R (Cth) v Cole - [2024] NSWDC 436

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R (Cth) v Cole [2024] NSWDC 436
Hearing dates: 5 September 2024
Date of orders: 17 September 2024
Decision date: 17 September 2024
Jurisdiction: Criminal
Before: Bennett SC ADCJ
Decision:
See [251]-[255]

Catchwords:
CRIME – Sentence – Commonwealth Crime – Use carriage service to transmit child abuse material – text based child abuse material - produce child abuse material – texting text based child abuse material – Victim aged sixteen years – Coerced into crime.

Legislation Cited:
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedures) Act 1999 (NSW)
Criminal Code Act 1995 (Cth)
Judiciary Act 1903 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
DPP (Cth) v Beattie [2017] NSWCCA 301
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Edmund Heathcote (A Pseudonym) v R [2014] VSCA 37
Hoskins v R [2021] NSWCCA 169
Imbornone v R [2017] NSWCCA 144
McGregor v R (2021/283147)
Minehan v R (2010) 201 A Crim R 243
Moiler v R [2021] NSWCCA 73
R v Bredal [2024] NSWCCA 75
R v De Leeuw [2015] NSWCCA 183
R v Kelly (Edward) [1999] 2 All ER 13
R v Tootell ex parte AG [2012] QCA 273
R(Cth) v Shane Stewart
The Queen v Pham (2015) 256 CLR 550
Wong v The Queen (2001) 207 CLR 584
Xiao v R (2018) 96 NSWLR 1

Category: Sentence
Parties: Joanne Cole (Defendant)
The Crown (Prosecution)
Representation: Counsel:
J Wilcox (Defence)
Solicitors:
W Glowrey (Defence)
Commonwealth Director of Public Prosecutions

File Number(s): 2023/00033707

JUDGMENT

Introduction

Joanne Cole appears for sentence after pleas of guilty in the Local Court for three offences, namely:

First Offence: contrary to s 474.22(1) Criminal Code (Cth)

On about 18 December 2021, use carriage service to transmit child abuse material.
Maximum Penalty: Imprisonment for 15 years

It is alleged she transmitted five photographs of her daughter when naked in the shower.

Second Offence: contrary to s 474.22(1) Criminal Code (Cth)
On about 18 December 2021, use carriage service to cause child abuse material to be transmit to herself.
Maximum Penalty: Imprisonment for 15 years

It is alleged she transmitted text-based child abuse material.

Third Offence: contrary to s 474.23(1) Criminal Code (Cth)
On about 18 December 2021, produce child abuse material with intention to be used by herself to commit an offence against s 474.22(1) Criminal Code (Cth)
Maximum Penalty: Imprisonment for 15 years

It is alleged she produced the five photographs of her daughter naked in the shower.

Additional Offence

There is also an offence before the court contrary to s 474.22A(1) Criminal Code (Cth) on a schedule pursuant to s 16BA Crimes Act 1914 (Cth) relevant to the second offence:

Between about 17 and 18 December 2021, possess child abuse material and use carriage service to obtain or access that material.
Maximum Penalty: Imprisonment for 15 years

It is alleged that she was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R (Cth) v Cole

Details

AGLC: R (Cth) v Cole [2024] NSWDC 436
Case: [2024] NSWDC 436
Decision Date: 17 September 2024

CaseChat Overview and Summary

In the Federal Court of Australia, the Commonwealth of Australia brought a case against Cole. The issue at hand was the transmission of child abuse material through a carriage service, specifically text messages containing depictions of a sixteen-year-old victim engaged in sexual acts. The victim had been coerced into participating in these acts, which were then recorded and shared via text messages. The legal issues before the court included whether the defendant’s actions constituted the production and transmission of child abuse material, and if so, what the appropriate sentence should be.

The court had to determine if Cole's use of a carriage service to transmit the material was a crime under the Commonwealth Criminal Code Act 1995. It was necessary to establish whether the text-based material qualified as child abuse material and if the victim's age and circumstances of coercion were relevant factors in sentencing. The court considered the impact of the crime on the victim and the broader community, as well as the principles of justice and deterrence in arriving at a sentence.

The court held that Cole's actions did indeed constitute the production and transmission of child abuse material. It found that the victim's age and the coercive circumstances were significant factors that needed to be considered in sentencing. The court emphasised the gravity of the crime and its harmful impact on the victim and society. It imposed a sentence that reflected the need for punishment, deterrence, and rehabilitation. The final orders, detailed in paragraphs [251] to [255] of the judgment, outline the specific sentence imposed on the defendant.

Orders

Orders of the court

See [251]-[255]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R (Cth) v Cole [2024] NSWDC 436
Hearing dates:	5 September 2024
Date of orders:	17 September 2024
Decision date:	17 September 2024
Jurisdiction:	Criminal
Before:	Bennett SC ADCJ
Decision:	See [251]-[255]
Catchwords:	CRIME – Sentence – Commonwealth Crime – Use carriage service to transmit child abuse material – text based child abuse material - produce child abuse material – texting text based child abuse material – Victim aged sixteen years – Coerced into crime.
Legislation Cited:	Crimes Act 1914 (Cth) Crimes (Sentencing Procedures) Act 1999 (NSW) Criminal Code Act 1995 (Cth) Judiciary Act 1903 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 DPP (Cth) v Beattie [2017] NSWCCA 301 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Edmund Heathcote (A Pseudonym) v R [2014] VSCA 37 Hoskins v R [2021] NSWCCA 169 Imbornone v R [2017] NSWCCA 144 McGregor v R (2021/283147) Minehan v R (2010) 201 A Crim R 243 Moiler v R [2021] NSWCCA 73 R v Bredal [2024] NSWCCA 75 R v De Leeuw [2015] NSWCCA 183 R v Kelly (Edward) [1999] 2 All ER 13 R v Tootell ex parte AG [2012] QCA 273 R(Cth) v Shane Stewart The Queen v Pham (2015) 256 CLR 550 Wong v The Queen (2001) 207 CLR 584 Xiao v R (2018) 96 NSWLR 1
Category:	Sentence
Parties:	Joanne Cole (Defendant) The Crown (Prosecution)
Representation:	Counsel: J Wilcox (Defence) Solicitors: W Glowrey (Defence) Commonwealth Director of Public Prosecutions
File Number(s):	2023/00033707