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District Court 5 April 2018

R (Cth) v James Michaell Hutchinson

[2018] NSWDC 80

Sexual offences
CRIMINAL LAW POSSESS CHILD ABUSE MATERIAL OFFENCE PLEA OF GUILTY SENTENCE MITIGATING FACTORS AGGRAVATING FACTORS

Citation: R (Cth) v James Michaell Hutchinson [2018] NSWDC 80
Court: District Court of New South Wales
Date: 5 April 2018
Judge: Judge AC Scotting

Background

The offender, referred to by the pseudonym JMH, was a 31-year-old civil engineer living alone on the Central Coast of New South Wales with no prior criminal history. Over a period spanning 2015 to 2016, he engaged in sexualised online communications with multiple male teenagers via the KIK Messenger application and Skype, posing in some instances as a teenage or young adult female using a false profile. He solicited and received explicit images from these minors.

Australian Federal Police arrested JMH in July 2016 after receiving information about an adult communicating online with a 15-year-old male. A search of his electronic devices revealed 509 files of child abuse material, including images and videos spanning all five categories of the Child Exploitation Tracking System (CETS), with the most serious categories represented.

JMH pleaded guilty in the Local Court to one count of possessing child abuse material under New South Wales law and two counts of using a carriage service to transmit child abuse material under Commonwealth law. The matter came before the District Court for sentencing.

  • What was the appropriate sentence, having regard to the objective seriousness of the offences, the nature and volume of the material, and the offender's personal circumstances?
  • How should the principles of totality and parity apply across multiple offences sentenced together?
  • What weight should be given to mitigating factors, including a guilty plea, remorse, psychological condition, and engagement with treatment?
  • What specific and general deterrence considerations applied?
  • Whether a partially suspended sentence was appropriate, and what conditions should attach.

Decision

Judge Scotting accepted the agreed facts and considered the offences to be of significant objective seriousness. The possession charge involved 509 files of child abuse material across all five CETS categories, including videos depicting pre-pubescent children in serious sexual situations. The transmission offences involved the offender actively soliciting explicit images from minors, including a 15-year-old identified victim, using deception and false personas to manipulate those children.

The Court received and considered a Victim Impact Statement from the identified victim, who described deterioration in his relationship with his parents, difficulty trusting online interactions, and adverse effects on his self-image and relationships. The Court also considered pre-sentence reports indicating the offender was assessed as medium to high risk of reoffending on the Static 99R tool, and multiple psychological reports from Dr Mark Milic, who described the offender's genuine engagement with treatment and attributed some of the conduct to a complex sexual identity development.

On mitigation, the Court weighed the guilty plea, the offender's lack of prior convictions, his family support, his engagement with psychological treatment prior to sentencing, and his expressed remorse. The Court also took into account that the offender had been in custody on remand for four days and had resigned from his profession following his arrest. Against these factors, the Court weighed the volume and seriousness of the material, the premeditated and deceptive nature of the conduct, the use of technology to disguise his identity, and the harm caused to identifiable and unidentifiable child victims.

Applying the principles of totality and parity, the Court imposed sentences that involved periods of actual imprisonment, after which the remaining terms were suspended upon the offender entering recognisances with supervision conditions directed specifically at sex offender treatment.

Orders Made

  • Possession offence (s 91H Crimes Act 1900): Sentence of imprisonment for a term to be served concurrently with the Commonwealth offences, with conditions including supervision and sex offender treatment.
  • First transmission offence (s 474.19(1) Criminal Code Act 1995 (Cth)): 12 months imprisonment, suspended after 3 months on 1 June 2018, upon entry into a recognisance of $500 to be of good behaviour for 2 years, subject to compliance with Community Corrections supervision and sex offender treatment directions.
  • Second transmission offence (s 474.19(1) Criminal Code Act 1995 (Cth)): 12 months imprisonment commencing 1 September 2018, suspended after 3 months on 30 November 2018, upon entry into a recognisance of $500 to be of good behaviour for 2 years, on the same conditions.
  • The minimum term of actual custody across all offences was 8 months, with release on 30 November 2018.
  • Breach of either recognisance could result in a fine, extension of the bond, revocation and imprisonment for up to 9 months per offence, or another penalty.

Key Takeaways

  • The District Court treated the volume and CETS categorisation of child abuse material, combined with active and deceptive solicitation of images from minors, as significantly aggravating factors going to objective seriousness.
  • Engagement with psychological treatment prior to sentencing, a guilty plea, and the absence of prior convictions can operate as meaningful mitigating factors even in serious child exploitation offences, though they do not displace the need for actual custodial time.
  • Partially suspended sentences under s 20(1)(b) of the Crimes Act 1914 (Cth), combined with supervised sex offender treatment conditions, remained available sentencing tools in Commonwealth child exploitation matters as at April 2018.
  • A medium to high Static 99R risk assessment did not of itself preclude the court from imposing a community-based supervisory sentence, particularly where the offender had already commenced treatment and demonstrated engagement.
  • The totality principle requires the court to consider the combined effect of multiple sentences to ensure the aggregate is proportionate to the overall offending, even where each individual offence might justify a longer standalone term.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 91H (possess child abuse material)
- Criminal Code Act 1995 (Cth), s 474.19(1) (use of carriage service to transmit child abuse material)
- Crimes Act 1914 (Cth), ss 16A, 16A(1), 16A(2), 17A(1), 20(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5

Cases:
- Director of Public Prosecutions v D'Alessandro [2010] VSCA 60
- Johnson v The Queen (2004) 78 ALJR 616
- R v El Karhani (1990) 21 NSWLR 370
- R v Porte [2015] NSWCCA 174