Director of Public Prosecutions v Coulter

[2024] VCC 1994

IN THE COUNTY COURT OF VICTORIA

AT BALLARAT

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-01628

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN COULTER

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JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Ballarat
DATE OF HEARING:	9 December 2024
DATE OF SENTENCE:	12 December 2024
CASE MAY BE CITED AS:	DPP v Coulter
MEDIUM NEUTRAL CITATION:	[2024] VCC 1994

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW                

Catchwords:              Sentence – plea of guilty – possession of child abuse material – premises of the accused search by police warrant, category 1 and category 2 files were found.

Legislation Cited:      Sentencing Act 1991, Crimes Act 1958

Caselaw cited:           Hutchinson v The King [2022] VSCA 217; R v Verdins [2007] VSCA 102; Crowder (a pseudonym) v The King [2024] VSCA 21.

Sentence:                  Total effective sentence of four years with a non-parole period of two years.

Section 6AAA of the Sentencing Act 1991 declaration: But for the plea of guilty, the sentence imposed would have been a term of imprisonment of six years imprisonment with a non-parole period of three years and six months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr R. Hammill	Director of Public Prosecutions
For the Accused	Mr V. Vuu	Victoria Legal Aid

HER HONOUR:

1John Coulter you have pleaded guilty to a charge of possession of child abuse material, the maximum penalty for which is 10 years' imprisonment.

2The facts and circumstances of your offending are set out fully in the prosecution opening. Briefly stated they are as follows.

3Your premises were searched under a police warrant on 27 March 2024. Police informed you that the warrant was to search the premises for child abuse material. You told police you had expected them to attend and that they would locate what they were looking for.

4You had multiple devices which were seized. Your devices were analysed, and you were in possession of 787,476 files of child abuse material. The details of which are:

·644,647 were image files categorised as category 1 child abuse material;

·13,011 were video files which were categorised as category 1 child abuse material;

·127,378 were images categorised as category 2 child abuse material; and

·2,440 were video files categorised as category 2 child abuse material.

5In category 1 there were 330,676 unique image files and 8,502 unique video files.

6In category 2 there were 72,422 unique image files and 1,323 unique video files.

7In total you were in possession of 403,098 unique category 1 files and 9,825 unique category 2 files. That is, you were in possession of 412,923 unique files of child abuse material.

8Category 1 comprises of images and videos depicting a real prepubescent child (that is under the age of 13 approximately) and the child is involved in a sex act, witnessing a sex act, or the material is focused/concentrated on the anal or genital region of the child.

9Category 2 comprises of other child abuse material not captured by category 1 involving a child who is or appears to be under 18 years of age.

10You were interviewed by police on 27 March 2024 and declined to answer questions. You were arrested and taken into custody on this date. You have remained in custody since that date.

11This matter resolved prior to a committal mention on 18 September 2024. This is a plea at the earliest opportunity. It has significant utilitarian value and has saved the community the cost of a trial and it entitles you to an appropriate sentencing discount.

12Turning to your personal circumstances.

13Your personal circumstances are set out in the reports of Mr Jeffery Cummins, psychologist, dated 13 September 2024, and Dr Karen Scally, a clinician neuropsychologist and forensic psychologist, dated 2 December 2024, and they were further developed in the submissions of your counsel, Mr Vuu.

14You were born in February 1959. You are presently 65 years old.

15You have no prior criminal history.

16You told Mr Cummins that you had had a difficult childhood. You said that your mother was abusive and uncaring. Your parents are both still living, and you also have a brother and two sisters, although one of your sisters is now deceased.

17Your father was in the army and the family was constantly relocated because of his various postings. Consequently, you attended a number of schools. You completed your Year 12 in Townsville, Queensland. You were an above average student.  By your own account you were a precocious child who had sophisticated and diverse interests. You did not fit in with your peers and sought out the company of adults. You told Dr Scally that because you developed friendships with adults you became vulnerable to abuse.

18You report having been sexually abused as a child by two males and a female. You told Mr Cummins that the abuse consisted of sexual touching and was not penetrative. You told Dr Scally the abuse began when you were five years old and that you were abused on several occasions.

19You told Mr Cummins that you began an engineering degree at Swinburne University of Technology in Melbourne. You told Dr Scally that you began a degree at Monash University in music, philosophy, mathematics and literature. It may be that you began both degrees, but in any event notwithstanding your intelligence you did not complete any tertiary education.

20You joined the army when you were 19 but left 18 months later.

21You were married in 1985 when you were 24. You have one daughter, Margaret, who is now 35 years old. You and your wife separated when Margaret was a child. Your wife died in 2004. Your daughter Margaret remains supportive of you and wrote a character reference which was tendered at your plea.

22You have had various manufacturing jobs but have been in receipt of a disability pension since 2002.

23You told Mr Cummins you had been diagnosed with autism spectrum disorder (ASD) burnout, Asperger’s and post-traumatic stress disorder (PTSD). You said your psychological difficulties were attributable to your unhappy childhood and to workplace trauma which included you having witnessed multiple workplace accidents.

24You suffer from a chronic dental infection and were prescribed strong opioid painkillers in 2019. You told Mr Cummins you had also resorted to drinking one or two bottles of vodka a week to relieve the pain.

25After the death of your wife, you had another intimate relationship with a woman that lasted for three years and ended in 2016. You have been living a significantly isolated life for around seven years. Your only support is your daughter. You told Dr Scally you were drinking heavily when you offended.

26Mr Cummins gives the opinion that you are suffering from a major depressive disorder which is currently untreated and complex PTSD which has never been treated. He was also of the opinion that you present as having an obsessional personality style and most probably suffer from a mixed personality disorder.

27On your offending Mr Cummins says:

He acknowledged he was pleading guilty to one count of possession of an excessive volume of child abuse images and videos. He resisted suggestions on my behalf that the volume of material confirmed he was sexually attracted to underage females. Rather, he emphasised his attraction was with what he described as 'artistic erotica' and that his offending focused on the sourcing, collection and filing of relevant material. In my opinion he is at a very early stage in the process of coming to terms with his offending. In my opinion his offending would indicate that he attracts the diagnoses of paedophilia and hebephilia (sexual attraction to persons who are post-pubescent but under the legal age).[1]

[1]        Report of Mr J Cummins dated 13 September 2024 at page 8,  paragraph 50.

28Mr Cummins gives the opinion that there was probably some nexus between your offending and your mental health conditions in that these conditions inevitably impact on judgment, reasoning and perception. He gives the opinion that your overall mental health will most probably decline in custody.

29Dr Scally conducted a psychological and neuropsychological evaluation on you.

30Her neuropsychological assessment found you to be of superior intelligence with only some deficiency in executive functioning although still within low-average range and Dr Scally gives the opinion that there was no evidence that any deficits would impact on your daily functioning.

31Based on her clinical interviewing and psychological testing she gives the opinion that you meet the criteria for a provisional diagnosis of PTSD and likely complex PTSD. She gives the opinion that you meet the criteria for a major depressive disorder and that you have an historical diagnosis of Autism Spectrum Disorder. She states:

… while he currently presents with significant physiological symptoms of anxiety these appear to be best encapsulated by a provisional diagnosis of PTSD in combination with his ASD (autism) and significant current situational stress.[2]

[2]        Report of Dr Karen Scally dated 2 December 2024 at page 9, paragraph 44.

32On your offending you told Dr Scally that you were driven by nostalgia to revisit the time of your sexual awakening and viewed images which you described as 'tasteful erotica'. You also told her that you were 'addled' all the time through your offending because of the use of alcohol and medication.

33Dr Scally gives the opinion that your autism would not interfere with your ability to understand the wrongfulness of your conduct and she did not see any relationship between your cognitive functioning and your offending, except that the volume of your offending could be explained by your autism given the intensity of your consumption and given it seems you became obsessional. She states however that the reason for your interest in child abuse material is your deviant sexual interests which was driven by your paedophilic interest.

34On the question of remorse, she gives the opinion that you have a limited appreciation for the impact of your offending on your victims but you did report to her some feelings of disgust and some empathy for the children abused.

35On the question of risk of future offending Dr Scally says it is not possible to assess your risk of sexual reoffending due to the lack of available risk assessment tools for offenders who have only a non-contact sexual offence. However, notwithstanding this she gives the opinion that with interventions to address your mental health and drug and alcohol consumption, you likely fall into the low risk category for sexual offending, without such treatment your risk of reoffending remains higher. Because of your personality she notes you may be reluctant to engage in treatment.

36On the effects of incarceration upon you she notes that your autism will make sharing a cell with others difficult and may cause you significant distress and anxiety. Dr Scally gives the opinion that you would be better placed in a solitary cell. She gives the opinion that your conditions themselves will not deteriorate in custody, but your overall mental state is likely to deteriorate as you cannot tolerate shared living conditions.

37I turn now to the submissions of the parties.

38And I begin with the matters raised with me by your counsel Mr Vuu.

39Mr Vuu relied first on your plea of guilty which has utilitarian value and is also indicative of some remorse on your part. He further submitted you expressed some remorse in your statements to Dr Scally, but he accepted he could not submit that you had exhibited full and insightful remorse.

40He submitted that you came before the court at the age of 65 for the first time and as a person of hitherto good character.

41He submitted at the time of your offending you were an isolated individual living in squalid conditions and consuming substantial amounts of prescription medication and alcohol to deal with your chronic dental pain.

42He relied on the reports of Mr Cummins and Dr Scally to submit all limbs of Verdins[3] were engaged in sentencing you. On Verdins limb 1 which acts to reduce moral culpability he relied on the conclusion of Dr Scally that the intensity of your consumption of child abuse material is explained in part by your autism.

[3]        R v Verdins [2007] VSCA 102 (“Verdins”).

43In terms of the assessment of the gravity of your offending Mr Vuu acknowledged the very high number of files in your possession but submitted the charge covers only one day although he acknowledged your offending had to extend beyond a single day. He submitted that you had deleted a number of files and in this way you had 'disavowed' this material and he submitted this lessened your moral culpability to some extent. He submitted in part your motivation was to collect files and as I understand the submission you did not necessarily view all of the material in your possession, which Mr Vuu argued lessened to some extent your moral culpability.

44He referred me to the case of Hutchinson[4] in which the child abuse material was categorised into six sub-categories which included categorisation of material of a highly depraved nature including acts of sadism and bestiality. Your offending was not so classified but after some discussion with me it remains undisputed that your offending involves looking at a vast amount of child abuse material featuring real children under 13 involved in actual sexual acts.

[4]        Hutchinson v The King [2022] VSCA 217 (“Hutchinson”).

45Mr Vuu also relied on Hutchinson as a comparator case. In that case the Court of Appeal upheld the sentence of the sentencing judge of four years' imprisonment on a charge of possession of child abuse material. In that case the appellant possessed over 300,000 files, he pleaded guilty at the earliest opportunity and there was some application of Verdins limbs 5 and 6. The impact of COVID on custodial conditions was a relevant matter in mitigation in that case. Mr Vuu also referred me to the case of Crowder[5] in which the Court of Appeal upheld a sentence of 20 months on a charge of possession of child abuse material.

[5]        Crowder (a pseudonym) v The King [2024] VSCA 211 (“Crowder”).

46Mr Vuu submitted in accordance with Dr Scally’s conclusion that your risk of reoffending was low.

47

He submitted notwithstanding the matters raised in mitigation the only appropriate sentence was a term of imprisonment consisting of a head sentence and a

non-parole period. He urged me to consider a longer than usual non-parole period in order to foster your rehabilitation in the community.

48

In response Mr Hamill on behalf of the Director submitted that the only appropriate sentence was a term of imprisonment consisting of a head sentence and a

non-parole period. Mr Hamill did not dispute there was some application of Verdins principles. But he submitted both Mr Cummins and Dr Scally in the first place attributed your offending to a diagnoses of deviant or paedophilic sexual interests. He submitted on the question of your risk and rehabilitation Dr Scally’s opinion that you posed a low risk of sexual reoffending was heavily predicated on you accepting treatment.

Principles relevant to Sentencing

49Appellate courts throughout Australia have stated the following general principles for offences involving child abuse material apply to sentencing:

(a)   General deterrence is the primary sentencing consideration for offending involving child abuse material given the prevalence and ready availability of pornography involving children, particularly on the internet, and the need to protect children from sexual abuse;

(b)   There is a paramount public interest in promoting the protection of children as accessing and possessing child pornography is not a victimless crime, the possession of child abuse material creates a market for the continued corruption and exploitation of children, and children are sexually abused in order to supply the market;

(c)   The fact that an offender has no relevant prior convictions carries less weight in sentencing for child pornography offences;

(d)   Offending involving child abuse material occurs on an international level, and the advent of the internet as a means to access child abuse material means both that such offending is becoming increasingly prevalent, and that it is difficult to detect, given the anonymity the internet can provide;

(e)   The fact that an offender was not involved in the distribution or sale of child abuse material, does not mitigate the offending. However, the fact that an offender did pay for the acquisition of child exploitation material can aggravate the offence;

(f)    The subjective circumstances of an offender must not overshadow the objective gravity of the offence;

(g)   In a case of dissemination, the number of persons to whom the material was distributed is relevant; and finally

(h)   Whilst the volume is an indicator of the seriousness of offence, the type of material and the degree of its depravity is the primary focus and quantity is the secondary focus.

50Bearing in mind these applicable principles I now turn to my conclusions.

51First, my assessment of the objective gravity of your offending and your moral culpability.

52Any assessment of the objective gravity of your offending cannot begin without first taking into account the enormous amount of child abuse material which was in your possession. The majority of which was category 1, which as stated, involves the abuse of real children under the age of 13. You are charged on a single day but this is artificial and there can be no doubt that you consumed this material over an extended period of time, although how long cannot be established with any certainty.

53The children typically involved in the production of child abuse material are vulnerable children from impoverished countries without protection from abuse and exploitation.

54You must understand that your offending involves the abuse of countless vulnerable children. It is impossible to say how many children were your victims. These children are your victims, not because you yourself abused them, but you watched their abuse and in this way your consumption fuelled the market in the production of child abuse material.

55The objective gravity of your offending is very high, and your moral culpability is also very high. Having said that I am prepared to moderate your moral culpability to a modest extent in accordance with the opinion of Dr Scally that your consumption can be explained by your obsessional tendencies attributable to your autism but it is clear that first and foremost your offending is attributable to your deviant and paedophilic interests and that you understood that what you were doing was wrong.

56I reject the submission that your deletion of the material in any way moderates your moral culpability, or that you were motivated only to collect child abuse material as opposed to being purely motivated to consume child abuse material in the pursuit of sexual gratification. Neither of these considerations in any way moderates your moral culpability for the truly astonishing amount of child abuse material that was found in your possession.

Application of Sentencing Principles

57The sentence I impose must unequivocally denounce your conduct and give effect to the law's obligation to protect children from exploitation and abuse. I must ensure that you are adequately punished for your offending. It is the duty of the Court to do what it can to end the pernicious trade of child sexual exploitation involving as it so often does children who are unprotected and living in impoverished circumstances, the Court performs this duty be sending a clear message to those who commit crimes which involve such morally depraved conduct that they will be punished.

58The sentence I impose must also send the message to you that you must never behave in this disgraceful way again.

59I take into account your plea of guilty and your hitherto good character but as the authorities make clear these considerations cannot detract from adequately punishing you for the objectively very grave nature of your offending.

60I have given my conclusions on the application on Verdins limb 1. I also find that all other limbs of Verdins are engaged in sentencing you. The application of both general and specific deterrence are moderated to a modest extent in your case but both general and specific deterrence remain engaged in sentencing you. Indeed, general deterrence remains the predominant sentencing consideration.

61Prison is and will remain a very difficult environment for you. I accept Dr Scally’s conclusion that your mental health conditions, which are static ones, will not deteriorate in custody, nevertheless custody may cause you to experience significant distress because of your autism and because of this I accept that Verdins limbs 2,5 and 6 are engaged in sentencing you.

62You have expressed some limited remorse and empathy. I agree with the prosecution submission that the conclusion of Dr Scally that you are a low risk of sexual reoffending is contingent on you receiving treatment.

63You are 65 years old and in custody for the first time. You are intelligent. You understand your situation and why it has come about. Surely now you are capable of understanding that you must live offence free in the future and seek treatment. You have the support of your daughter. I am prepared to assess your prospects of rehabilitation as reasonable.

64Taking into account all the matters I am required to under the Sentencing Act 1991 (Vic) and matters personal to you I intend to sentence you as follows. You can remain seated in the circumstances, Mr Coulter.

65On Charge 1 you are convicted and sentenced to four years' imprisonment. I set a non-parole period of two years.  If you are granted parole at the earliest opportunity this will give you a significant period of time under supervision on parole which in my view will help your rehabilitation back into the community.

66You have served 260 days of pre-sentence detention.

67

Pursuant to s6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty I would have sentenced you to a total effective sentence of six years with a

non-parole period of three years and six months.

68You are a registered sex offender for eight years.

69I make the disposal order sought by the prosecution.

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