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District Court 27 January 2009

R v Jones

[2009] NSWDC 8

Sexual offences
SENTENCE POSSESS CHILD PORNOGRAPHY

Citation: R v Jones [2009] NSWDC 8
Court: District Court of New South Wales
Date: 27 January 2009
Judge(s): Murrell SC DCJ

Background

The offender, a 64-year-old former Customs officer with no prior criminal history, pleaded guilty in the Local Court to two charges of possessing child pornography contrary to s 91H(3) of the Crimes Act 1900. The maximum penalty for each offence at the time of commission was five years' imprisonment, subsequently increased to ten years.

The first offence came to light on 30 April 2008 when a computer repair technician discovered images on the offender's computer and contacted police, who seized the device and found 51 images and one video. Two days later, a search warrant executed at his residence uncovered 25 compact disks containing approximately 23,000 image files and 220 video files of child pornography. Many of the images were graded at the highest levels of the Copine Scale, depicting very young children including babies and toddlers subjected to serious sexual abuse.

The offender had been exposed to child pornography during his employment as a Customs officer, where examining contraband material was part of his duties. He received no psychological counselling in connection with that work. He admitted to the forensic psychologist that he derived sexual gratification from the material and had rationalised the images as not depicting real children.

  • What sentence was appropriate for two charges of possessing child pornography, having regard to the objective seriousness of the offending and the personal circumstances of the offender?
  • What weight should be given to the mandatory 25% sentencing discount under s 17 of the Criminal Case Conferencing Trial Act 2008 following a pre-committal guilty plea?
  • Whether the sentencing objectives of denunciation, general deterrence, rehabilitation, and community protection were appropriately balanced.
  • Whether the aggravating and mitigating features under s 21A of the Crimes (Sentencing Procedure) Act 1999 were established.

Decision

Murrell SC DCJ found the second offence (2 May 2008) to be objectively very serious, given the sheer volume of material, the extreme youth of some victims, and the nature of the abuse depicted. Her Honour observed that these crimes carry a particular gravity because the victims are unlikely ever to be identified, and their psychological harm is likely to go untreated. General deterrence and denunciation were identified as particularly important sentencing considerations, reflecting the role that demand for such material plays in driving its production.

The court accepted that the offender had been initially exposed to child pornography through his employment and that he had no prior criminal record. However, his Customs background meant he was well aware the possession of such material was a serious criminal offence. His risk of reoffending was assessed as moderate, and the court found genuine prospects of rehabilitation existed provided he engaged with the recommended two-year community-based treatment programme.

Relevant aggravating factors included gratuitous cruelty, multiple victims, and a series of criminal acts. Mitigating factors included the absence of any prior criminal record, early pleas of guilty, remorse, and the offender's significant health problems, including prostate cancer and a possible unresolved post-traumatic stress disorder stemming from armed robberies in 1971. The 25% mandatory discount under the Criminal Case Conferencing Trial Act 2008 was applied to both sentences.

For the more serious second offence, the court imposed a sentence of imprisonment to be served by periodic detention (weekend detention at a specified centre) rather than full-time custody, structured with a non-parole period of 20 months and a balance of term of 7 months. The first offence was addressed by a good behaviour bond. Both dispositions were made subject to supervision by the Probation and Parole Service and mandatory treatment.

Orders Made

  • Offence of 2 May 2008: Convicted. Sentenced to imprisonment with a non-parole period of 20 months and a balance of term of 7 months (representing 3 years less the 25% discount). The sentence is to be served by periodic detention at Parramatta Periodic Detention Centre, commencing Saturday 7 February 2009. Parole conditions include supervision by the Probation and Parole Service and participation in any recommended programme or treatment.
  • Offence of 30 April 2008: Convicted. Good behaviour bond for 3 years and 9 months (representing 5 years less the 25% discount). Conditions include supervision by the Probation and Parole Service for the full term, reporting by 4pm on 30 January 2009, and participation in any recommended treatment.
  • Sentences are to run concurrently.

Key Takeaways

  • Possession of child pornography, even in the absence of direct physical contact with victims, can attract a sentence of imprisonment, particularly where the volume of material is large and its content falls at the most serious end of the Copine Scale.
  • Under s 17 of the Criminal Case Conferencing Trial Act 2008, a mandatory 25% discount applies to sentences of imprisonment and good behaviour bonds where a guilty plea is entered before committal, and that discount was applied to both dispositions in this case.
  • Sentencing for child pornography possession calls for particular emphasis on denunciation, recognition of harm to victims, and general deterrence, reflecting the role of consumer demand in sustaining the market for such material.
  • Personal circumstances, including age, serious illness, good character, and prior exposure to the material through legitimate employment, may operate as mitigating factors but do not displace the need for a custodial response to serious offending of this nature.
  • The District Court treated rehabilitation and community protection as complementary objectives, structuring the sentence to enable participation in a community-based forensic psychology treatment programme rather than imposing full-time imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 91H(3)
- Criminal Case Conferencing Trial Act 2008 (NSW) s 17
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5(1), 21A

Cases:
- Mouscas v R [2008] NSWCCA 181
- R v Gent [2005] NSWCCA 370
- R v Saddler [2008] NSWDC 48
- R v Stroempl (1995) 105 CCC (3d) (Canadian authority)