Director of Public Prosecutions v Coombs
[2024] VCC 544
•23 April 2024 Melbourne
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-01092
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| MARK COOMBS |
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JUDGE: | HER HONOUR JUDGE WILMOTH |
WHERE HELD: | Melbourne Shepparton |
DATE OF HEARING: | 25 March 2024 Shepparton |
DATE OF SENTENCE: | 23 April 2024 Melbourne |
CASE MAY BE CITED AS: | DPP v Coombs |
MEDIUM NEUTRAL CITATION: | [2024] VCC 544 |
REASONS FOR SENTENCE
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Subject: criminal law – sentence
Catchwords: Pleaded guilty to one charge each of using a carriage service to transmit child abuse material - using a carriage service to cause child abuse material to be transmitted to himself - attempting to use a carriage service to transmit child abuse material - possessing or controlling child abuse material that was obtained or accessed using a carriage service – charges 1 - 3 occurred for approx. 2 months – charge 4 one occasion – considerable amount of material of particular gravity - general deterrence primary sentencing consideration - 56 year old offender – single – stable employment – no prior offending - no symptoms of psychological or psychiatric disorder - adjustment disorder with mixed depression and anxiety since arrest - diagnosed with smouldering myeloma – monoclonal B-cell lymphocytosis - lymphadenopathy
Cases Cited: Verdins v R [2007] VSCA 92
Sentence: 15 months imprisonment to be released after 9 months on a
Recognisance Release Order to be of good behaviour for 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Carlander-Munro | Office of Public Prosecutions |
For the Accused | Ms R. Parks | Emma King |
HER HONOUR:
1Mark Coombs, you have pleaded guilty to four charges concerning child abuse material. They are: using a carriage service to transmit child abuse material, using a carriage service to cause child abuse material to be transmitted to yourself, attempting to use a carriage service to transmit child abuse material and possessing or controlling child abuse material that was obtained or accessed using a carriage service.
Background
2The first three charges occurred during approximately two months in mid–2021, and the fourth charge was on one occasion in January 2022 covering the totality of material.
3Police executed a search warrant at your address on 21 January 2022 and seized items including a black iPhone. In your record of interview you admitted this was your phone and that the phone number was yours, as well as the Instagram account and its associated phone number. On the phone police found a number of chats with six different users on the internet messaging service Telegram and 650 unique files of child abuse material referred to the acronym C–A–M or CAM. It is convenient to adopt the use of that acronym in these remarks.
4You admitted to police that you knew that CAM was “people having sex with kids” and that 'you get in a shitload of trouble if you do it'. You were charged on summons on 18 November 2022.
The offending
5The prosecution summary contains descriptive examples of the images and videos which make up each charge.
6There is no need for me to recount all of the details of the material but I will attempt to summarise that material briefly in order to convey its serious nature and to assist in an understanding of these remarks and the sentence.
7Charge 1 refers to a total of 102 CAM files and text-based CAM sent to four Telegram users. The prosecution summary lists the material sent to each user separately over the two months between June and August.
8(1) The first recipient was a user identified as 'Joanna'. Between 17 June and 29 June you transmitted to that user 17 files and a number of messages amounting to CAM including images and videos. The images were of prepubescent female children, many aged under 10, exposing their genitalia, engaging in oral, anal and vaginal penetration and, in one instance, in a state of bondage.
9You sent a series of text messages to that user consisting of comments about the bodies and genitals of children including expressions of your desired activity with them.
10(2) The second recipient or user is identified only as 'Deleted account 2'. Between 25 June and 6 August you sent 30 files and a number of messages amounting to descriptive CAM to that user.
11Again, these images and videos consisted of acts of penetration of young children, some under the age of five. It included images of gross depravity such as ejaculation onto a child's face and penetration of a child under the age of five who appeared to be distressed. The messages sent and received by you were similarly depraved.
12(3) The third recipient or user was Isaias Moreno. On 29 June you sent 36 CAM files to that user which included seven images and 15 videos, the longest of which was 20 seconds in duration. They showed penetration and ejaculation involving prepubescent children, many under five and one aged three.
13(4) The fourth recipient or user was 'Jason E'. On 6 August you sent 19 files as well as text-based messages classified as CAM to that user. They were all similar in content to those sent to the first three users but included longer videos, the longest being almost two minutes[1].
[1] 1 minute and 59 secs
14Charge 2 refers to four series of contacts between you and the same four users when you caused those users to transmit 46 files of CAM to you. The material was similar to that which was the subject of Charge 1. It included several videos, the longest being of two minutes and eight seconds duration showing eight prepubescent and pubescent girls exposing their breasts. The material also included an image of a naked girl aged two to three years exposing her vagina.
15Charge 3 refers to attempts by you during July and August to send a total of
11 files of CAM to a user 'Deleted account 3'. All these files consisted of material similar to those sent on the other occasions.16Charge 4 is the charge of possession of 650 unique files of CAM located on your iPhone on 21 January 2022 when the police executed the search warrant at your home. There were 540 images and 74 videos involving children aged under 13 and 32 images and four videos of children aged under 18.
17In addition to images showing penetration, some images showed children enduring forms of bondage, such as a child with her legs tied by ropes with her vagina exposed, and a pubescent girl having her face slapped by a man engaged in sexual intercourse with her. A series of images were of a girl under the age of eight showing significant bruising and lacerations to her body, and further images of her with her limbs tied up and duct tape over her mouth.
Gravity of offending
18Although the number of images transmitted and in your possession is not the of highest order, it is nonetheless a considerable amount. More important is the nature of that material which in this case was of particular depravity. All the children depicted were young, in some cases very young, and many different children were used in the gross manner I have briefly summarised.
19You used your iPhone to transmit this material and to retain possession of it for several months.
20The children depicted as described were the victims of insidious international crime made possible because there is a market for it created by offenders. Its seriousness is magnified by the ease with which it is transmitted and retained with the exploitation of the child victims continuing for long periods of time.
21For these and other reasons the need for general deterrence is of high importance. Denunciation and severity of punishment by the courts are intended as means of deterring perpetrators in the hope of protecting vulnerable children, not only the immediate victims whose images are used but also those children who might be exposed to viewing the images.
22A term of imprisonment would be expected in a case like this, and your counsel did not submit otherwise in acknowledgement of the seriousness of the charges.
Personal background and circumstances
23In determining an appropriate sentence I must consider your own particular circumstances.
24You are a 56-year-old single man who has been living alone and working for the same employer for about 10 years. That employment has been part time for some years. Your employer and two friends have written to the court on your behalf describing you as honest, reliable and courteous, and a good friend.
25The psychologist, Ms Lechner, who assessed you recently, found you to be a socially anxious man with limited social and communication skills. This is consistent with your explanation of loneliness as a background factor contributing to your offending, which commenced during the COVID restrictions. At that time you were working but subject to the restrictions affecting most of the community.
26Your early family life was unremarkable apart from the separation of your parents, who later reconciled, although you and your sister were subjected to physical punishment by your father. You were close to your mother and cared for her when she became terminally ill a few years ago. You now have a good relationship with your father and sister and also with your son, who attended court for the plea hearing.
27You did not do well at school where you were bullied and Ms Lechner described this, along with problems at home, as contributing to your long-term anxiety, low self-esteem, and lack of confidence in social settings.
Mitigating circumstances
28These observations lead me to consider some mitigating circumstances relevant to an appropriate disposition for your offending.
29You have no history of prior offending and do not have any symptoms suggestive of a psychological or psychiatric disorder, nor any substance abuse disorder or personality disorder. You have been diagnosed with an adjustment disorder with mixed depression and anxiety which has developed since your arrest. Ms Lechner is concerned that specialist assessment should take place to determine the nature and extent of any sexual deviance which might be present, and that it is this concern that led her to assess your risk of re-offending as being low to moderate.
30Part of that risk assessment included Ms Lechner's report that you have found the process of being arrested most salutary and embarrassing and that this is a protective factor which lowers the risk. In exploring possible motives for the offending, Ms Lechner noted your seeming lack of understanding of your actions. Even though you said you knew the use of child abuse material was wrong, you appeared not to fully understand why.
31A potentially important mitigating factor is that you have been diagnosed with what your specialist haematologist, Dr Maddy, has described as a 'smouldering' myloma and monoclonal B-cell lymphocytosis. At the time of the plea hearing this was under observation. A separate diagnosis at that time appeared to be that of cervical lymphadenopathy.
32Both these conditions have now been confirmed by Dr Maddy by letter dated 12 April 2024. She wrote that they do not require treatment but you need monitoring and this can be done while you are in custody, subject to blood tests being carried out two weeks before the next review, which is due on 12 July. She is prepared to discuss this with the prison medical officers and has provided her telephone number.
33There has been some delay in this matter to the extent that you have had the matter hanging over your head for more than two years with the attendant embarrassment and anxiety about the outcome. I take that into account.
34I also take into account the cooperation that you gave the authorities, after your initial denial, by giving them your passwords for your accounts as requested.
35The charges are of course very serious, not just inherently but also because of the level of depravity. The need for general deterrence is the primary sentencing consideration. As already mentioned, it is recognised that children are abused and exploited by the creation of the material and should be protected, particularly given its prevalence and ease of access to it on an international level. The sentence I impose should reflect this and it will outweigh the mitigating factors to which I have referred, including the fact that you have no previous convictions.
36There is also a need for specific deterrence, that is to deter you from offending again, and Ms Lechner has identified some concern about that.
37Your plea of guilty to the charges at the earliest possible stage means that you are entitled to a discount on your sentence for having avoided the expense and inconvenience of a trial. You have remained on bail since being charged. Your plea can be accepted as an indication of remorse, confirmed by your comments to Ms Lechner that you knew what you did was wrong and that you had been stupid.
38Another mitigating factor is the hardship that you are likely to experience being in prison for the first time with limited coping mechanisms, as assessed by Ms Lechner. This raises the principle in Verdins, meaning I must take that hardship into account.
39Your prospects of rehabilitation are perhaps reasonable fortified by the likelihood that you can return to work once released from prison.
40In sentencing you I have taken into account the principle of totality, given that the offending occurred over a relatively short period of time, and that all the conduct was similar. I have considered the legislative need for cumulation of individual sentences in a case like this but have determined that a sufficiently severe overall sentence can be imposed whilst still taking totality into account. I note that the maximum sentences for these offences are 15 years' imprisonment in each case.
41I sentence you to the following terms of imprisonment.
42For Charge 1, eight months.
43For Charge 2, five months.
44For Charge 3, four months.
45For Charge 4, six months.
46Orders for cumulation will be reflected in the following structure. After you have served nine months of the overall sentence, that is on 23 January 2025, you will be released on a recognisance release order. This is in accordance with s21(B)(ii) and s19AF(1) of the Crimes Act 1914.
47You will be under the supervision of a probation officer whose reasonable directions you must obey, and you will not be permitted to travel interstate or overseas without the written permission of the probation officer.
48You must undertake such treatment or rehabilitation programs as directed by the officer.
49The sentence for Charge 1 will begin today. The sentence for Charge 2 will begin after you have served three months of that sentence for Charge 1, that is on 23 July 2024. The sentence for Charge 3 will begin after you have served three months of the sentence for Charge 2, that is on 23 October 2024. The sentence for Charge 4 will begin on 23 January 2025. The overall sentence of 15 months will be completed on 23 July 2025.
50After you have served nine months of the overall sentence, that is on
23 January 2025, you will be released on a recognisance release order. This is in accordance with those sections that I identified a moment ago. You will be required to be of good behaviour for two years from the date of your release. You will be required under the Sex Offender Registration Act to provide your details to police every year for the rest of your life.51Now Ms Carlander, I am not sure that s6AAA of the Sentencing Act applies, it does, does it?
52MS CARLANDER-MUNRO: It is our position that it does, there's no appellate authority to that ‑ ‑ ‑
53HER HONOUR: In that case, under s6AAA if you had not pleaded guilty, I would have sentenced you to 18 months with a recognisance release order after serving 12 months.
54Now as always in a Commonwealth sentence, I need to add the rider that if the maths does not add up, please let me know.
55MS CARLANDER-MUNRO: Yes, Your Honour. If I may just confirm because my quick maths ‑ ‑ ‑
56HER HONOUR: Do you want some time to do that?
57MS CARLANDER-MUNRO: What was the overall total effective sentence?
58HER HONOUR: The overall sentence is 15 months to be released after nine months.. There is always a question as to whether the cumulation orders add up.
59MS CARLANDER-MUNRO: Yes, at a quick glance it seems that it does from my perspective, but I will look at that.
60HER HONOUR: Thank you.
61MS CARLANDER-MUNRO: Thank you.
62HER HONOUR: Now the details for the recognisance release order ‑ ‑ ‑
63MS CARLANDER-MUNRO: Your Honour, I do have a hard copy that I can partially fill out if that's preferred, or I did send the soft copy that perhaps Your Honour has already filled out.
64HER HONOUR: What I might do is leave the Bench so that you can liaise with my associate who needs to put it on the computer.
65MS CARLANDER-MUNRO: Yes, Your Honour.
66HER HONOUR: But I will just say before doing that, that the recognisance will be $1,000.
67MS CARLANDER-MUNRO: Yes.
68HER HONOUR: It's a nominal amount of course, and the good behaviour period is two years and I might have already said that.
69MS CARLANDER-MUNRO: Yes, Your Honour.
70HER HONOUR: I think that is all I need to say, and that provides the matters that need to be filled into the template.
71MS CARLANDER-MUNRO: Yes, Your Honour, I believe so.
72HER HONOUR: So that that can be done properly I will leave the Bench and I will come back as soon as that is fixed.
73MS CARLANDER-MUNRO: Thank you, Your Honour. Much appreciated.
74(Short adjournment.)
75HER HONOUR: How did you go with that onerous exercise, Ms Carlander?
76MS CARLANDER-MUNRO: Yes, good. We did come to an agreeance. We think the total number of the effective sentence adds up as it is. The only slight discrepancy we noticed was as it is written there is one month concurrency between Charges 3 and 4.
77HER HONOUR: How will I reflect that in those?
78MS CARLANDER-MUNRO: So there are two options: either, so as it is Charge 3 commences on 23 October, but that is a four month sentence so it ends on 23 February. As it is Your Honour has Charge 4 commencing one month prior on 23 January. If Your Honour wanted there to be no concurrency it should start on 23 February however, I note if it was still the six month sentence, that would expand the total effective sentence to 16 months.
79HER HONOUR: I see. Let's go with the other option, of keeping the 15 months.
80MS CARLANDER-MUNRO: In that case it can just be as it is however, just state that there is one month concurrency.
81HER HONOUR: So looking at the four dot points.
82MS CARLANDER-MUNRO: Yes.
83HER HONOUR: You are looking at now the third dot point, are you?
84MS CARLANDER-MUNRO: Sorry, looking at the third dot point ‑ ‑ ‑
85HER HONOUR: Or the second dot ‑ ‑ ‑
86MS CARLANDER-MUNRO: ‑ ‑ ‑ you could just delete the sentence that says 'by way of explanation there is no concurrency for that sentence'.
87HER HONOUR: Yes.
88MS CARLANDER-MUNRO: Then the effect is that there is one month concurrency and five months' cumulation, rather than six months' cumulation and no concurrency.
89HER HONOUR: I see. One month concurrency. Sorry, one month cumulation, was it?
90MS CARLANDER-MUNRO: One month of concurrency. So there's one month of overlap and five months of cumulation.
91HER HONOUR: I see, all right, thank you.
92MS CARLANDER-MUNRO: Yes. Thank you, Your Honour.
93HER HONOUR: All right, now what I have to do is explain the recognisance part of the order to Mr Coombs, which I have not done.
94So Mr Coombs, I just need to explain to you that the purpose and effect of the recognisance release order is to place you on probation so that you are supervised once you are released from prison, and that is for a period of six months.
95Then within two years of your release from prison you are to be of good behaviour and to complete the sex offender program within that two year period.
96If you were to fail to comply with any of the conditions of the recognisance, then you would possibly forfeit the $1,000 recognisance amount that I have fixed, and you would have to return to court.
97Finally, I need to say that this order may be discharged or varied under s20AA of the Crimes Act 1914.
98On the recognisance I think it directs you to report to Seymour Corrections Office, 32 Wallis Street, Seymour. Are there any other matters,
Ms Carlander, first of all?99MS CARLANDER-MUNRO: Nothing further, Your Honour, thank you.
100HER HONOUR: No. Ms Park, anything else?
101MS PARK: No, Your Honour.
102HER HONOUR: All right, so the document can be signed now and the sex offender registration. Ms Park, do you want to go and join my associate at the dock?
103MS PARK: Thank you, Your Honour.
104HER HONOUR: Thank you for your assistance in this matter.
105MS CARLANDER-MUNRO: Thank you very much, Your Honour.
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