STATE OF TASMANIA v WILLIAM GRATTAN COLE                            22 JULY 2020

COMMENTS ON PASSING SENTENCE                                                            PEARCE J

 William Cole, you plead guilty to one count of possessing child exploitation material contrary to the Tasmanian Criminal Code, s 130C, and one count of possessing bestiality material contrary to the Classification (Publication, Films and Computer Games) Enforcement Act 1995, s 74(b).

On 27 December 2016 the police searched your house in Chudleigh for an unrelated reason. A laptop and hard drive were seized. When they were analysed by the police, 152 images and 104 videos were discovered which were child exploitation material:

  • 106 images and 15 videos were Category 1, including images depicting children with no sexual activity but which were sexually suggestive or sexual in nature;
  • 9 images and 22 videos were Category 2, including images depicting solo masturbation by a child or sexual acts between children in which no penetration occurs, although including penetrative use of sex toys by the victim;
  • 29 images and 5 videos were Category 3, which includes images or movies depicting non-penetrative sexual activity between adults and children, including mutual masturbation;
  • 8 images and 62 videos were Category 4, which includes penetrative sexual activity between adults and children.

Also found were six videos depicting bestiality. Those videos did not depict children and are the subject of the possessing bestiality material charge.

When the search was conducted you were aged 23. You declined to be interviewed, but you co-operated with the police by providing the password to your computer. Because the material was confined to your personal laptop, which was password protected, there was little chance that the material would be seen by anyone else. Later, when the police had difficulty in accessing the computer hard drive, you helped them to do so. You are now aged 26. You have no prior convictions related to child pornography, but in 2018 you were sentenced by a magistrate for indecently assaulting a girl aged five or six in 2014. That conviction is relevant because it suggests a sexual interest in children, and a need to deter you from acting on that interest. Conversely, the conduct for which you are now to be sentenced occurred in 2016 and there is no indication of any other relevant offending since then.

Your personal circumstances were explained by your counsel. Issues concerning your mental health and abuse of substances led me to obtain a pre-sentence report directed to the possible benefit of supervision in the community following your release. What emerges from the submissions and the report is this. Your parents were divorced when you were very young. You have had virtually no relationship with your father and you were brought up by your mother with whom you lived until 2018. You completed year 10 and then completed an apprenticeship in wood machining and cabinet making. However you have longstanding mental health problems compounded by alcohol and illicit substance abuse. Regrettably, you ceased work in 2015 and your mental health deteriorated. You began to use cannabis as a substitute for alcohol in 2016. When you displayed psychotic symptoms, you were admitted to hospital and diagnosed with schizophrenia. The deterioration in your personal circumstances continued in 2018 when you were asked to leave your mother’s house, and since then your accommodation has been unstable. There was some management of your mental health by Community Mental Health as part of the supervision ordered by the magistrate in 2018, but it has gone downhill since that ceased, and your compliance with the supervision was generally poor. You began using methylamphetamine in 2019.

Much of which I have recited post-dates the crimes for which you are to be sentenced. It is not submitted that your mental health affects your moral culpability for your crime. I have not seen any expert report about your condition, but the pre-sentence report refers to two such reports, and I am prepared to accept that someone who suffers with the condition from which it is asserted you suffer may find prison difficult, especially in the current circumstances. However I do not regard it as a factor which materially affects the sentence I intend to impose. The pre-sentence report is directly relevant to how a sentencing order may allow for your treatment and supervision following your release. The author is not confident that you will comply with any order I make. That is so because of your past poor compliance, your continued use of illicit substances, your mental health concerns and your plan to live in a remote residential location without access to transport. Such matters impact on the level of risk you may pose to the community. Moreover, even if I were to order supervision, no programs for offenders convicted of crimes of a sexual nature are presently available.

It is in your favour that you have pleaded guilty. It indicates some contrition and acceptance of responsibility. At a time when trials are delayed, the plea of guilty carries additional weight. The co-operation with police to which I have already referred is also in your favour. Delay is also a mitigating factor. It was a year before a complaint on oath was issued and you were arrested. It was a further year before a substitute complaint was made. You did not appear in court for the first time until January 2019. The delay was not attributable to you. You have had these charges, and the prospect of imprisonment, hanging over your head for some time.

It is now well recognised that child pornography offences put children everywhere at risk of grave sexual abuse by encouraging the creation of child pornography. Although the overall number of images is not large compared to some cases, all of it had the capacity for harm, and there were a significant number of videos in the most serious category. The children depicted in the material you possessed are real victims. They suffer terrible harm. It is not possible to count the number of children depicted in this case, but there must have been many.

No sentence other than a sentence of imprisonment is appropriate. To ensure adequate punishment and deterrence some of the term is to be actually served. However I conditionally suspend the balance of the term as an incentive for you not to re-offend.

William Cole, you are convicted on each count. I order that the Acer Aspire laptop and hard drive are forfeited to the State. I am not satisfied that you do not pose a risk of committing a reportable offence within the meaning of that term in the Community Protection (Offender Reporting) Act 2005 in the future. I make an order directing that the Registrar cause your name to be placed on the Register and that you comply with the reporting obligations under the Act for a period of four years from your release. I impose one sentence. You are sentenced to imprisonment for 10 months from 25 May 2020. I suspend six months of that term for 18 months from your release. It is a condition of that order that while it is in force you do not commit any offence punishable by imprisonment. If you breach that condition then a court must order that you serve that term unless it is unjust.