AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 1 May 2020

R v Jessop

[2020] NSWDC 313

Sexual offencesPublic order & justice offences
CRIME SENTENCE COMMONWEALTH AND STATE OFFENCES

Citation: R v Jessop [2020] NSWDC 313
Court: District Court of New South Wales
Date: 1 May 2020
Judge: Bourke SC DCJ

Background

The offender had a prior conviction from February 2015 for possessing child abuse material, for which he received a 20-month sentence with a 12-month non-parole period. That conviction placed him on the Child Protection Register as a registrable person, requiring him to comply with ongoing reporting obligations. He had subsequently been convicted in 2017 of six further failures to comply with those obligations, receiving two-year good behaviour bonds in the Local Court.

In May 2019, police attended the offender's home for a routine compliance inspection under the offender registration legislation. During that visit, police examined his iPhone and iPad with his written consent. On his iPhone, police found that his Instagram account had "liked" seven images of female children, which were classified as category 2 child pornography under the Interpol Baseline Scale. The images depicted girls aged approximately 10 to 15 years in sexualised poses or with exposed areas of their bodies, including two digitally created images.

Police also discovered that the offender had been staying at his girlfriend's address without reporting it, had failed to report contact with her minor children, and had failed to report changes to his social media accounts. These omissions gave rise to three further charges of failing to comply with reporting obligations under the New South Wales registration legislation. His prior good behaviour bonds were also before the court following admissions of breach.

  • Whether the Commonwealth offence of using a carriage service to access child pornography was made out by the act of "liking" images on Instagram
  • What sentences were appropriate for the Commonwealth offence and the three new State reporting obligation offences, having regard to the guilty pleas and the offender's history
  • What discount applied to the guilty pleas, given the timing of the indications given to the Crown
  • How the prior good behaviour bonds should be dealt with following the admissions of breach
  • Whether aggregate sentencing was appropriate for the State offences and how totality principles should be applied

Decision

The District Court sentenced the offender on one Commonwealth offence and three State offences to which he had pleaded guilty on indictment, and re-sentenced him on the six original State offences for which his good behaviour bonds were revoked.

On the Commonwealth count of using a carriage service to access child pornography, the court found that a sentence of imprisonment was the only appropriate penalty. The court allowed only a 10% discount for the guilty plea, reduced from the standard 25%, because the offender's legal representatives had informed the Crown just five days before trial that the matter was unlikely to proceed as a contested hearing. The court imposed 14 months' imprisonment from 30 November 2019, with a recognisance release order after eight months under s 20(1)(b) of the Crimes Act 1914.

For the three new State offences of failing to comply with reporting obligations (counts 2, 3 and 4 on the indictment), the court was again satisfied that no penalty other than imprisonment was appropriate. A 25% discount was allowed for those pleas. An aggregate sentence of 15 months with a non-parole period of 10 months was imposed, commencing 30 August 2019.

On the six revoked good behaviour bonds, the court re-sentenced the offender to aggregate imprisonment with indicative sentences ranging from two to six months per offence. The court structured all sentences to achieve an appropriate total effective sentence, with the overall head sentence amounting to one year and eight months and a total pre-release period of one year and two months.

Orders Made

  • Commonwealth offence (count 1): 14 months' imprisonment from 30 November 2019, with a recognisance release order after serving 8 months (release date 29 July 2020); head sentence to expire 29 January 2021
  • State offences on indictment (counts 2, 3 and 4): aggregate sentence of 15 months' imprisonment with a non-parole period of 10 months, commencing 30 August 2019; head sentence to expire 29 November 2020, non-parole period to expire 29 June 2020
  • Indicative sentences for counts 2, 3 and 4: 8 months, 8 months, and 6 months respectively
  • Six revoked good behaviour bonds: re-sentenced with indicative terms of 6 months (first offence), 6 months (second offence), and 2 months each for the remaining four offences
  • Forfeiture order made (by consent) in respect of the offender's iPhone

Key Takeaways

  • "Liking" images on Instagram was treated by the court as sufficient conduct to constitute using a carriage service to access child pornography material under s 474.19(1) of the Commonwealth Criminal Code.
  • A guilty plea discount was reduced from 25% to 10% for the Commonwealth offence because the offender's indication that the matter would not proceed to trial came only five days before the scheduled hearing, diminishing its utilitarian value.
  • Under s 107C and s 107D of the Crimes (Administration of Sentences) Act 1999, a court may revoke good behaviour bonds upon admission of breach and re-sentence the offender for the original offences.
  • Category 2 material under the Interpol Baseline Scale, as applied in this decision, covers child abuse material that does not reach the threshold of category 1 but still depicts children in a manner a reasonable person would regard as offensive, including images focused on sexualised poses or exposed body parts.
  • Repeated failures to comply with sex offender registration obligations, particularly when combined with a prior conviction for a child abuse offence, will ordinarily cross the threshold requiring a sentence of imprisonment under s 5 of the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation:
- Commonwealth Criminal Code 1995, s 474.19(1)
- Child Protection (Offenders' Registration) Act 2000 (NSW), ss 16C, 17(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 9
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 107C, 107D
- Crimes Act 1914 (Cth), s 20(1)(b)

Cases:
- R v Hutchinson [2018] NSWCCA 152