 18 minutes and 18 seconds. 6. The method of obtaining the material was deliberate.
3. The Crown submits that, having regard to the above factors, the offending for sequence 3 and sequence 1 is objectively serious, falling at the lower end of the mid-range of objective seriousness for offences of this kind. The s 16BA matter concerns the same material and totally overlaps with sequence 3. It falls into the same level of objective seriousness as sequence 3.
4. The Offender's submission as to sequences 1 and 3 can be summarised as follows: 1. It is accepted that actual children are depicted. 2. The Offender submits that the cruelty and physical harm factor applies only if the evidence clearly establishes harm in addition to the harm and humiliation of the sexual acts themselves. In this case there are a limited number of the files described that are relevant to this factor. One file depicts a child who is restrained. A portion of another file depicts blood around a child's genitalia and a third file contains a portion of video where a child is performing oral sex on an animal. This is a small number of files in comparison to the whole. 3. The number of files is relatively limited (158). 4. There is material relating to at least 10 different children. This is a relatively small number of individuals in comparison to many matters. 5. There is no evidence of any payment or profit. 6. The Offender's actions were not proximate to those responsible for bringing the material into existence. 7. There was no planning behind this offence. The Offender just used normal functions available on his phone to obtain and store the material. 8. The Offender did not use any sophisticated passwords or encrypted files to hide the material.
5. The Offender has submitted that, on a proper consideration of all the relevant factors in relation to offences of this kind, the objective seriousness of the sequence 1 and 3 offending is well within the low range for offending of this type.

Sequences 1 and 3

1. I reject the Offender's characterisation. In my view, the offending as to both the sequence 1 and 3 matters is serious. Real children are involved and there is cruelty and depravity demonstrated, more so in the sequence 3 material.
2. The simple fact is that a number of the images, the subject of sequence 3, show sexual interaction between adults and children. One of them appears to show blood around the child's genitals and one shows a child being restrained. Finally, there is one showing a child performing oral sex on an animal. To characterise such material as 'not involving cruelty and harm over and above the assumed harm and humiliation of the sexual acts themselves', and the fact that they were recorded, must be rejected.
3. It is true that the number of images is not great, but as the authorities have repeatedly stated, it is the content rather than the quantity where real focus needs to be shown. It is also true that the level of planning and sophistication is very low.
4. I prefer to avoid trying to use and apply labels such as "mid-range" et cetera. Suffice to say, I consider the offending to be serious, even in the context of other potential offences of this type. The sequence 1 material is less serious than the sequence 3 material. Doing the best I can, I prefer the Crown's characterisation as to the sequence 1 and 3 matters, that it falls somewhere in the mid-range of seriousness, perhaps below the actual middle of the range. As far as the s 16BA matter is concerned, I place that offending somewhere towards the lower end of the range.

Section 16BA

1. The Crown submits that the admitted offending warrants a modest increase in the otherwise appropriate sentence to be imposed for the offence for which the Offender is to be sentenced.
2. The Offender submits that, in the context of this case, any increase to the sentence to be imposed for sequence 3 ought be minimal. This is because the material imported is the same material that is the subject of sequence 3. The storage device on which the material was possessed is the Offender's mobile phone. The additional criminality of importing the material, as opposed to possessing it, on such an item is limited, if not illusory.

Resolution

1. I consider, in the circumstances, that the "upward pressure" on the sequence 3 offence as a consequence of the s 16BA matter ought be minimal.

The personal circumstances of any victim of the offence: s 16A(2)(d) Crimes Act; Any injury, loss or damage resulting from the offence; s 16A(2)(e) Crimes Act

1. The child abuse material possessed by the Offender depicted real children being sexually abused and exploited. There is an intrinsic harm caused by the creation of child abuse material: R v Clarkson [2011] VSCA 157.
2. It is an inescapable conclusion that significant physical, emotional, and psychological harm was inflicted upon the children depicted in the material.

Contrition, guilty plea, and degree of cooperation: ss 16A(2)(f), (g) & (h) Crimes Act; ss 21A(3)(i), 21A(3)(k) and s 25D CSPA

1. For the State offence, the Offender is entitled to a discount of 25% for the utilitarian value of his early guilty plea.
2. For the Commonwealth offence, the Court must take into account the fact and timing of the guilty plea, and the degree to which the fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence. In so doing, it is to be remembered that the NSW mandatory discounts do not apply. The plea needs to be considered for its utilitarian value as well as potential evidence of subjective remorse and contrition. The strength of the Crown case is a relevant factor.
3. The Crown accepts that the Offender's plea to the Commonwealth offence was entered at an early opportunity and that the Offender is entitled to a discount for the utilitarian value of his plea.
4. The Crown accepts that the Offender's pleas reflect acceptance of responsibility and a willingness to facilitate the course of justice. However, the Crown submits that it should be seen as 'recognition of the inevitable'.
5. It is conceded by the Crown that the Offender, by providing passwords to his device, assisted Police to access them more readily and investigate his offences. The Offender also cooperated with authorities through the participation in an interview, during which admissions were made. It was that cooperation and those admissions that caused the Crown case to be so strong.
6. The Offender submits that, over and above the fact of the guilty pleas, contrition for his offending can be seen in the following: 1. The Offender has disclosed his offending to his family and close friends. He has expressed to them how he feels about his offending behaviour. They have assessed that his remorse for his offending is genuine. 2. The Offender has said in an affidavit that he is "sorry that I encouraged the actual trauma that children like these go through, and it must be horrible for these children to know that these images and videos are out there...". He also gave evidence to that effect before me, he was challenged in cross-examination, but I accept his evidence. 3. The Offender provided assistance to the NSW Police by making admissions, providing the PINs and passwords to his devices, and identifying the location of the material on the devices.

Resolution

1. I do not see any reason why the Offender ought not be afforded a 25% discount for the utilitarian value of his plea as to the Commonwealth matters, as he is entitled to for the state matter.
2. Taking all the evidence into account, I am satisfied that the Offender is generally remorseful and contrite as to the offending. I also accept that he is committed to not doing it again and to a program of rehabilitation which he has already embarked on, so far successfully.

Deterrence and Adequate Punishment: ss 16A(2)(ja), 16A(2)(j) & s 16A(2)(k) Crimes Act; ss 3A(1) and 3A(1)(b) CSPA

1. General deterrence is a significant consideration for obvious reasons. This type of offending is abhorrent, depraved, entirely unacceptable, and does real damage to real children. The sentence to be imposed upon the Offender must make clear to other likeminded people within the community that these types of offences will be met with condign punishment.
2. Specific deterrence is also a matter of significance in this sentencing exercise given that the Offender must be adequately punished for the offences, because punishment is in itself a purpose of sentencing under each of the State and Federal regimes, and to deter him from returning to offending of this nature, and because inadequate punishment would tend to undermine other purposes of sentencing such as accountability, deterrence, and denunciation.
3. Having said that, I have come to the conclusion that the effect of being caught, charged, and being before the Court for sentencing has had as much specific deterrence on this Offender as can be reasonably expected. I accept that he is now committed to not re-offending.

Character, Antecedents, Age, Physical or Mental Condition of the Offender: s 16A(2)(m); s 21A(3)(e)- (f), (j) Crimes Act

1. The Offender is 34 years old. He has a full-time job in sales. There is no diagnosed mental health issue here. Nor is there any suggestion of an overly deprived childhood. The Offender's pathway to offending appears to be that outlined in the report of Patrick Sheehan dated 28 March 2024. it does not suggest that the Offender's offending grew out of any mental impairment.
2. What seems to have happened is that, over time, the Offender became more and more preoccupied with online sexual activity, and overexposed to mainstream sexual themes. This then led him to the gradual pursuit of novel or taboo sexual stimulus to achieve excitement and exhilaration, including BDSM, fetish, et cetera. He came to conflate nonsexual themes (gaming, et cetera) with sexual interests. At the time of the offending, the Offender's subjective perception of wrongdoing was reduced because he had distorted beliefs that he was viewing material already posted online, not creating it, and therefore not contributing to harm.
3. At the risk of oversimplifying things, it seems to me that the Offender became obsessed with online pornography and kept looking for more and more "exciting" material, which ultimately led him to child abuse material. The description contained in Mr Sheehan's report has, to my mind, all the hallmarks of an addiction, with ultimately the Offender becoming addicted to online pornography and requiring more and more extreme material to obtain the same level of excitement.
4. There is no diagnosis of any medically known syndrome, but I think the above at least provides an understandable explanation, albeit not an excuse, for the conduct, which is very important when I come to the question of rehabilitation.
5. The references tendered on behalf of the Offender attest to his character. For instance, he is described as person who has "been there" for a friend through "many ups and down including sever(sic) sickness, loss of jobs..." and as "a role model staff member. He mentored new employees ... taking the time to teach others...".
6. The Offender has no prior criminal history.
7. Even though no underlying disorder has been diagnosed, the Offender is motivated to engage in treatment. Mr Sheehan opines that: "Mr Coomber is participating effortfully in the treatment process, and has made advances in his understanding of his behaviour and planning to adjust the aspects of his life that have pre-disposed him to sexually offending".
8. I was intrigued during the course of argument as to the concept of treatment in circumstances where it is not suggested that he suffers from any diagnosable medical condition.
9. However, I accept that there is something in the personality of the Offender which lead him to be "sucked down a rabbit hole" of more and more extreme pornography online, which aspects of his personality have led him to something akin to addiction, which can be, and is being, successfully treated by Mr Sheehan.
10. I am comfortably satisfied that the treatment strategy being employed by Mr Sheehan is being enthusiastically adopted and diligently applied by the Offender, and so far, he is having success.
11. This finding becomes important when I come to the question of prospects of rehabilitation.

Prospects of rehabilitation and likelihood of reoffending: ss 16A(2)(n) and 16A(2AAA) Crimes Act; s 21A(3)(g) and (h) CSPA

1. As to the Offender's prospects of rehabilitation, it was observed in R v Porte [2015] NSWCCA 174 at [71] that "a common feature on sentence for this class of offence is the tender of material (and often substantial material) concerning steps taken with respect to counselling and treatment in aid of rehabilitation." Whilst such steps taken are important, "undue focus should not be placed upon it at the expense of other legitimate and important sentencing considerations including denunciation and general deterrence."
2. I am satisfied that the treatment plan the Offender is currently undergoing has been successful to date and, if he continues on the path he is on, will continue to bear fruit. I have concluded that his prospects of being successfully rehabilitated are very good and, correspondingly, the likelihood of him re-offending is low.
3. Protection of the community is an important and weighty factor to be taken into account on the sentencing exercise. I am satisfied that, if the Offender can be rehabilitated, then the community will be protected from ongoing offending by him.
4. My reasons for concluding that he has very good prospects of rehabilitation include: 1. He has demonstrated his commitment to his rehabilitation by actively engaging in his treatment to continue to develop insight into his offending and specific strategies to prevent him doing it again. 2. His treatment to date has proved successful. 3. He has an excellent work history. He has a full-time job. He has the capacity to support himself in the community. He has strong family and community connections. 4. He has been specifically deterred from engaging in further offending by the experience of his first period of time in custody and this court process. 5. As a consequence of his convictions, he will be subject to the Child Protection (Offender Registration) Act 2000 (NSW) and will have extensive reporting obligations as articulated in s 9 of that Act for a period of 8 years. This will be a constant reminder of his need to maintain a pro-social lifestyle.

Resolution

1. I consider that the Offender has very good prospects of rehabilitation and a low prospect of reoffending.

Object of Rehabilitation (s 16A(2AAA) Crimes Act)

1. Pursuant to s 16A(2AAA) of the Crimes Act, the Court, in sentencing an offender for a Commonwealth child sex offence, must have regard to the objective of rehabilitating the person, including considering whether it is appropriate or required to impose conditions about rehabilitation or treatment options (when making an order) and in determining the length of any sentence or non-parole period to include sufficient time for the person to undertake rehabilitation such as the completion of a custodial sex offender treatment programs.
2. The objective of rehabilitation, however, does not displace the requirement that the sentence must be of a "severity appropriate in all the circumstances of the offence" (s 16A(1)). That is, while the requirements of s 16A(2AAA) must be taken into account, the objective of rehabilitation should not override other very important sentencing considerations such as general and specific deterrence and adequate punishment. The principal purpose of rehabilitation in the present case is to protect the community by ensuring the Offender is required to undertake treatment in custody or upon release from custody to prevent reoffending.
3. The Offender has submitted, and I accept, that there is a real risk that he will not be eligible for Sex Offender Programs in custody.
4. Mr Sheehan believes that the Offender is not likely to be eligible for the available in custody programs because the Corrective Services NSW policy is to only offer programs to medium to high-risk offenders and he is not considered such an offender:
5. Mr Sheehan will not be able to continue his treatment of the Offender if he is in custody.
6. What all that means is that any period in actual custody will directly decrease his prospects of rehabilitation and increase his chances of reoffending and thus increase the damage to the community.

Time in custody

1. The Offender has spent 16 days in custody (15 days in relation to the Commonwealth offences and 1 day in relation to the State offence). Any sentence of imprisonment will account for that time.

Separate sentence

1. The Court must impose separate sentences for the Commonwealth and State offences.

Presumption of actual imprisonment

1. Sequence 3 is a "Commonwealth child sex offence" as defined in s 3 of the Crimes Act. Section 20(1)(b)(ii) of the Crimes Act. If a Court determines to sentence a person convicted of a Commonwealth child sex offence to imprisonment but releases them on a Recognizance Release Order, there is a presumption of some period of actual imprisonment, unless there are "exceptional circumstances" that justify immediate release.
2. This provision applies in circumstances where the s 17A threshold is crossed, but the term of the sentence falls below that which would require the imposition of a non-parole period (being more than 3 years).
3. As to "exceptional circumstances" in the context of this provision, Dhanji J stated in R v Bredal [2024] NSWCCA 75 ("Bredal") that "the term 'exceptional' means circumstances to be sufficiently 'exceptional' such that, despite a period of imprisonment being required, the offender should not be required to serve any part of that sentence in actual custody." A combination of factors - each of which may not be exceptional of themselves - may in combination demonstrate the case to be an exceptional one: see also Crowder (a pseudonym) v The King [2024] VSCA 211 at [67].
4. If a Recognizance Release Order pursuant to s 20(1)(b) of the Crimes Act is ordered, the Court must impose 4 mandatory conditions, together with any other conditions the Court considers appropriate.

The parties' ultimate submissions

1. Having regard to the objective seriousness of the offences, the seriousness of the nature and circumstances of the offending, and the weight to be given to general deterrence, the Crown submits that no ultimate sentence other than an immediate term of actual imprisonment is appropriate. This is because the Crown contends that exceptional circumstances have not been shown.
2. The Offender accepts that in relation to sequence 3 a sentence of imprisonment is inevitable, but in the circumstances of this case an appropriately severe sentence is imprisonment for 12 months with release forthwith on a two-year conditional recognizance on strict conditions. Such a sentence will appropriately reflect the objective seriousness of the offending and the Offender's need for further supervision to further entrench his rehabilitation.
3. It is further submitted by the Offender that the threshold in s5(1) of the CSPA is not crossed in relation to the State Offence especially because of the nature of the images - no sexual activity, instead clothed sexual posing - the relatively limited number of images and the time period of the offending - charged as on or about a single day. An appropriately severe sentence is a Community Corrections Order for a period of two to three years.

Resolution as to the Commonwealth offence

1. It is common ground that no sentence other than a term of imprisonment is appropriate.
2. The real question is whether there are "exceptional circumstances", so as to enliven a discretion to order the immediate release of the Offender on a Recognizance Release Order.
3. The alternative, absent a finding of exceptional circumstances or absent the exercise of that discretion, would be a sentence that would involve a period of full-time imprisonment, followed by release on a Recognizance Release Order.
4. The question is whether factors in this matter make the case of the Offender exceptional in the way described in cases such as Bredal.
5. The circumstances of the Offender really boil down to the following: 1. The Offender has no previous record of criminal activity, and any sentence of imprisonment would be his first time in custody. 2. The Offender has shown real remorse about, and insight into, the impact of his offending, which is demonstrated by his commitment to treatment. 3. The Offender has already, by his encounter with the criminal justice system to date, been deterred as much as the system can deter him from reoffending.
6. All of that however taken together, does not, in my opinion, amount to anything unusual, out of the ordinary, or exceptional.
7. The extra added factor here is that the Offender has embarked on a process of treatment towards rehabilitation which does appear to be successful so far and his prognosis is good. If the Offender spends any time in full-time imprisonment, that treatment will cease for the duration. That will be detrimental to the Offender's prospects of being rehabilitated and will therefore correspondingly increase his prospects of reoffending, thus increasing the danger to the community.
8. When I take all of the factors relevant to the Offender's subjective case, and without losing sight of the objective seriousness of the offending, I find the circumstances to be exceptional as that word is understood in this context.
9. That, of course, is not the end of the matter. A finding of exceptional circumstances does no more than open a gateway to a discretion or evaluative judgment. The question becomes whether, having regard to the objective seriousness of the offending, the important need for general deterrence, appropriate punishment, and retribution and the like, an exercise of discretion in the Offender's favour would be outweighed by those other factors.
10. I have decided that it is appropriate to make an order that the term of imprisonment to be imposed should be accompanied by an order that the Offender be forthwith released on a Recognizance Release Order.
11. I have to take into account the s 16BA matter, and I have reviewed a large number of what are said to be comparable cases throughout the Commonwealth. As I have said in other judgments, one thing those comparable cases demonstrate is that there really is no such thing as a comparable case and that every one of these cases turns on its own facts. They also demonstrated the potential range of penalties is extremely broad. I do, however, acknowledge that, on any view of those comparable cases, the sentence I propose to impose falls very much towards what might be described as the lenient end of possible outcomes.

The State offence

1. If I were sentencing the Offender for the NSW offence on its own, that is possess child abuse material, I would have proceeded to a non-custodial sentence by way of a Community Corrections Order on the same conditions I am about to impose in relation to the Recognizance Release Order.

Orders

1. I order the following: 1. The Offender is convicted. 2. For the sequence 3 offence, taking into account the s 16BA matter and having deducted 25% for the plea of guilty, the Offender is sentenced to a period of imprisonment of 3 years commencing 20 November 2024 and expiring 19 November 2027. 3. Being satisfied that there are exceptional circumstances, I order, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the Offender be released forthwith on a Recognizance Release Order for a period of 3 years, commencing 6 December 2024, upon giving security himself in the sum of $5,000 upon the following conditions: 1. To be of good behaviour; 2. To, within 7 days of this order, report to Penrith Community Corrections, and thereafter to be subject to the supervision of a Community Corrections probation officer; 3. To obey all reasonable directions of the probation officer; 4. To not travel overseas or interstate without the written permission of the probation officer; 5. To continue to engage with Mr Sheehan on a weekly basis or as otherwise directed by Mr Sheehan and accept any direction made by him as to treatment; 6. To continue to take medication as prescribed by his doctor(s) and not use any illicit drug; and 7. To not access the internet for the purpose of looking at any pornography of any type for a period of 1 year, and thereafter as directed by Mr Sheehan. 1. For the sequence 1 offence, I impose a Community Correction Order for 3 years commencing 6 December 2024 on the same conditions as set out above. 2. Pursuant to section 23ZD of the Crimes Act 1914 and upon the application of the Director of Public Prosecutions the following items are forfeited to the Commonwealth: 1. One (1) OnePlus 7 Pro Android mobile phone bearing ABF Bar Code Number 000309352. 1. Upon the conviction of the Defendant in relation to one count of possession child abuse material contrary to s 91 H(2) Crimes Act 1900 (NSW) (the offence), being a serious offence, the property set out in the Schedule was used in the, or in connection with, the commission of the offence and is therefore tainted property within the meaning of the Act. 2. The property specified in the Schedule is forfeited to the Commonwealth: 1. Red USB - Exhibit Number X0004297602 2. Google Hard Drive - Exhibit Number X0004731354

Amendments 09 December 2024 - Amended Date of Decision 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: 09 December 2024