STATE OF TASMANIA v WILLIAM GRATTAN COLE 28 FEBRUARY 2022
COMMENTS ON PASSING SENTENCE PEARCE J
William Cole, on 22 July 2020 you pleaded 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). You were sentenced to imprisonment for 10 months from 25 May 2020. Six months of that term was suspended for 18 months from your release.
It is a condition of every order suspending the whole or a part of a sentence of imprisonment, that the offender does not commit another offence punishable by imprisonment during the period the order is in force. You admit that you have breached a condition of the suspended term imposed on you by committing other offences
At the time you were sentenced an order was made directing that the Registrar cause your name to be placed on the Register under the Community Protection (Offender Reporting) Act 2005 that you comply with the reporting obligations under the Act for a period of four years from your release. Those reporting obligations included that you report any change in personal details within seven days of the change. Your personal details include the address at which you generally reside, details of any email addresses you used or intended to use, and details of any code required to enable the Registrar to gain access to data stored on any mobile telephone you used or intended to use. Failure to comply with your reporting obligations is, under s 33 of the Act, an offence punishable by imprisonment.
You were released after allowance of one month remission on 24 August 2020. On 19 May 2021 you were released from prison having served a sentence for other offences to which I will refer in a moment. In breach of your reporting obligations you failed to advise the Registrar that you were homeless. Perhaps more significantly, when the police spoke to you on 27 June 2021 it emerged that you had changed the PIN on your phone without reporting that change, and that on 20 May 2021, the day following your release, you had created and used a new Gmail account without informing the Registrar.
In addition, you committed other offences. On 11 June 2021 you stole a laptop from JB Hi-Fi. On 25 June 2021 you stole two handbags from Myer. On 13 and 16 August 2021 you failed to comply with the reporting condition on your bail, and on 13 October 2021 you, in breach of bail, failed to appear in the Devonport Magistrates Court.
All of those offences are punishable by imprisonment. You have been in custody since 8 December 2021. You pleaded guilty before a magistrate on 24 January 2022 and you are to be sentenced on 3 March 2022. The result is that I must activate the sentence held in suspense unless of the opinion that it would be unjust. Your personal circumstances were described in detail in the original sentencing comments and it is not necessary to repeat all of them. You are now aged 28. You have longstanding mental health problems compounded by alcohol and illicit substance abuse. However it was not suggested that your mental health reduced your culpability for what were serious offences. The offences, when considered in light of an earlier offence of indecent assault of a child, indicated a sexual interest in children and a strong need to protect the public.
The starting point when a suspended sentence is breached by other offending is that the sentence should be activated. In deciding whether it is unjust to do so the Court must consider and weigh all the circumstances, but the most important factors are:
- the nature and circumstances of the offences for which the sentence was originally imposed;
- the nature and gravity of the breach in comparison to the original offences and whether activation of the suspended sentence may represent a disproportionate response;
- the lapse of time between the imposition of the suspended sentence and the breach;
- whether there is any, and if so what, indication of reform and rehabilitation. That is, whether the suspended sentence may be having its desired effect.
It is submitted on your behalf that to activate all of the suspended part of the sentence would be a disproportionate response to the new offending, some of which was of a different nature. I accept that it might be said that some of the new offences arise from your difficult personal circumstances following your release in May 2021 rather than as an indication of any continuing risk. There is some merit in that argument were it confined to the failure to report in breach of bail and the single failure to appear. It may even extend to the stealing charges. Given that you were homeless it is also easy to understand the difficulty of complying with the residential reporting condition. However the same does not apply to the phone and the email, which are in each case clear and relevant breaches of your obligations. You claim that the phone PIN was changed only to make it easier to remember, but no explanation is offered for the new email account. These are not other child exploitation material offences but they are relevant to offending of that type.
It is not the first occasion you offended following release from the sentence I imposed. On 19 May 2021 you pleaded guilty before a magistrate to a number of offences, some of which were committed not long after your release. On 29 November 2020 you failed to comply with three of the conditions of the reporting order and on 1 December 2020 you breached a condition of bail imposed on other charges by failing to appear in the Magistrates Court. An application was made on that occasion to breach the suspended sentence but no order was made. You were on notice however of the possible consequences of further breach, particularly if the breach was a further breach of the reporting order. There is no strong indication of reform.
I have concluded that the suspended sentence should be activated. However, activation of the whole term would be unjust in one respect. Had I imposed the full 10 month sentence at the outset I would likely have allowed for parole after six months. You have served three months. The length of the remaining term precludes a parole order. I have no way of knowing whether parole would have been allowed, but the fact that you were granted remission suggests that there is a good chance it may have been. On the other hand, the new email was created almost as soon as you were released. I propose to deal with the issue, and ameliorate the potential injustice, by making an order for a substituted sentence which will require you to serve a further four months but further suspending the balance. That is marginally longer that what would have been the original non-parole period but that is something you have brought on yourself. The further suspended term will create a continuing incentive for you to not commit offences and to comply with your reporting obligations. Nothing I have said is intended to fetter the sentencing discretion of the magistrate for the offences for which you are still to be sentenced.
William Cole, in place of the suspended six month term I order a substitute sentence of imprisonment for six months from 8 December 2021, two months of which is suspended for 18 months from today. It will remain a condition of that order that while it is in force you do not commit a sentence punishable by imprisonment. The reporting order under the Community Protection (Offender Reporting) Act 2005 is unaffected and thus will remain in place for four years from your release date which was 24 August 2020.