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District Court 26 July 2013

R v Jack

[2013] NSWDC 171

Sexual offences
CRIMINAL SENTENCE AFTER TRIAL POSSESS CHILD ABUSE MATERIAL NO REMORSE

Citation: R v Jack [2013] NSWDC 171
Court: District Court of New South Wales
Date: 26 July 2013
Judge(s): Murrell SC DCJ

Background

A jury convicted the offender on 2 May 2013 on five counts arising from his use of a home computer to access, possess, and share child pornography and child abuse material over a period of approximately eighteen months between mid-2009 and January 2011. The offending took place at Peakhurst, New South Wales. Four of the five counts were Commonwealth offences under the Criminal Code 1995 (Cth), and one was a State offence under the Crimes Act 1900 (NSW).

The offender downloaded a commercially available file-sharing program called GigaTribe, initially on a free plan and later on paid subscriptions, which he used to make child pornography material accessible to other users online. He also purchased encryption software to conceal the material from other users of his own computer. At the time of his arrest in January 2011, he was found in possession of over 23,000 files, comprising approximately 22,000 images and approximately 1,300 multimedia files.

The material was classified across six categories reflecting the severity of sexual content depicted. It ranged from erotic posing (Category 1, the largest volume) through to penetrative sexual activity between adults and children (Category 4) and sadism or bestiality (Category 5). The children depicted were almost exclusively male, prepubescent up to approximately fourteen years of age. At the time of sentencing, the offender was thirty-two years old, educated to postgraduate level, and had no prior criminal record.

  • What was the appropriate sentence across five counts, having regard to the objective seriousness of the offending, the volume and nature of the material, and the offender's personal circumstances?
  • Whether the offender was entitled to any discount for conceding at trial that the material fell within the statutory definitions of child pornography and child abuse material.
  • Whether the offender's attempt during trial to blame a third party (Mr H) for the offending was a relevant aggravating factor for sentencing purposes.
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory default proportion under the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • How the principle of totality should apply to structure partially cumulative and partially concurrent sentences across five counts.

Decision

Her Honour assessed the objective seriousness of the offending as substantial but not at the most serious end of the spectrum. Relevant factors included the very large quantity of material (over 23,000 files), the range of categories up to and including sadistic content, the ages of the children depicted (prepubescent through to approximately fourteen years), and the duration of offending. The motive for making material available was participation in sharing arrangements with like-minded individuals, which her Honour noted was a common feature of distribution offences of this type. There was no financial profit involved.

Her Honour accepted that the offender was entitled to a small discount because he had admitted from the outset that the material constituted child pornography or child abuse material within the relevant legislative definitions, sparing the court the task of examining it to confirm that threshold. No discount for remorse was available: the offender maintained throughout that he was not guilty of any offence.

Regarding the offender's attempt to implicate a third party (Mr H) through a fabricated confession recorded on a mobile phone, her Honour noted the jury had entirely rejected that account and agreed with its assessment. However, she declined to treat this conduct as an aggravating factor for sentencing, noting she was not sentencing the offender for perjury.

Her Honour found special circumstances justifying a reduced non-parole proportion, given that this was the offender's first period of imprisonment and the totality of the sentences imposed. The sentences were structured with a combination of concurrent and cumulative terms to reflect both the distinct nature of each count and the principle of totality.

Orders Made

  • Count 1 (accessing child pornography, 1 July 2009 to 14 April 2010): fixed term of 12 months from 2 May 2013 to 1 May 2014.
  • Count 2 (accessing child pornography, 15 April 2010 to 26 January 2011): fixed term of 18 months from 2 November 2013 to 1 May 2015.
  • Count 3 (making material available, 18 January 2010 to 14 April 2010): 18 months from 2 May 2014 to 1 November 2015, non-parole period expiring 1 May 2015.
  • Count 4 (making material available, 15 April 2010 to 26 January 2011): 21 months from 2 November 2014 to 1 August 2016, non-parole period expiring 1 May 2015.
  • Count 5 (possessing child abuse material, State offence): 21 months from 2 May 2014 to 1 August 2016, non-parole period expiring 1 May 2015.
  • Effective total sentence: 3 years and 3 months, with a non-parole period of 2 years. The offender was eligible for release to parole on 1 May 2015.

Key Takeaways

  • The District Court applied the framework from R v Gent [2005] NSWCCA 370, which directs sentencing courts to consider the nature and content of the material, the ages of children depicted, the volume of material, the number of distinct child victims, and whether the offender profited financially.
  • A small sentencing discount is available where a defendant admits, before or at trial, that material constitutes child pornography within the statutory definition, even where the defendant otherwise contests guilt, because this produces a utilitarian benefit by relieving the court of examining the material.
  • Fabricating a false account to implicate a third party during trial did not, on the facts here, constitute a separate aggravating factor at sentencing, where the Crown did not press it as one and the conduct was distinct from the offending charged.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), the standard non-parole proportion can be reduced where special circumstances exist; the offender's first period of imprisonment and the effect of totality across multiple sentences were accepted as sufficient special circumstances.
  • In applying the totality principle to multiple counts spanning overlapping periods, the court structured sentences to be partially cumulative and partially concurrent, reflecting both the discrete nature of each charge and the need to avoid a crushing overall sentence.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 474.19(1)(a)(i) and 474.19(1)(a)(iii)
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Hili v R [2010] HCA 4
- Oliver & Ors [2002] EWCA Crim 2766
- R v Gent [2005] NSWCCA 370