R (Cth) v Cole

Case [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

  1. 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

  1. 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

  1. 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

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

Additional Offence

  1. 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

  1. It is alleged that she was…

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Details
AGLC
R (Cth) v Cole [2024] NSWDC 436
Case
[2024] NSWDC 436
Decision Date

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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