Citation: R v Richmond-Jones [2024] NSWDC 391
Court: District Court of New South Wales
Date: 12 August 2024
Judge: Anderson SC DCJ
Background
The offender pleaded guilty to two Commonwealth offences. The first was importing tier 2 goods (child abuse material) under the Customs Act 1901, arising from his return to Australia from the Philippines on 7 January 2023 with child abuse material stored on his mobile phone. The second was planning or preparing to engage in sexual activity with a child outside Australia, under the Criminal Code Act 1995, relating to conduct in the Philippines between 26 December 2022 and 1 January 2023.
Both offences carry a maximum of ten years' imprisonment. A 25 per cent discount applied to both sentences, reflecting the offender's early plea of guilty.
The sentencing proceedings were significantly delayed. After the original hearing on 27 May 2024, the Commonwealth raised a late concern that the offender's evidence may have traversed his plea. The Court rejected that concern as unfounded. The Commonwealth then abandoned its position on the last business day before the rescheduled hearing, having never adequately explained the delay. Anderson SC DCJ criticised this conduct directly, noting that it caused the offender to spend an additional two months on remand unnecessarily.
Legal Issues
- Whether the offender's importation of certain images on his phone was intentional, given his evidence that he was unaware those specific images were stored on the device.
- How many children the offender sought to engage in sexual activity with, for the purpose of assessing the objective seriousness of the Criminal Code offence.
- What sentencing options were appropriate for each offence, including whether full-time custody was required.
- Whether the Commonwealth's conduct in raising and then abandoning the plea traversal issue warranted judicial comment.
Decision
On the disputed facts for the Customs Act offence, the Court accepted the offender's evidence that he was unaware certain images in his phone's storage had been placed there. Four of the seven items in the disputed category had timestamps postdating the offender's arrest, which supported his account. The Court resolved the factual dispute in the offender's favour, limiting the scope of the importation offence to the material he was shown to have knowingly possessed.
On the Criminal Code offence, the Court assessed the objective seriousness of the planning conduct on the basis of the facts proven, including the number of children involved, and treated this as the more serious of the two offences. The Court was satisfied that no sentence other than full-time custody was appropriate for this count.
For the Customs Act offence, the Court examined the hierarchy of sentencing options and concluded that a fine was the appropriate standalone penalty. A further recognisance or extension of any recognisance order was regarded as having no practical utility for that discrete offence.
Anderson SC DCJ was pointed in his criticism of the Commonwealth's conduct throughout the proceedings. He emphasised that private counsel and instructing solicitors were not personally to blame, but expressed clear disapproval of the institutional decision-making that caused unnecessary additional time on remand for the offender.
Orders Made
- Sequence 1 (Customs Act importation offence): Convicted and fined $2,100 (approximately ten penalty units, with a 25 per cent discount applied).
- Sequence 5 (Criminal Code planning offence): Convicted and sentenced to two years' imprisonment, commencing 31 July 2023 and expiring 30 July 2025.
- After 14 months of the sequence 5 sentence, the offender is to be released on a recognisance of $500 for the remaining ten months, subject to conditions including: good behaviour; supervision by a probation and parole officer; compliance with reasonable directions; no interstate or overseas travel without permission; and participation in a rehabilitation program for sexual offenders.
- The offender's mobile phone, seized by the Australian Border Force on 7 January 2023, forfeited to the Commonwealth under s 23ZD of the Crimes Act 1914.
Key Takeaways
- Intentional importation under s 233BAB(5) of the Customs Act requires the Crown to prove beyond reasonable doubt that the offender knowingly imported the prohibited material. Where an offender gives unchallenged evidence of unawareness of specific items on a device, the court may limit the factual basis of the offence accordingly.
- A fine remains a valid sentencing option for a Customs Act child abuse material importation offence where the offending is addressed by another, more serious count carrying a custodial sentence, and where other non-custodial orders would serve no independent purpose.
- Planning or preparing to engage in sexual activity with a child outside Australia, under s 272.20(1) of the Criminal Code, was treated by the District Court as warranting full-time imprisonment as the only appropriate sentencing response.
- Delays caused by prosecution conduct that results in extended time on remand drew direct judicial criticism. The Court noted that unnecessary remand time is qualitatively more burdensome than time served as a sentenced prisoner, given restricted access to work and rehabilitation programs.
- Under s 20(1)(b) of the Crimes Act 1914, a court may structure a sentence so that part is served in custody and the remainder is served on a recognisance release order, with conditions tailored to the nature of the offending, including mandatory participation in sex offender rehabilitation programs.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), ss 272.9(1), 272.20(1)
- Customs Act 1901 (Cth), s 233BAB(1)(h), s 233BAB(5)
- Crimes Act 1914 (Cth), ss 17A, 20(1)(b), 23ZD
Cases
- Minehan v R [2010] NSWCCA 140
- R v Hutchinson [2018] NSWCCA 152
- Worboyes v The Queen [2021] VSCA 169