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District Court 3 September 2021

R v Jones

[2021] NSWDC 478

Sexual offences
CRIME CHILD ABUSE MATERIAL RECKLESSNESS SENTENCING RELEVANT FACTORS ON SENTENCE CIRCUMSTANCES OF OFFENCE

Citation: R v Jones [2021] NSWDC 478
Court: District Court of New South Wales
Date: 03 September 2021
Judge: Weinstein SC DCJ

Background

The offender, a young man aged 18 and 19 at the time of the conduct and 21 by the time of sentencing, appeared before the District Court for sentence on a single charge of using a carriage service to access child abuse material, contrary to section 474.22(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for the offence is 15 years imprisonment. The offender had no prior criminal history and resided with his parents in Woodbine, NSW.

In July 2020, police received information that the offender had been accessing child abuse material through the cloud storage platform Mega.NZ. Following a Commonwealth search warrant, police attended the offender's home in August 2020. Before the search began, the offender voluntarily disclosed that his mobile phone might contain material of interest and provided police with his PIN code.

Police located approximately 10,000 files classified within Interpol Baseline Categories 1 and 2, from a total account holding over 177,000 files and 1.27 terabytes of data. Some of the material depicted the sexual assault of very young children, including infants. The offender cooperated during parts of the investigation, including providing consent to access his online accounts, but declined to participate in a recorded interview after receiving legal advice.

  • Whether the fault element of recklessness under section 474.22(1)(b) of the Criminal Code Act 1995 (Cth) was satisfied in respect of the material being child abuse material
  • What weight to give competing sentencing factors, including the offender's youth, lack of criminal history, cooperation with police, expressions of remorse, psychological evidence, and the serious nature and scale of the offending
  • Whether a non-custodial or suspended arrangement was appropriate given the mandatory consideration under section 17A of the Crimes Act 1914 (Cth) that imprisonment not be imposed unless no other penalty is adequate

Decision

The court accepted that the offending involved the fault element of recklessness as to whether the material constituted child abuse material. The offender claimed he was seeking conventional pornography and stumbled upon child abuse material by following links from online sources, describing himself as "bored" and "curious." The court noted that the sentencing assessment report recorded his minimisation of the conduct and his inability to adequately explain how the platforms he used differed from legal ones.

The court took account of substantial mitigating factors. These included the offender's youth, the absence of any prior criminal record, consistent employment history from the age of fourteen, strong family support, cooperation with police, and his expressed remorse in a letter to the court. Psychological evidence from Dr Carollyne Youssef was also before the court, alongside a sentencing assessment report from Community Corrections that assessed the offender as having a supportive and functional home environment.

Against those mitigating factors, the court weighed the gravity and scale of the offending. The material included approximately 10,000 files in the most serious Interpol categories, encompassing the sexual assault of infants and very young children. The court found that, having regard to all circumstances and applying the principles in Markarian v The Queen and Power v R, no penalty other than imprisonment was appropriate under section 17A(1) of the Crimes Act 1914 (Cth).

The court imposed a term of 24 months imprisonment but directed the offender's immediate release on a recognizance under section 20(1)(b) of the Crimes Act 1914 (Cth), subject to conditions including supervision, psychological treatment, and restrictions on interstate travel. The court also referred the offender to Corrective Services NSW psychological services for risk management and treatment recommendations.

Orders Made

  • The offender was convicted of using a carriage service to access child abuse material contrary to section 474.22(1) of the Criminal Code Act 1995 (Cth)
  • A term of imprisonment of 24 months was imposed
  • The offender was directed to be released forthwith upon entering a recognizance of $100 for 24 months under section 20(1)(b) of the Crimes Act 1914 (Cth), subject to the following conditions:
  • Be of good behaviour
  • Accept the supervision and guidance of Community Corrections for as long as that service considers appropriate, with first contact required by 10 September 2021 at the Coffs Harbour office
  • Not travel interstate without written permission from the probation officer
  • Undertake treatment or rehabilitation programs as reasonably directed by the probation officer
  • Continue psychological counselling with Dr Carollyne Youssef or another nominated psychologist for 24 months or as long as the treating psychologist considers appropriate
  • The offender was referred to Corrective Services NSW psychological services for risk management and treatment recommendations

Key Takeaways

  • Under section 474.22(1) of the Criminal Code Act 1995 (Cth), recklessness is the fault element for the circumstance that the material accessed constitutes child abuse material; intention applies only to the physical act of accessing.
  • A conviction for this offence does not require proof that the offender sought out child abuse material deliberately, provided the prosecution establishes recklessness as to the character of what was accessed.
  • The District Court confirmed that section 17A(1) of the Crimes Act 1914 (Cth) required a finding that no penalty other than imprisonment was appropriate before that sentence could be imposed, even where significant mitigating factors were present.
  • Substantial mitigation, including youth, no prior record, cooperation with police, remorse, and psychological support, did not displace the need for a custodial term where the material was of extreme gravity and enormous in volume, but those factors did inform the structure of the sentence, including the recognizance release.
  • A recognizance release under section 20(1)(b) of the Crimes Act 1914 (Cth) remains available in Commonwealth matters as a mechanism for immediate release subject to conditions, even after the court has determined that imprisonment is the only appropriate penalty.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), section 474.22(1)
- Crimes Act 1914 (Cth), sections 16A, 17A, 19AB, 20(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Azzopardi v The Queen (2011) 35 VR 43
- Hill v the Queen; Jones v the Queen [2010] HCA 45
- Markarian v The Queen (2005) 228 CLR 357
- Power v R [1974] HCA 26
- R v De Leeuw [2015] NSWCCA 183
- R v Hutchinson [2018] NSWCCA 152
- The Queen v Pham (2015) 256 CLR 550