Director of Public Prosecutions v Cole
[2016] VCC 1748
•14 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.CR-16-01414
| THE QUEEN |
| v |
| BRYAN DOUGLAS COLE |
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JUDGE: | His Honour Judge Dean | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 November 2016 | |
DATE OF SENTENCE: | 14 November 2016 | |
CASE MAY BE CITED AS: | DPP v Cole | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1748 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Breckweg | CDPP |
| For the Accused | Mr P. Tiwana | Dribbin & Brown Criminal Defence Lawyers |
HIS HONOUR:
1 Bryan Douglas Cole you have pleaded guilty to the following charges –
2 Accessing child pornography using a carriage service contrary to s.474 sub‑s.19 (1) of the Criminal Code (Cth). The maximum penalty for that offence is 15 years imprisonment.
3
Transmitting child pornography using a carriage service contrary to s.474
sub-s.19 (1) of the Criminal Code (Cth). The maximum penalty for that offence is 15 years imprisonment.
4 Soliciting child pornography using a carriage service contrary to s.474 sub-s.19 (1) of the Criminal Code (Cth). The maximum penalty for the offence is 15 years imprisonment.
5 Making available child pornography material using a carriage service contrary to s.474 sub-s.19 (1) of the Criminal Code (Cth). The maximum penalty for that offence is 15 years imprisonment.
6 Preparing for or planning an offence against division 272 of the Criminal Code involving sexual intercourse with a child outside of Australia contrary to s.272 sub-s.20 (1) of the Criminal Code (Cth). The maximum penalty for that offence is 10 years imprisonment.
7 Transmitting indecent communications to a person under 16 years of age or believed to be under 16 years of age using a carriage service contrary to s.474 sub-s.27A of the Criminal Code (Cth). The maximum penalty for the offence is 7 years imprisonment.
8 You pleaded guilty at committal mention and I have taken your early plea into account in your favour in mitigation of sentence. You have admitted one prior court appearance in 1986 for loitering for prostitution in a public place. Your counsel informed me this offending involved you soliciting an adult male.
9 A prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows -
10 On 16 March 2016 Australian Federal Police and Victoria Police members of the Joint Anti Child Exploitation Team executed search warrants at premises occupied by you in the City of Melbourne and Vermont. At the premises in Vermont, investigators seized two computers and a USB stick. At the premises in Melbourne, investigators seized two computers, an iPhone and two USB sticks. You also provided investigators a password in relation to six Internet accounts used by you on various platforms.
11 Following execution of the warrant you were interviewed by the investigators and generally denied being engaged in child exploitation activity.
12 Forensic examination of the devices seized by investigators revealed 698 child pornography images and videos, 251 of these files were in category 4 or 5, the most extreme forms of child pornography.
13 I have examined a sample of all of the images and videos and it is clear that they may properly be described as repugnant and depraved. Many of the images depict very young children being subjected to sexually motivated acts of sadism and torture. One of the videos is entitled, "Daisy's Destruction 2" depicting the brutal, sexually motivated torture of an 18 month old girl.
14 An examination of the electronic conversations stored on the devices revealed 162 conversations occurring between 23 December 2013 and 15 March 2016 revealing your obsession with the violent sexual abuse and torture of children. Some of the conversations took place when you were travelling in Thailand and Cambodia in 2014 and 2015. The conversations are in terms of unspeakable depravity.
15 The examination of the devices also revealed that you solicited from and made available child pornography to other persons engaged in this serious criminal activity.
16 Between 15 December 2015 and 15 March 2016 you also made plans and prepared to return to Thailand to engage in sexual intercourse with a child. You booked a flight to Thailand for this purpose on 15 March 2016. Communication stored on the devices examined by investigators revealed that your travel to Thailand and Cambodia in 2014 and 2015 was motivated by child exploitation.
17 Finally, the examination revealed in March 2016 that you engaged in an indecent communication with a person under the age of 16.
18 This summary of your offending reveals that between the dates charged you were engaged in a range of criminal acts in furtherance of your obsession with the sexually motivated abuse and torture of children who, in many cases, were infants. You regarded the children as little more than objects available to be abused by depraved people like you and your online associates.
19 It is also plain that you were prepared to perform acts of sexually motivated violence on children yourself. I do not accept, as was submitted by your counsel, that this was a world of fantasy that you sought refuge in. In my opinion, you are a sadistic paedophile who has been unmasked by this investigation.
20 Your offending is extremely serious and the sentence I impose must be calculated to deter you and others from offending in this manner. The sexually motivated exploitation of children must be denounced by the courts in unequivocal terms. These are not victimless crimes and vulnerable children must be protected from people like you.
21 The charge of preparing or planning to engage in sexual intercourse with a child outside Australia is specifically designed to protect vulnerable children and the court must, by its sentence, give effect to that important objective. Your counsel submitted that this charge fell well short of an attempt to engage in an act of sexual penetration with a child and for that reason it ought to be viewed as less serious than such an offence.
22 I do not accept that this reasoning process assists in the analysis of the offence before the court. The offence is intended to criminalise conduct in preparation for what is known as “sex tourism”. Conduct of this type is difficult to detect, causes great harm and as was submitted on behalf of the Commonwealth in this case, is properly characterised as a serious crime. The nature of the offence involves planning. It is deliberate conduct with a specific objective, namely, the sexual abuse of a child in another country. In my opinion a conviction for this offence must attract a significant penalty.
23 I now turn to your personal circumstances. You were born on 9 September 1944 in Numurkah and are now aged 72. Your family were farmers and you have seven siblings. Your childhood would appear to have been settled and normal and you completed Year 12 and attended university, finally completing a Bachelor of Arts at La Trobe University. You also have a number of other tertiary qualifications.
24 You confirmed your sexual orientation as homosexual when aged 20 but there is no connection between this and your deviant criminal activity. You have worked as a primary and secondary school teacher for a total of 17 years and for a further 14 years as an education administrator. Between 2010 and 2014 you were employed by the Australian Technical and Management College as a director of studies. This work led you to travelling in India, Pakistan and Sri Lanka to recruit students and establish overseas campuses. The evidentiary material before the court discloses that child pornography files were created on one of your computers in 2010. Whilst I am not sentencing you for these files, in my opinion, your moral culpability is to be considered in the context of your career as a teacher and educator.
25 For many years it was your responsibility to care for the welfare of children and you occupied a position of trust in that regard. As I have said, you have been revealed to be a sadistic paedophile and by reason of your work you must have been aware how the abuse of children causes them lifelong harm. For this reason your moral culpability is significant and it outweighs to a correspondingly significant degree the character evidence and references relied on in your case.
26 I have received in evidence a psychological report of Ms Pamela Mathews, a consulting and forensic psychologist, detailing your developmental history and psychological profile. In her opinion, the appropriate diagnoses in your case are sexual sadism disorder and paedophilic disorder. You also suffer from anxiety and depression following a diagnosis of prostate cancer in 2014.
27 Whilst I accept that your deviant behaviour intensified with your deteriorating psychological health I do not accept that your sexual sadism and paedophilic disorder is a recent response to the cancer diagnosis or your retrenchment from your employment at the age of 70.
28 Your counsel accepted that a term of imprisonment is the only sentencing course available in this case and thereby he accepted that the Corrections authorities will monitor your prostate cancer which has not yet been the subject of surgery, radiotherapy or other treatment.
29 I accept that imprisonment will involve a degree of hardship for you by reason of your age and that hardship will increase as you get older. I also accept that you are now, to some degree, remorseful for your offending but you have not acknowledged the seriousness of your crimes and the level of your participation in this depraved activity.
30 In my opinion your prospects of rehabilitation are to be approached with caution although the risk of you offending will, in all probability, reduce within increasing age.
31 In the result the sentence of the court is as follows –
32 On the charge of accessing child pornography using a carriage service you are convicted and sentenced to two years imprisonment. I direct that sentence commence on 14 February 2018.
33 On the charge of transmitting child pornography using a carriage service you are convicted and sentenced to be imprisoned for 18 months. I direct that that sentence commence on 14 August 2017.
34 On the charge of soliciting child pornography using a carriage service you are convicted and sentenced to be imprisoned for 15 months. I direct that that sentence commence on 14 May 2017.
35 On the charge of making available child pornography using a carriage service you are convicted and sentenced to be imprisoned for 12 months. I direct that that sentence commence on 14 February 2017.
36 On the charge of preparing for or planning an offence against Division 272 of the Criminal Code involving sexual intercourse with a child outside of Australia you are convicted and sentenced to be imprisoned for three years. I direct that that sentence commence on 14 November 2018.
37 On the charge of transmitting indecent communications to a person under 16 you are convicted and sentenced to be imprisoned for six months. I direct that that sentence commence this day, that is 14 November 2016.
38 This makes for a total effective term of imprisonment of five years.
39 I direct that you serve three years imprisonment before becoming eligible for release on parole.
40 I declare that you have served 12 days by way of pre-sentence detention not including today.
41 But for your plea of guilty I would have imposed a total effective term of imprisonment of seven years and fixed a non parole period of five years.
42 You will be placed on the Sex Offender Register for life. My associate will provide you with information in that regard.
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