R v Jones

District Court of NSW|2009-01-27|Before: Mr P

CATCHWORDS: Sentence - Possess Child Pornography

Crimes Act 1900 s 91H(3) LEGISLATION CITED: Criminal Case Conferencing Trial Act 2008 s 17 Crimes (Sentencing Procedure) Act 1999 s 3A s 21A

Mouscas v R [2008] NSWCCA 181 CASES CITED: R v Gent [2005] NSWCCA 370 R v Saddler [2008] NSWDC 48 R v Stroempl (1995) 105 C.C.C.

PARTIES: Regina Richard JONES

SOLICITORS: Ms K Thompson (Crown) Mr P Elks (For the Defendant)

The offender pleaded guilty before the Local Court at the Downing Centre to two offences of possessing child pornography contrary to s 91H (3) Crimes Act 1900. The maximum available penalty for each offence is five years imprisonment. No standard non-parole period applies.

Pursuant to s 17 of the Criminal Case Conferencing Trial Act 2008, if an offender pleads guilty to an offence prior to committal for sentence, a mandatory discount of 25% is to be applied to any "sentence of imprisonment for a term" [s 17(1)(a)] and to any "good behaviour bond for a term" [s 17(1)(d)].

To date, the offender has spent no time in custody.

The offender is a 64-year-old married man with two adult children. He is a former Customs officer. In the last few years of his employment as a Customs officer, it was part of the offender's duties to examine contraband items imported into Australia. Not infrequently, those items included child pornography. The offender received no counseling in relation to the psychological impact of that work.

The offender has no prior criminal record. In the 1990s, he suffered a back injury. Since then, he has spent much of his free time using a home computer, inter alia pursuing an interest in trains. The offender's back injury and a serious illness suffered by his wife was affecting their intimate relationship. When using his home computer, the offender began to access child pornography sites and to download images onto compact disks, which he stored at his residence.

The first offence occurred on 30 April 2008. The offender took his computer to a computer repair shop. While working on the computer, the repair person discovered images depicting girls aged between about six and 12 years who were naked or partly naked and had their genitals exposed. In one image, a girl was laying naked with her legs parted and an artificial penis placed on the bed between her legs. Police were called and seized the computer. Police found that the offender's computer hard drives contained 51 images and one video of child pornography. The video was approximately 20 minutes long and depicted at least one girl aged between six and ten years engaged in vaginal and anal intercourse with an adult male. At one stage, the child's legs were bound apart.

The second offence occurred on 2 May 2008, when police executed a search warrant at the offender's residence. They located 25 compact disks containing images and video clips of child pornography. The compact disks contained approximately 23000 image files and 220 video files of child pornography. A schedule that is part of Exhibit A describes some of the images. Many of the images are deeply disturbing. Many have been graded 9 or 10 on the Copine Scale, which grades child pornography on a scale of 1 to 10. Level 10 applies to the worst type of child pornography and includes pictures of a child being tied, bound, beaten, whipped or otherwise subjected to pain, or pictures involving bestiality. The images include a variety of oral and vaginal intercourse, bondage, images of children in apparent pain, and children suffering the indignity of being urinated or ejaculated upon. In many cases, although the schedule does not describe the child as exhibiting symptoms of pain, the activity is such that the child must have experienced pain. The children depicted in the images include babies, 18 month old toddlers and girls aged up to 12 years.

In many cases, victims of these offences must have suffered physical pain that was, at least, temporary. In all cases, they must have suffered serious psychological harm. The victims will probably never be identified. The circumstances in which they came to be exploited will probably remain unknown. The psychological impacts will probably remain untreated. In some respects, these crimes are more abhorrent than crimes committed against identified victims who, at least, have the satisfaction of knowing that offenders have been prosecuted.

Each of the offences, and particularly the second offence, is objectively very serious because of the number of images, the age of the victims and the nature of the conduct depicted.

I accept that the offender does not have a long history of accessing child pornography and initially became involved through contact with child pornography in the course of his work. On the other hand, through his work as a Customs officer he must have known that the possession of child pornography was a serious criminal offence.

In 1971, the offender was the victim of two armed robberies that caused him to fear for his life. It is possible that he has an unresolved post traumatic stress disorder. In addition to a significant back problem, the offender suffers from prostate cancer for which he is receiving treatment. The prognosis is reasonable but not certain. Because of these proceedings, the offender is estranged from his wife and son. He has been denied access to his grandson. His only significant social contact is with his daughter and one loyal friend.

Unsurprisingly, the offender lacks full insight into his conduct. A psychologist describes him as a socially and sexually immature man who has always experienced difficulty relating to the opposite sex. However, in the course of a detailed assessment by a forensic psychologist attached to the Department of Corrective Services, the offender admitted to receiving sexual gratification from the images. He stated that he felt less threatened by children, felt "in control", and was attracted to the innocence and compliance of the children in the images. At the time of the offences, he saw them as "just images". He is only now starting to appreciate that the children depicted in the images are real children. The offender's cooperation with police, early pleas of guilty and recent acknowledgment of injury suffered by the victims, are important first steps towards behavioural change.

The risk of re-offending is "moderate". The offender needs long-term treatment. According to the forensic psychologist, the community-based treatment program available at Forensic Psychology Services (part of the Department of Corrective Services) would meet some of his needs. The programme is undertaken over a period of approximately 2 years while the participant is under the supervision of the Probation and Parole Service.

In sentencing the offender, the Court must have regard to the sentencing objectives set out in s 3A Crimes (Sentencing Procedure) Act 1999. In relation to offences of this type, the objectives of denunciation, recognition of harm to the victims and general deterrence are particularly important. Such crimes are difficult to detect and, when they are detected, a clear message of deterrence should be conveyed to the community. As the Attorney-General stated in the Second Reading Speech of the Crimes Amendment (Child Pornography) Bill 2004, which, inter alia, increased the maximum penalty for possessing child pornography from two years to five years imprisonment: "Those who possess child pornography, though they may not directly harm any child, provide a market for those who produce and distribute this material. If the courts can provide effective deterrence to people who possess child pornography, this market may be eliminated, and the impetus to produce child pornography, and to abuse children in its production, will be reduced."

Other relevant sentencing objectives include rehabilitation of the offender and protecting the community. If rehabilitation can be achieved, the community will be protected.

The Court is required to consider the relevant aggravating and mitigating features under s 21A Crimes (Sentencing Procedure) Act 1999. The relevant aggravating features are that gratuitous cruelty was involved, that there were multiple victims and that there was a series of criminal acts. The aggravating features are more relevant to the second offence. The mitigating features include the offender's lack of prior criminal record (particularly considering his age) and his pleas of guilty. In addition, I am satisfied that there are good prospects of rehabilitation (provided that the offender engages in an appropriate programme) and that he has expressed remorse within the meaning of s 21A. The offender is entitled to rely upon his good character, although good character is of less significance in relation to offences of this type as such offences are often committed by persons of prior good character: R v Gent [2005] NSWCCA 370.

The sample of s 91H(3) sentences in the Judicial Commission statistics is insufficient to provide reliable guidance. The Crown referred to the decisions in Mouscas v R [2008] NSWCCA 181 (an offence of comparable objective seriousness where a significant sentence of full-time imprisonment was upheld), R v Stroempl (1995) 105 C.C.C. (3d) (a five year maximum sentence applied and the court reduced a sentence imposed on a 67-year-old man with no prior criminal record to one of 10 months imprisonment) and R v Saddler [2008] NSWDC 48 (three serious charges, a plea of guilty but otherwise insignificant mitigating features resulted in an effective sentence of six years imprisonment with a non-parole period of four years and six months, but there has been an appeal against the severity of the sentences). I have considered each case. Ultimately, the most reliable guide to the appropriate penalty is the maximum available penalty. In the context of maximum penalties for indictable offences, that penalty is low. Since the commission of these offences, the penalty has been increased to 10 years imprisonment.

A sentence of imprisonment is a sentence of last resort: s 5 (1) Crimes (Sentencing Procedure) Act. However, the objective seriousness of the offence of 2 May 2008 undoubtedly calls for a sentence of imprisonment.

Having identified the appropriate sentence for each offence, the overall sentence should be structured to reflect the total criminality of the offender's conduct. In this case, the offences were committed at the same time and in the same circumstances. I will impose concurrent sentences.

The offender is convicted of each offence. In relation to the offence of 2 May 2008, the offender is sentenced to a non-parole period of 20 months and a balance of term of 7 months (3yrs less 25%). I direct that the sentence be served by way of a periodic detention order. The offender is to report to the Parramatta Periodic Detention Centre on Saturday February 7, 2009 and thereafter as directed. Parole is subject to the additional conditions that he accepts the supervision of the Probation and Parole Service, and undertakes any programme or treatment recommended by the Service.

In relation to the offence of 30 April 2008, instead of imposing a sentence of imprisonment, the offender is directed to enter into a good behaviour bond for a period of 3 years and 9 months (5 yrs less 25%). The bond is subject to the additional conditions that the offender accepts the supervision of the Probation and Parole Service for the whole of the term of the bond, reports to the Probation and Parole Service by 4pm on Friday 30 January 2009, and undertakes any treatment that the Service recommends.

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