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District Court 5 June 2020

R v Jones

[2020] NSWDC 336

Sexual offences
CRIME SENTENCE COMMONWEALTH OFFENCE

Citation: R v Jones [2020] NSWDC 336
Court: District Court of New South Wales
Date: 5 June 2020
Judge: Bourke SC DCJ

Background

The offender, a 36-year-old part-time paint blaster and former Australian Army soldier, appeared before the District Court for sentencing on a single charge of using a carriage service to solicit child pornography, an offence under the Commonwealth Criminal Code carrying a maximum penalty of 15 years imprisonment.

The offending occurred over several days in late November 2018. The offender used an instant messaging application called Kik to contact a user who presented as a 13-year-old girl. That user was in fact an adult male. Over several days the offender exchanged messages of a sexual nature, received a category 1 child abuse image (classified under the Interpol Baseline Categorisation System as depicting a prepubescent child with the material focused on the child's genital region), and made further explicit requests for similar material.

When interviewed by police approximately six months later, the offender said he used Kik for "fantasy chat" when feeling depressed and claimed he could not recall the relevant conversations. He also discarded his mobile phone out of a car window on the way to the police station, acknowledging to police that the content was "not moral." The offender pleaded guilty at the earliest opportunity.

  • What sentence was appropriate for the Commonwealth offence of using a carriage service to solicit child pornography, having regard to the facts of the offending?
  • What weight should be given to the offender's significant mental health conditions, including PTSD arising from combat service in Afghanistan, as mitigating factors?
  • Whether a sentence of full-time custody was required, or whether an alternative disposition under s 20(1)(b) of the Crimes Act 1914 (Cth) was available and appropriate?
  • What discount, if any, should apply to reflect the utilitarian value of an early guilty plea in a Commonwealth sentencing matter?

Decision

His Honour assessed the objective seriousness of the offending as toward the lower range. The offending spanned only a few days, involved a relatively small number of communications, and lacked sophistication or deception on the offender's part. While the single image received was classified at the most serious Interpol category, the material did not involve features such as obvious cruelty or penetrative activity that appear in more serious cases of this type.

The court placed significant weight on the offender's subjective circumstances, particularly his military history. The offender had served two combat tours in Afghanistan as a forward observer with the Royal Australian Artillery. During those deployments he witnessed severe injuries to colleagues, came under fire, observed death, and saw children injured. These experiences produced diagnoses of PTSD, major depressive disorder, and substance abuse disorder. His Honour found a meaningful connection between those conditions and the offending, noting that the offender used Kik for "fantasy chat" when feeling depressed and was self-medicating with alcohol and drugs around the time of the offence.

His Honour applied a 25% discount for the early guilty plea, noting that no fixed standard discount applies in Commonwealth matters but that a discount for utilitarian value remained appropriate. General deterrence was identified as a very important consideration in child pornography offending given its prevalence, the relative ease of commission via the internet, and the difficulties of detection. However, the court found that both personal and general deterrence were reduced in this case by the serious nature of the offender's mental condition at the time of offending.

Both the Crown and defence counsel accepted that a term of imprisonment was necessary. His Honour imposed a sentence of one year and three months, but ordered the offender's immediate release under s 20(1)(b) of the Crimes Act 1914 (Cth) upon entry into a two-year good behaviour recognizance, with probation supervision and restrictions on interstate and overseas travel. His Honour assessed the offender's rehabilitation prospects as reasonable, contingent on continued treatment, sobriety, and stable employment.

Orders Made

  • A sentence of imprisonment of one year and three months was imposed.
  • The offender was ordered to be released forthwith upon entering into a recognizance without security to be of good behaviour for two years (expiring 4 June 2022), pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth).
  • The offender was placed under the supervision of a Probation officer and required to accept all reasonable directions of that officer during the recognizance period.
  • The offender was prohibited from travelling interstate or overseas without the written permission of a Probation officer.
  • The offender was required to report to the Newcastle office of Community Corrections within seven days, with the first report to be made by telephone within three days of the sentencing date.

Key Takeaways

  • The District Court confirmed that sentencing for offences involving the solicitation of child abuse material ordinarily requires immediate imprisonment, given the significant weight attached to general deterrence and the non-victimless nature of such offending.
  • A direct causal connection between an offender's diagnosed mental illness (here, combat-related PTSD and major depressive disorder) and the offending conduct can reduce the weight given to both personal and general deterrence, even in child pornography matters.
  • Under s 20(1)(b) of the Crimes Act 1914 (Cth), a court may impose a term of imprisonment but order immediate release on a good behaviour recognizance, providing an alternative to full-time custody where subjective circumstances warrant it.
  • No fixed percentage discount for an early guilty plea applies automatically in Commonwealth sentencing matters, though a court retains the discretion to apply a discount recognising utilitarian value, as occurred here with a 25% reduction.
  • Offences of this type are not treated as victimless: soliciting child abuse material was characterised as feeding and sustaining the market for the exploitation and corruption of children, regardless of whether the material in a particular case can be traced to a specific source.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), including the Commonwealth Criminal Code
- Crimes Act 1914 (Cth), including ss 16A and 20(1)(b)

Classification Systems Referenced:
- Interpol Baseline Categorisation System (IBS), Category 1

Cases cited: No specific cases were cited in the portions of the judgment provided.