CDirector of Public Prosecutions v Coates
[2025] VCC 426
•4 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01715
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| DALE COATES |
---
JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 March 2025 | |
DATE OF SENTENCE: | 4 April 2025 | |
CASE MAY BE CITED AS: | CDPP v Coates | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 426 | |
REASONS FOR SENTENCE
---
Subject:Criminal law - sentence
Catchwords: Guilty plea – use carriage service to access child abuse material (CAM) – possess or control CAM – possess a drug of dependence (Cannabis L) – offending related accessing CAM via “Kik” application and possession of 17,579 files of CAM across six devices – significant number of Category 1 CAM depicting real children – high level of moral culpability – no prior criminal history – admissions and co-operation with authorities – previous good character – delay – full weight given to unfairness limb – prospects of rehabilitation likely to improve with further offence specific treatment – low-moderate risk of reoffending – importance of general deterrence for child pornography offences obtained – no sentence other than imprisonment available
Legislation Cited: Criminal Code Act 1995 (Cth); Drugs, Poisons and Controlled Substances Act 1991 (Vic.); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic.)
Cases Cited:R v Booth [2009] NSWCCA 89; Crowder (a pseudonym) v The King [2024] VSCA 211; DPP v Garside [2016] VSCA 74; De Leeuw [2015] NSWCCA 183; R v Verdins [2007] VSCA 102; DPP v Merryfull & Anor [2023] VSCA 244; Curle v The King [2024] NSWCCA 117; Hutchison v R [2022] VSCA 217; Musca v The Queen [2021] WASCA 37
Sentence: Total effective sentence of 30 months imprisonment, to be released after serving 12 months’ imprisonment subject to a RRO to operate for a period of three years.
---
APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr A. Sprague | Director of Public Prosecutions (Cth) |
| For the Accused | Ms E. Clark | James Dowsley & Associates Pty Ltd |
HER HONOUR:
1Dale Coates, you have pleaded guilty to the following offences on Indictment:
(a) using a carriage service to access child abuse material contrary to subsection 474.22(1) of the Criminal Code (Cth) (‘the Code’), the maximum penalty for which is 15 years’ imprisonment;
(b) possessing child abuse material obtained or accessed using a carriage service contrary to subsection 474.22A of the Code, the maximum penalty for which is 15 years’ imprisonment; and
(c) possessing a small quantity of a drug of dependence, namely Cannabis L, contrary to section 73(1) of the Drugs, Poisons and Controlled Substances Act 1991 (Vic.), the relevant maximum penalty for which is 5 penalty units.
2You were born in August 1997 and were 24 years old at the time of the offending. You are now 27 years old and have no prior criminal history.
Circumstances of offending
3The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 5 February 2025, which is the agreed basis upon which you are to be sentenced.
4
On 22 February 2022, the police received information that child abuse material (‘CAM’) was being shared via a social media application known as 'Kik'. On
25 May 2022, the police executed a search warrant at your address in Officer, during which you provided police with your phone and the password to six devices located in your study.
5Each one of these devices was found to contain child abuse material, with a total of 17,579 files located across the six devices, giving rise to Charge 2 – possessing child abuse material. Investigators subsequently analysed the devices and determined that the CAM was accessed by you between 31 October 2021 and 13 May 2022 from your desktop computer.
Charge 1 – Using a carriage service to access CAM
6During the execution of the search warrant, the police seized a Cooler Master Desktop PC. Analysis of this device revealed you had accessed files of CAM using the internet explorer function on your computer, on the following occasions:
(a) On 31 October 2021, you accessed two files, via a file path titled ‘playground’. One file was titled ‘9 beauty pussy (delicious!!!), and the other titled ’13 year old squeal & squirt – quicktime’;
(b) On 13 May 2022, you accessed another three files via the ‘playground’ file path. One file was titled ‘Boy(12) with Girlfriend (12) play’, another file was titled 'kid vids/baby torture’, and the third file was titled ‘China girl 13 years old’.
7During your interview with police, you admitted accessing the CAM using Kik, which you told police then led to you 'clicking on the Mega links'. You told police that you were 'banned' from the Kik platform at one stage, and said that you 'resorted to using an Android emulator called Bluestacks', which allowed you to bypass the ban, so you could continue to access the Kik platform.
8You told police that you were 'intrigued in a way' by CAM, but said you 'never watched it for anything – for sexual gratification or any of that sort of stuff'. You told investigators that you knew searching for CAM was wrong, and against the law, but told them that that was part of the attraction for you; stating you thought it was 'cool and I thought I was, you know, doing something that no-one can, and it's that feeling I guess that just [made] me keep doing it'.
Charge 2 – Possess CAM obtained/accessed using a carriage service on 25 May 2022
9The six devices seized from your property on 25 May 2022 were subsequently analysed and comprised a total of 17,579 files of CAM. The CAM was categorised in accordance with the Interpol Baseline Scale, with a total of 11,146 files being Category 1 images, and 6,433 being Category 2 images.
10Under the Interpol Baseline Scale, Category 1 material depicts real prepubescent children, aged approximately 13 years involved in a sex act, witnessing a sex act or where the material is focused on the anal or genital region of a child. Category 2 material depicts prepubescent children, between the ages of 13 and 18 involved in a sex act, witnessing a sex act or where the material is focused on the anal or genital region of a child.
11Category 2 material also includes images depicting a child at any age who is a victim of torture, cruelty or physical abuse; or shows the breasts of a female child, or is engaged in a sexual pose or is a visual representation of CAM and the material is such that a reasonable person would regard it as offensive.
12The material found of each of the six devices was categorised as follows:
(a) On the Samsung Galaxy mobile phone, 65 images and videos were categorised as Category 1 CAM, while 46 images and videos fell within Category 2. The CAM was located within a 'hidden folder', requiring separate passwords to access them. You told investigators you kept the material in a hidden folder because 'obviously I didn’t want my partner to see the files; I didn’t want anyone to see the files';
(b) On a Samsung Galaxy Note 9 phone, 62 Category 2 images and videos were located within a 'hidden folder' on the device. You admitted downloading CAM directly onto this device because it had significant storage capacity. You said that you stored the material in a hidden folder so that others 'wouldn’t just see it' if they looked at the device.
(c) The majority of CAM was held on your WD Portable Hard Drive device. You told investigators that this device would be the 'main one' and that it had a 'fairly huge amount of child abuse material in a folder inside'. The hard drive contained 10,278 Category 1 and 5,954 Category 2 images and videos. You admitted to investigators that you downloaded these images from your Mega account before saving them to your hard drive and deleting them from your Mega account, in order to 'free up some storage' on your Mega account 'for the next lot to come through'. You said that once you realised Mega were also deleting files, you 'downloaded the remainder to actually have a hard copy… then no-one could come through and delete' the images.
(d) On a Cooler Master Desktop Tower PC, 798 Category 1 and 329 Category 2 images and videos were located.
(e) On an Apple MacBook Pro Laptop, five Category 1 and one Category 2 images and videos were located.
(f) Finally, 41 Category 2 images and videos were located on a Toshiba laptop.
13Overall, the files across the six devices depicted the abhorrent sexual abuse of children, including:
·Pre-pubescent children being sexually penetrated by adults, often whilst restrained or with force;
·Infant children, still in nappies, being sexually penetrated by adult males, anally, vaginally and orally, on same occasions with implements or anal beads and images of those children being defecated upon;
·A series of images of a child undergoing extended sexual abuse, across hundreds of distinct images;
·Children aged under six years of age, being physically restrained and clearly seen crying and trying to get away from the adult males offending against them; and
·Children who were abused to the point where they had obvious inflammation to their genital and anal regions.
14When you were interviewed by police, you admitted storing images on your portable hard drive so that Mega would not be notified because you 'knew at the time that it was illegal'. However, you thought 'well, nothing will ever happen' in terms of consequences.
15You admitted that the images and videos were downloaded into 'one folder called "playground" that has… the bulk of the child abuse material'. You said that some of the files were sorted by the ages of the children involved, and the type of child abuse material they contained, such as whether it was incest related. However, there is no evidence that you manually categorised and named these files.
16You admitted that you were attempting to build up a portfolio or a collection of CAM, saying that you were 'happy about that', because you had so 'much stuff that people shouldn’t have and… then I can give it to other people as well'. You also made other comments about trading in the material, almost like it was a 'game'. However, despite these comments, there is no evidence that you ever distributed any child abuse material to others.
17You said that it was the 'taboo' nature of the material that attracted you, stating you became 'obsessed' with CAM 'because you knew it was illegal and bad'. You said that you would be happy to receive help to cease viewing CAM into the future.
Charge 3 – possess a drug of dependence
18The charge of possessing a drug of dependence relates to a small quantity of cannabis that the police located in your study when they executed the search warrant on 25 May 2022. You admit that it was for personal use, saying that you started smoking cannabis to help you sleep during COVID.
Nature and gravity of offence
19The possession of child abuse material has aptly been described as 'a callous and predatory crime'.[1] The offences of accessing and possessing child abuse material are inherently serious, involving morally depraved conduct.[2] The harm done to the children depicted in the videos and images will undoubtedly be significant. An offender who accesses or possesses child pornography plays a role in that victimisation by fuelling the market for that material. As explained by Simpson J in the case of Booth:
'What makes the crime callous is not just that it exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation continues…And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) provides further encouragement to expand their activities to those who create and purvey the material.' [3]
[1]R v Booth [2009] NSWCCA 89 at [40] (‘Booth’), Simpson J (with whom McClellan CJ and Howie J agreed)
[2]Crowder (a pseudonym) v The King [2024] VSCA 211, at [40] quoting DPP v Garside [2016] VSCA 74 (‘Crowder’)
[3]Booth at [42]
20The Commonwealth offences of accessing and possessing child abuse material using a carriage service both carry a maximum penalty of 15 years’ imprisonment, which is an indication of the relative seriousness with which Parliament, on behalf of the community, views these offences.
21In assessing the objective seriousness of offending of this kind, the following factors have been identified as relevant:[4]
(a) the nature and content of the material, in particular the age of the children and the depravity of the sexual activity depicted;
(b) the number of items or images possessed;
(c) whether the material is for the purpose of sale or further distribution;
(d) whether the offender will profit from the offence;
(e) in the case of possession or access of child pornography for personal use, the number of children depicted and therefore victimised; and
(f) the length of time for which the pornographic material was possessed.
[4]De Leeuw [2015] NSWCCA 183, [72]; DPP v Garside [2016] VSCA 74
22The offending that comprises Charge 2 - possessing or controlling child abuse material obtained or accessed using a carriage service, is a particularly serious example of this offence by reference to these criteria.
23The content of the material clearly depicted the horrific exploitation, physical and sexual abuse of real prepubescent children, often whilst restrained or with force. The images included children as young as infants, who were subject to the most cruel abuse, being sexually penetrated by adults, including with the use of implements, and being defecated upon. Other material depicted children, as young as 10, being physically restrained and clearly distressed. In one series of images, the same child was subjected to extended sexual abuse.
24The number of images/videos you possessed, being 17,579, was substantial. Of these, 11,146 images were assessed as Category 1 child abuse material, depicting real pre-pubescent children. Whilst the precise number of children depicted in the material possessed by you is not known, given the high volume of material[5], I am satisfied to the requisite standard that the material depicts a large number of different children who have been individually victimised. This fact, combined with the series depicting the extended abuse of one child across hundreds of images, underscores the extent of the victimisation of the various children depicted in the images possessed by you.
[5]Noting that it does not include multiple images of the one child, with one exception.
25I accept that you possessed this material for your personal use only. Although you admit to a theoretical intention to share (but not to sell) these images with others, you never acted upon that plan. You are not charged with distributing the images, and there is no evidence that you profited, or stood to profit, from your possession of this extensive child abuse material.
26Finally, although you are to be sentenced for possessing the child abuse material on one day only, your Counsel does not dispute that at least some of the material possessed over the six devices had been in your possession for up to seven months.
27In relation to Charge 1 - using a carriage service to access child abuse material, in assessing the objective gravity of this offence, I have regard to the fact that you accessed a total of five files using an internet browser on two separate occasions, namely 31 October 2021 and 13 May 2022, six months apart in time. The five videos accessed on those dates contained file names indicating the specific nature of the CAM, including one referencing the torture of infants.
28Moreover, one aspect of your offending in relation to Charge 1 demonstrates a degree of persistence in accessing the CAM when, after you were banned from the Kik platform, you resorted to an application to bypass the ban, in order to continue accessing Kik through an ‘Android emulator’. Nonetheless, overall I assess Charge 1 as a lower-level example of an inherently serious offence.
29It is clear that you amassed a substantial amount of child abuse images and videos, despite being aware that to do so was ‘wrong’ and ‘illegal’. You bear a high level of moral culpability for your criminal conduct.
Personal circumstances
30I now turn to your personal circumstances, much of which I have derived from the psychological report of Dr Mathew Barth dated 24 February 2025.[6]
[6] Exhibit 3 – Psychological report of Dr Mathew Barth dated 24 February 2025
31You were born in 1997 and were raised in Melbourne. You were seven years old when your parents divorced. The separation was an acrimonious one, and following their divorce, you continued to live with your mother, and only saw your father occasionally. Your mother remarried, and you report having a difficult relationship with your stepfather as you grew up, although you enjoyed a good relationship with your three stepsiblings.
32In your teenage years, you had more frequent contact with your father and lived with him for various periods. You told Dr Barth that your living arrangements during your childhood were quite unstable, which you describe as contributing to your ongoing sense of insecurity.
33You attended two separate primary schools, moving to Overport Primary School in Frankston from Grade 4. You subsequently attended Frankston Secondary College where you completed VCE, despite difficulties with concentration.
34In February 2014, when you were 16 years old, you were swimming with friends at the Frankston beach when you were circled and threatened by a group of youths who ‘smacked’ a phone out of your hand. As you went to retrieve the phone, one offender stood on it and grabbed your hands telling you not to call the police. A report of psychologist, Michael Warner dated 10 July 2014,[7] states that you suffered from post-traumatic stress disorder and depression as a result of this incident, impacting on your concentration at school after the robbery.
[7] Exhibit 1 – Psychological report of Michael Warner dated 10 July 2014
35Following secondary school, you completed an electrical apprenticeship and have worked in this industry ever since, with a number of different companies.
36Your work history is comprehensively set out in a letter provided to the court by your father, Peter Coates, dated 21 February 2025.[8] He states that after enrolling in the pre-apprenticeship course at TAFE, you were offered an apprenticeship working on commercial building sites across Melbourne. However, the impact of COVID-19 on the industry resulted in the loss of this apprenticeship. Your father says this was a distressing time for you, with no job prospects. You did, however, obtain your A grade licence and in March 2021, you secured a role with Scarlett Contracting, but left that position after experiencing four weeks of workplace bullying. In May 2021, you accepted a role with the Zelo Group, a company specialising in high tech electrical fit outs. However, you were made redundant from that position due to a downturn in the industry in February 2022. You then secured casual employment with TAS Electrical in April 2022. After the search warrant was executed by police and you were arrested in May 2022, your mental health declined, and you found it difficult to continue in employment.
[8] Exhibit 8
37In June 2022, you commenced psychological counselling with Mr Daniel Valladares and had regular appointments with your GP. In October 2024, you were offered employment with Apex Electrical, a commercial electrical company specialising in large factory builds. You enjoyed this role, but recently resigned due to these proceedings. In her evidence at your plea hearing, your mother describes you as being ‘devastated’ when you had to leave this job.
38From the age of 16 to 17, you report having a problem with binge drinking and cannabis use. Your cannabis use, in particular, increased during the COVID-19 lockdowns in 2021 and 2022, where there were periods you were using cannabis daily. Since your arrest on these charges, you have ceased all cannabis use, and have significantly reduced your consumption of alcohol.
39From the age of 13, you have used the internet to search for pornography. At that age, you did so to satisfy your curiosity about sexual matters. Over your teenage years, your propensity to view pornography increased, which Dr Barth attributes to your difficulty connecting with female peers, leading to feelings of frustration and inadequacy.[9] You told Dr Barth that that you viewed a diverse range of pornographic material online, which culminated in you finding child abuse material. You described learning about the ‘dark web’ and downloading a browser that allowed you access to a wide range of material in this manner, which involved viewing and downloading CAM, leading to your offending.
[9] Exhibit 1, at [25]
40You have had a number of intimate relationships including a relationship of eight years with your first girlfriend from the age of 19. You lived together for the last 18 months of that relationship, but it ended in February 2023, due to these charges. You are now in a relationship with another woman, who is aware of the nature of your offending and remains supportive of you.
41A report prepared by psychiatrist, Associate Professor Ahmed Torshizi, dated 17 February 2025, was relied upon at your plea hearing.[10] You were diagnosed with ADHD in January 2025. Associate Professor Torshizi states that you continue to present with symptoms consistent with ADHD, mixed anxiety and depression for which he has prescribed medication, in addition to PTSD. You commenced psychological treatment with Mr Geoffrey Burrows in May 2024, including offence-specific treatment. You report finding these sessions helpful and the medication for ADHD of assistance.
[10] Exhibit 2 – Psychiatric report of Dr Ahmad M Torshizi dated 17 February 2025
42Dr Barth assesses your current mental state as being characterised by anxiety-related and depressive symptoms of moderate intensity. The primary cause of these symptoms, in the opinion of Dr Barth, is your concern about your current legal situation. He states that your symptoms are causing you a ‘moderate degree of distress’ but are not sufficiently severe at this time to warrant a diagnosis of any mood disorder, anxiety disorder or adjustment disorder.
Matters in mitigation
43On your behalf, in detailed written submissions that were expanded upon at your plea hearing, Ms Clark raised a number of matters that operate in mitigation of your sentence.
44First and foremost, you entered an early guilty plea to these charges. You did so at a second committal mention and, by pleading guilty at this time, you saved the court and the community the time and resources associated with either a contested committal hearing or a trial. By your guilty plea, you acknowledge responsibility for your offending and facilitate the course of justice. You are entitled to have the utility of your early guilty plea recognised in mitigation of sentence.
45Secondly, you were co-operative with police when you were arrested, and made full admissions to your offending behaviour. You provided investigators with passwords to your various accounts to facilitate their investigations. Moreover, in addition to the remorse inherent in your guilty plea, you have expressed remorse and shame for your offending in your discussions with Dr Barth and Mr Burrows, and in your discussions with family, as outlined in the various character references I have received. In a letter you wrote to the court, you also express shame for your offending.[11]
[11] Exhibit 7 – Letter dated 25 February 2025
46You accepted responsibility for your offending from an early stage and have been frank about the nature and extent of your offending in your discussions with family and others. This is to your credit. You have expressed remorse for your conduct which is relevant to your sentence, not only in adding weight to the benefit that attaches to your guilty plea, but in my assessment of your prospects of rehabilitation. However, for reasons I will return to later in my reasons, I consider you are yet to develop true insight into the nature of your offending, and the likely motivations for engaging in this type of offending.
47Thirdly, you are a person with no prior criminal history. You are to be sentenced as a person of otherwise good character. Despite some challenges, particularly during the COVID-19 lockdowns, you have always sought to secure and maintain employment as an electrician. You are described as a caring and generous young man by those family members and others who have provided character references on your behalf. I have regard to the fact that, at the age of 27, you are to be sentenced as a person who is otherwise of good character, although it is recognised that this factor is only of limited weight in cases of this nature.
48No reliance was placed on the authority of Verdins,[12] and whilst Dr Barth considers that you suffer from a degree of anxiety and depressive symptoms, he does not consider that they are of a severity sufficient to meet the criteria for a formal mental health diagnosis.
[12]R v Verdins (2007) 16 VR 269
49As context to your offending, I do have regard to Dr Barth’s opinion that you present as immature for a person your age. He states that although you present as sociable, in his opinion this masks feelings of shyness and inadequacy, in turn, questioning your attractiveness to others. Dr Barth concludes that your internet-based offending provided you with a ‘self-contained outlet’ for these problems, one that was readily available. Although this assessment does not justify your offending, it provides a broader context and explanation for your offending.
50Fourthly, the delay associated with these proceedings is relevant to your sentence.
51You were arrested and interviewed on 25 May 2022 where you made extensive admissions to your offending conduct. You were then released by police pending summons so the devices that had been seized could be analysed. The time and resources associated with this analysis is the explanation for the time taken for you to be further interviewed by police, when you voluntarily attended at Dandenong Police station on 24 January 2023. However, it was not until over a year later, on 19 April 2024, that the police charged you with these offences. The prosecution is unable to provide any explanation for this significant delay, occasioned through no fault of yours.
52After being charged, the matter promptly resolved to a guilty plea, following two committal mentions in the Magistrates’ Court. You now fall to be sentenced close to three years after you committed these offences.
53Significant delay before an offender is ultimately sentenced can be a powerful mitigating factor. There are two limbs to consideration of such delay: unfairness and rehabilitation.
54In this case, having made full admissions to your offending after the search warrant was executed in May 2022, you have had this serious matter hanging over your head, uncertain as to the outcome, for close to three years. Dr Barth, in his report, notes that you experienced an ‘intense emotional reaction’ in the aftermath of being charged, and that the stress of your legal situation has contributed to your feelings of shame and guilt, stating that you have experienced periods of suicidal ideation.
55Your mother gave evidence at your plea hearing, and described the impact of this delay, with the matter 'hanging over our heads always' as being 'a horrible, anxious time'. From her observation, you appeared 'broken'. I have no hesitation in finding that the extensive delay associated with this matter, notably the unexplained delay of over a year between attending for further interview and being charged, has caused you significant anxiety. Accordingly, I give full weight to the unfairness limb of delay in mitigation of your sentence.
56The second limb of delay concerns whether, during the period of delay, an offender has made progress towards rehabilitation. As the Court of Appeal explained in DPP v Merryfull & Another,[13] there are two ways an offender may call on delay in aid of establishing improved prospects of rehabilitation, stating:[14]
'The rehabilitation limb concerns whether, during the period of delay, an accused made progress towards rehabilitation. There are two aspects to this limb: remorse and reform. The first requires evidence of acceptance of responsibility for the offending, acknowledgment of its wrongfulness and expression of contrition. The second requires evidence of the steps an offender has taken to reform. Such evidence might include obtaining counselling or other professional assistance, refraining from committing any further offences and contributions made to the community. Both remorse and reform must be demonstrated for a sentencing judge to give full weight to the limb. Less than full weight will be accorded where reliance is placed merely on abstinence from further offending.'
[13]DPP v Merryfull & Anor [2023] VSCA 244 (‘Merryfull’)
[14]Merryfull at [46]
57Here there are a number of positive indications that lend support to the submission made on your behalf that you have very good prospects of rehabilitation. You have no prior criminal history and have ongoing family support. Significantly, the support expressed for you by your parents, your current partner, and other family friends is made in the full knowledge of the nature and extent of your offending. In addition to making full admissions to police, you have spoken frankly and honestly about your offending with family and others close to you. This, as I stated, is indicative of your remorse.
58You have a relatively strong work history together with the skills and qualifications that should assist you to find work into the future. I also have regard to the fact that you were relatively youthful at the time of the offending, and at the age of 27 still have much of your life to live.
59Moreover, you sought out psychological counselling after being arrested and, significantly, have actively engaged in offence-specific treatment with Mr Burrows since May 2024, meeting the costs of such treatment personally. Through that treatment, you have expressed shame for your offending, and in the opinion of Mr Burrows, you have begun to develop an understanding of the destructive impact and harm done to the children subjected to sexual exploitation in the creation of the CAM that you accessed and viewed. The treatment has not only focused on your ‘problematic cognitions about CAM’, but also on improving your coping mechanisms to address your emotional and interpersonal issues.
60You have ceased all cannabis use since your arrest. You have also been fully compliant with all bail conditions and have not re-offending in the past three years.
61Having conducted various risk assessments relating to sexual offending, Dr Barth concludes that your risk of recidivism falls in the low-moderate risk category, specifically in relation to online sexual offending. Dr Barth considers that with continued specialist sex-offender treatment, this risk profile is expected to reduce.
62Against these positive indications however, I accept the prosecution submission that the expert evidence qualifies the extent to which I can confidently conclude that you have developed full insight into your offending, and the motivation for your conduct. In your letter to the court, you state that you were never sexually interested in this material, and it was submitted on your behalf that your 'offending appeared to be motivated by matters unrelated to a sexual interest in children'.
63In contrast, in his report Dr Barth, states that the nature of your offending 'clearly raises concerns about [your] sexual adjustment'. More specifically, Dr Barth states that 'the nature and context of [your] access to this child abuse material points to the likelihood of deviant sexual cognitions about underage and prepubescent females which in turn formed the basis for deviant arousal patterns'. Similarly, Mr Burrows states that your offending had 'likely sexual motivations' and that you require 'further intervention' to develop improved insight into the likely sexual motivations for your conduct.
64I consider that your future rehabilitation prospects are directly related to your ongoing engagement in offence-specific treatment to develop a comprehensive understanding of your offending behaviour, including the sexual motivations for possessing such an extensive amount of child abuse material, in order to reduce your risk of re-offending. However, as stated, your demonstrated preparedness to engage in such treatment over the past year, adds to my confidence that with future treatment and greater insight, the risk of you re-offending will further reduce. I consider that specific deterrence still has a role to play in the sentence I impose, whilst imposing a sentence that facilitates your ongoing treatment.
65Finally, for a first-time offender, I accept that your personal immaturity, social anxiety and depressive symptoms will make your transition to prison difficult. Having regard to that difficulty, I also accept that this experience of custody will have a salutary effect on you.
Other sentencing considerations
66In sentencing you for the Commonwealth offences, I am required to impose a sentence of a severity that is appropriate in all the circumstances of the offending. In doing so I have had regard to the factors set out in s16A(2) of the Crimes Act 1914 (‘the Act’).
67In the recent case of Crowder, the Court of Appeal explained the importance of general deterrence in the rapidly evolving world of internet-facilitated offending involving child pornography, stating:[15]
‘In recent times, offending involving child pornography has proliferated, and is difficult to detect in view of the anonymity that is provided by the Internet. Its increasingly pervasive and toxic influence informs the inherent gravity of the offending, and the importance of the role of sentencing in addressing the grave harm occasioned by it. It is for those reasons that the purpose of general deterrence is accorded primacy in sentencing offending involving child pornography.’
[15]Crowder at [43]-[44]
68In sentencing you for this offending, I must send an unequivocal message to other like-minded offenders that those who choose to access and possess child abuse material can expect to serve a significant jail term if their offending is detected. As stated in Crowder, ‘it is only in that way that the courts can perform the vital function of providing protection to vulnerable children’.[16]
[16] Crowder, at [44]
69Given the objective gravity of your offending, I am satisfied that no sentence other than imprisonment is appropriate in all the circumstances of the case.
70Balanced against these matters, I also have regard to the specific provisions in the Act that require the objective of rehabilitating offenders for Commonwealth sex offences to be taken into account when determining the sentence to be passed, or the orders to be made by the Court. This includes considering whether it is appropriate, for instance, to impose any conditions directed to the offender’s rehabilitation or treatment in any sentencing order made by the Court. The expert opinions of Dr Barth and Mr Burrows lend support to a conclusion that your future rehabilitation would be enhanced, and the risk of re-offending correspondingly reduced, by ongoing specialist sex offender treatment.
71In submissions made at your plea hearing, both the prosecution and defence counsel submitted that a sentence of imprisonment with a Recognizance Release Order (‘RRO’) to be imposed after a period of immediate imprisonment would adequately reflect the objective gravity of your offending whilst enabling the imposition of conditions to promote your rehabilitation. It was conceded by Ms Clark that no exceptional circumstances exist that would justify your immediate release pursuant to s20(1)(b)(iii) of the Act.
72Both Counsel helpfully provided me with references to a number of cases that, it was submitted, are comparable to yours. Although comparable cases provide a guide as to the range of sentences imposed in like cases, they do not operate as a precedent, nor do they fix the boundaries for any sentence to be imposed. Ultimately, every case must be decided on its own facts and circumstances. Current sentencing practices are only one factor amongst many in determining an appropriate sentence.
73Of the cases to which I was referred by the prosecution, I have had particular regard to the sentences imposed in the cases of Curle[17] and Crowder. In the case of Curle, the NSWCCA dismissed an appeal against a sentence of 2 years, 5 months’ imprisonment for an offender charged with possessing CAM across 619 video files, 40 images and two stories on a desktop computer, 60 CAM images and 384 video files on his mobile phone and 2 video files saved on an SD card. The charge of accessing CAM related to 1,333 CAM files downloaded over the course of approximately two weeks from a Telegram server. Unlike here, the offender was also sentenced for transmitting CAM. In that case, the offender, aged 53, also demonstrated remorse, had no prior convictions, had co-operated with authorities and had reasonable prospects of rehabilitation. A RRO was imposed after the offender had served 21 months’ imprisonment.
[17] Curle v The King [2024] NSWCCA 117
74In Crowder, the offender had also pleaded guilty to accessing and possessing CAM, across five separate devices. The material had been downloaded over a four week period in 2002. The offender was found to have possessed 5, 233 CAM files, of which 4,072 were identified as unique. The majority of files were animations, with 700 files depicting actual acts of sexual abuse, perpetrated on real children. In my view, the objective gravity of your offending is greater, having regard to both the number and nature of CAM files possessed by you. In the case of Crowder, the Court of Appeal dismissed an appeal against a sentence of 26 months’ imprisonment, to be released on an RRO after serving 12 months.
75In my view, the quantum of CAM material possessed in the case of Hutchinson[18] to which I was referred, namely 317,003 files, removes that case from consideration as a comparable case.
[18] Hutchison v R [2022] VSCA 217
76I have also reviewed the sentences imposed in other decisions of this court and other intermediate courts, to which I was referred by Ms Clark.
77In particular, reliance was placed on the decision of the WA SCA in Musca[19] where the offender was sentenced to 19 months’ imprisonment with 14 months to be served before being released subject to a RRO. The offending in that case involved State offences of possessing and accessing child pornography stored on a mobile phone and tablet. A total of 7,662 images and videos were located on those devices, including those involving penetrative sexual activity between children and adults. The offender in that case was 41 years old, much older than you, and had no relevant criminal history.
[19] Musca v The Queen [2021] WASCA 37
78Finally, I have regard to s19(5) of the Act which imposes a presumption of cumulation for the sentences of imprisonment imposed for Commonwealth child sex offences, unless the court is satisfied that imposing the sentence in a different manner would still result in sentences that are of a severity that is appropriate in all the circumstances.
79In my view, there should be some degree of cumulation to reflect the separate criminality of the offence of accessing CAM on two occasions, that is the subject of Charge 1, whilst recognising some overlap between that offence with the more serious offence of possessing 17,579 files of child abuse material, that is the subject of Charge 2. I consider that only modest cumulation is warranted to give effect to the principle of totality and in order to impose a sentence that is of a severity that is appropriate in all the circumstances of your case.
Sentence
80Balancing the matters to which I have referred, whilst having regard to the maximum penalty for the offences, I sentence you as follows.
81On Charge 1, using a carriage service to access child abuse material, you are convicted and sentenced to 12 months’ imprisonment.
82On Charge 2, using a carriage service to possess child abuse material, you are convicted and sentenced to 26 months’ imprisonment. This is the base sentence and commences today, 4 April 2025.
83On Charge 3, possession of a small quantity of cannabis, you are convicted but otherwise discharged.
84I further direct that the sentence imposed on Charge 1 commence eight months before the sentence imposed on Charge 2 is completed. In other words, four months of the sentence imposed on Charge 1 is to be served cumulatively upon the sentence imposed on Charge 2.
85This gives a total effective sentence of 30 months’ imprisonment. Pursuant to ss20(1)(b)(i) of the Act, I direct that you be released after serving 12 months of the term of imprisonment imposed on Charges 1 and 2 upon you giving security by way of recognisance of $1,000 to comply with the following conditions:
(a) to be of good behaviour for three years;
(b) to be subject to supervision by officers of Community Corrections and to obey all reasonable directions of that service;
(c) to accept any direction of Community Corrections that you attend any sex offender treatment program; and
(d) that you must not, during this period, travel interstate or overseas without the prior written permission of Community Corrections.
86I am required to explain the effect of the Recognizance Release Order to you. If you comply with the conditions and are of good behaviour for the period of three years you will have complied with your recognizance. If you are not of good behaviour, or you fail to comply with the conditions of the order, you may be brought back before the Court. Depending on the nature and seriousness of any contravention, the Court may either take no further action, impose a fine; extend the period of your good behaviour; impose a different penalty; or revoke the Recognisance Release Order, resulting in your imprisonment for the balance of your sentence.
87Pursuant to s18 of the Sentencing Act 1991 I declare 29 days of presentence detention to be reckoned as served under the sentence I have imposed.
88Mr Coates, your offending attracts the provisions of the Sex Offenders Registration Act 2004 (Vic) and you are a registrable offender. Having been found guilty of two Class 2 offences, your reporting obligations under that Act are for 15 years.
89Pursuant to s 6AAA of the Sentencing Act 1991 I indicate that had you not pleaded guilty to these offences, the sentence I would otherwise have imposed is a sentence of four years, six months’ imprisonment with a non-parole period of three years.
90Finally, I make the disposal order sought by the prosecution in relation to the cannabis seized, noting that this order is not opposed.
- - -
0
10
0