Federal Police called in on a house that Paul James used to live in on 15 June last year. Mr James arrived not long after they did. They said that they were there to ask him about child pornography. Police found what they suspected, namely a presence of child pornography in the house and also in various facilities which Mr James used.
As a result of what the police found, Mr James was charged with a series of offences. He was charged with sending child pornography, with possessing child pornography and with using a computer offensively.
Mr James pleaded not guilty to these charges and he came on for trial before me and a jury in the District Court at Wollongong. The trial started on 2 August 2011 and on 8 August 2011 Mr James was found guilty of all of the charges. Specifically, he was found guilty of the following offences. The first is a crime called "using a carriage service to transmit child pornography material" and he was found guilty of fifteen charges in respect of that crime. Each one is an offence against s 474.19(1)(a)(iii) of the Criminal Code 1995 of the Commonwealth. The maximum sentence for fourteen of those offences is fifteen years imprisonment. The maximum for one of them is ten years imprisonment. (That is because the Federal Parliament increased the maximum penalty during the period that Mr James was committing those offences.) He was also found guilty of the crime of possession of child pornography. That is an offence against s 91H(2) of the Crimes Act 1900 of New South Wales. That offence carries a maximum of ten years imprisonment fixed by the New South Wales Parliament. Finally he was found guilty of an offence called " using a carriage service to cause offence ". That is a crime against s 474.17(1) of the Criminal Code of the Commonwealth. It carries a maximum of three years imprisonment.
It is important for a judge in sentencing an offender to set out briefly what the offender did which amounted to the crimes so that the judge can make an assessment of how serious the particular crimes committed by the offender were. Over a period of a couple of weeks from 13 May 2010 to 26 May 2010 Paul James was communicating with a person he thought was names Lesa Jones online. He understood that she was a fourteen-year-old girl. In fact, the person he was communicating with was an undercover police officer. The chat log was tendered in the trial and the communications between Paul James and the person he thought was Lesa Jones included references to sexual acts with another girl. He had said that the other girl was the same age as Lesa. There were also references to a preference for under-age girls generally. That activity over that period of time resulted in the charge of using a carriage service to cause offence.
R v Paul JAMES [2011] NSWDC 185 | Case summary | Zoe
When the police turned up at the house he used to occupy on 15 June last year, Mr James was told that they had a search warrant for child pornography and Mr James claimed that it was a " false allegation, so I've got nothing to really hide ". However, what the police found is helpfully summarised in written submissions prepared by the legal representative for the Commonwealth Director of Public Prosecutions who brings these proceeds, Ms M.E. Grimes, dated 5 October 2011 and marked MFI 18. In summary, the police found a number of images. The images were contained across three different email accounts and two different computer devices. Police found that Mr James had a gmail account, a hotmail account and a yahoo account. Each of these accounts contained child pornography and in addition two computers which he possessed were found to have child pornography on them as well. All in all, the prosecution said, the police found 1,675 images and 182 multi-media files. That number refers to individual images which are not duplicated. That is the figure which I take into account for the purposes of sentencing Mr James. In fact, the total number of images was much higher because there was a good amount of duplication over the email accounts and the two computers.
There is a scale used to classify child pornography which is taken from a guideline judgment delivered by the UK Court of Appeal in its criminal division and reported as R v Oliver [2002] EWCA Crim 2766. That scale lists five categories of child pornography. The first category is the least serious and the fifth category is the most serious. It is apparent that most of the material possessed by Mr James fell within the first and least serious category. However, there is a not insignificant number of the images which fall over the other four categories, including some in the worst category, being number five.
When Mr James was arrested on 15 June last year he was given conditional bail. However he breached the bail more than once. He was bail refused a number of times by the Wollongong Local Court. Eventually he was given bail by the Supreme Court. In all he has spent some fifty-two days in custody and when I come to sentence him his sentence will commence from 14 September 2011 which I calculate is fifty-two days before today.
I have been assisted by Ms Grimes in her written and oral submissions and by Mr T Phelan of counsel in his oral submissions regarding the factors which are relevant to me in sentencing Mr James for these crimes.
The factors which I take into account are the following. First, there was no plea of guilty. That does not of course make the offence or the sentence any worse but it deprives an offender such as Mr James of an allowance that is made by the courts in sentencing someone who has pleaded guilty.
Secondly, I do not make any allowance for any contrition. Once again a lack of contrition is not an aggravating factor but it means that it is not a positive factor which I can take into account in Mr James's favour. Mr James's prospects of rehabilitation in the circumstances must be regarded, in my opinion, as limited. That is because he has maintained his innocence.
Next, I am not sentencing him for a one-off encounter with child pornography. The fifteen charges relating to transmitting child pornography material relate to fifteen separate individuals to whom Mr James sent child pornography material. In addition he communicated with a person he thought was a fourteen-year-old girl over a period of a couple of weeks. In other words, these offences are not isolated.
Next, I take into account that, so far as the offence of transmitting child pornography is concerned, it seems to me to be a more serious example of the crime against s 474.19(1)(a) than some of the other ways in which the crime may be committed. For example, it would be more serious in my opinion than accessing material or causing the material to be transmitted to himself. It may be more serious than soliciting the material. It is more serious because the material does not remain with Mr James to be viewed or accessed. It is actually sent beyond him to somebody else so it is shared with at least one other person that Mr James knows of. He then has no control over its further dissemination. For that reason I regard the way in which he committed the crimes against s 474.19(1)(a) as serious examples of that crime.
Next, I take into account that not all of the images were in the lowest category. There are some images across every category of seriousness.
Next, I take into account the submissions made by Ms Grimes in her written submissions about the children involved in the material which was located and related to Mr James. It involved children ranging from infants through to about fifteen years of age. The Federal Police estimated that there would be about 800 different children depicted. They were mostly girls aged between six and fourteen.
The images which were transmitted by Mr James also crossed every category. There were, as I said, fifteen different recipients but I must bear in mind that Mr James is charged with an offence in respect of each of those recipients.
Next I take into account the impact which crimes such as this obviously have on the victims. The New South Wales Court of Criminal Appeal in R v Booth [2009] NSWCCA 89 emphasised the harm to the children or child victims. Over [40-42] the Court said the following-
" Possession of child pornography is a callous and predatory crime. In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often this is in underdeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children, the subject of the material. "
I accept Ms Grimes's submission that the " long term impact on the children is unknown and immeasurable. However, there can be no doubt that each child has been affected by their exploitation and abuse ".
Next, I take into account the importance of general deterrence in cases such as this. The New South Wales Court of Criminal Appeal has emphasised, as have other courts, that offences of this kind require courts to impose sentences that will deter others in the community from committing these kinds of crimes as well as punishing and denouncing the conduct of the offender. In R v Gent [2005] NSWCCA 370 the New South Wales Court of Criminal Appeal at [27] extracted the remarks made by the sentencing judge at first instance (Williams DCJ) in considering that general deterrence was a significant factor in sentencing for an offence of importing child pornography which the crime was in that case. The court adopted the following-
" There can be little doubt that if the market for child pornography was reduced, then the numbers of children abused in this way would also be reduced. That means there should be a significant element of general deterrence when considering the question of penalty. Users of child pornography need to understand that, when detected, the penalty they will suffer is likely to be imprisonment for a substantial period of time in the hope - although perhaps futile - that some children, somewhere, will not be exploited in this way in the future. "
As Ms Grimes said in her written submissions-
" The widespread availability of the internet and the difficulty of detecting offences, together with the relative ease by which child pornography can be accessed, require that offences such as these call for a significant component of general deterrence ."
Both the New South Wales and Federal legislation concerning sentencing require a judge, to use general terms, to be satisfied before sending an offender to gaol that it is really the only available choice. In this case I regard it as the only available choice given what I have said and what I am going to say about these crimes. Mr Phelan realistically, and in my opinion correctly, agreed that I had no other choice in this case.
There was no evidence before me that any time spent by Mr James in custody would be significantly more disadvantageous to him than if he were convicted of other crimes.
Next I take into account the submission made by Mr Phelan that there was no commercial aspect to these offences. That of course does not reduce their seriousness but it means that they are not as serious as some other instances of these crimes are.
Next I take into account that fortunately the person that Mr James was communicating with in committing the offence of using a carriage service offensively was an undercover police officer and not a real fourteen-year-old girl.
Next I take into account, as Mr Phelan asked me to, the fact that the overwhelming majority of the material fell in the lowest category in the scale of seriousness for these crimes.
Next I take into account that Mr James has no criminal history, although of course it needs to be borne in mind that often these sorts of crimes are committed by persons without a criminal history.
Next I take into account that Mr James has a son who has significant medical problems. Those problems are the subject of exhibits S1 and S2. Obviously some time in gaol will mean that Mr James is not available to assist his former partner, the mother of the child, in looking after the child. Mr James himself is very much involved in caring for his child. This would inevitably cause some hardship to the child and its mother but it is not the kind of hardship which should affect the sentence which I impose. The courts have made it clear that the hardship must be quite extreme and not the normal hardship which follows when a person is punished for committing serious crimes.
There is a pre-sentence report about Mr James which became exhibit SC and I have taken that into account. The report is summarised in the following terms:
" Mr James presented as cooperative during the preparation of this report. He revealed a family history in which he was the victim of alleged abuse by his stepfather until the age of sixteen years. The offender advised that he had supportive relationships with two of his siblings and both parents. Currently separated from his partner, Mr James continues to be involved in the daily care of his two children, the youngest of whom has a disability ."
I correct the remark that he has only one child. There are two children but one of them has the significant disability.
Mr James has had, because of the nature of the offences, some threats made to him by members of the community whom he may or may not know. That does not mitigate his sentence but is a factor which I take into account.
I now need to turn to some assessment of how serious these crimes are. First I consider count 17 on the indictment, which is the State charge of possession of child pornography. I find it convenient to look at offences in terms of whether they are in a low range, in the middle range, or in the upper range. I appreciate that that terminology is also associated with standard non-parole periods so far as New South Wales legislation is concerned. I emphasise I am not using an approach linked to standard non-parole periods. It is a general way of making some assessment of how serious a crime is. I regard the offence of possession of child pornography as falling within the mid range, middle of the range of seriousness for these kinds of crimes, but towards the bottom of that range. Mr James possessed more than a handful of child pornographic images. He had over 1,700. But, on the other hand, they were not to be numbered in the tens of thousands. Also most of them fell within category one. I would regard an appropriate sentence in light of the maximum of ten years imprisonment as four years imprisonment for that offence.
So far as the offence of use of the carriage service is concerned, which is count 16, that carries a maximum of three years imprisonment. It was not an isolated event. It occurred over some two weeks. But, on the other hand, I take into account that the recipient was not a fourteen-year-old teenage girl. I would regard that as falling in the lower range and I would regard an appropriate penalty for that offence as being one year's imprisonment.
I turn now to the fifteen counts of transmitting child pornography material. As I said, I regard transmitting the material as a more serious example of that crime than other ways of committing the same crime. I take into account that most of the material was in the lowest category, but a good number was spread over the other categories, including some in category 5. I take into account that there were some 800 victims, largely girls between the ages of six and fourteen.
I have information about how many images were transmitted in respect of each offence. However, I do not appear to have information about the range of categories over which those images are spread so far as each individual offence is concerned. I regard all of those offences - comprising counts 1 to 15 - as falling within the middle range for crimes of that kind. However, the sentences should vary because in some instances the number of images sent was quite low. They range from three images sent, so far as count 15 is concerned, to 123 images sent, so far as count 5 is concerned.
I propose to structure the sentences with some slight variation reflecting the number of images which was transmitted. I regard for all of the offences, except count 1, an appropriate range as being one of five to six years imprisonment.
I propose to classify the various crimes as follows. For offences involving a transmission of between two and ten images I would regard an appropriate sentence as being five years and six months imprisonment. That would apply to counts 11, 12, 14 and 15.
For offences involving the transmission of between eleven and twenty-five images I would regard an appropriate penalty as being five years and nine months. That penalty would apply to offences in that category which it seems to me comprise counts 2, 4, 6, 8, 9, 10 and 13.
I would regard an appropriate penalty for offences involving the transmission of between twenty-six and forty images as being six years imprisonment. There are two offences which fall in that category and they are counts 3 and 7.
I regard an appropriate penalty for offences where the number is over forty as being as little over six years imprisonment, namely, six years and three months imprisonment, despite the overall range I mentioned of five to six years. One hundred and twenty-three images is a significant increase on the largest number otherwise which is forty. There is one offence which falls into that category and it is count 5.
Count 1 is the offence which was committed before the penalty was increased from ten to fifteen years. The maximum for that crime is ten years imprisonment. The number of images transmitted in respect of count 1 was six. It would correspond with the lowest number in the other categories. I would regard an appropriate penalty for count 1 as being three years and eight months.
As I said, the first sentence will commence fifty-two days before today, namely 14 September 2011.
There must be some partial accumulation, both amongst the different kinds of crimes and amongst the various offences which compromise counts 1 to 15. Generally, what I propose to do is to accumulate the penalties in counts 1 to 15 by one month between each one. There will be a slightly greater accumulation between count 16 and 17 and between count 17 and the other counts. Accordingly, I propose to impose the following sentences.
HIS HONOUR: My associate will provide you with what I have in mind. That gives you an overall sentence and I am going to impose them now and then I am going to fix either a non-parole period or a recognizance release order and I will want to hear from both of you in due course about which one I should do and why.
Mr James, you need to stand up now, I am going to sentence you. For charge number 16 of using a carriage service in a way that reasonable persons would regard as being offensive you are sentenced to one year imprisonment. That commenced on 14 September 2011 and expires on 13 September 2012.
For charge 17 of possessing child pornography, I convict you of that offence and sentence you to four years imprisonment. That will commence two months after the commencement of the first sentence, namely on 14 November 2011 and it will expire on 13 November 2015.
For charge number 1, of transmitting material over a carriage service, being child pornography material, I convict you of that offence and sentence you to three years and eight months imprisonment. That will commence two months after the commencement of the second sentence. It will commence on 14 January 2012 and expire on 13 September 2015.
For count 2, which is the same offence but carrying a maximum of fifteen years imprisonment, I convict you of that offence and sentence you to five years and nine months imprisonment to commence a month later on 14 February 2012 and to expire on 13 November 2017.
For count 3, the same offence, I convict you of that offence and I sentence you to six years imprisonment to commence on 14 March - one month later - 2012 and to expire on 13 March 2018.
For count 4, the same offence, I convict you of that offence. Your sentence is five years and nine months imprisonment, commencing a month later on 14 April 2012, and expiring on 13 January 2018.
For count 5, the same offence, I convict you of that offence. The penalty will be six years and three months imprisonment, to commence a month later on 14 May 2012, and to expire on 13 September 2018.
For charge 6, the same offence, I convict you of that offence, and fix a penalty of five years and nine months to commence a month later on 14 June 2012 and to expire on 13 March 2018.
For count 7, the same offence, I convict you of that offence, and sentence you to six years imprisonment to commence a month later on 14 July 2012 and to expire on 13 July 2018.
For count 8, the same offence, I convict you of that offence, and sentence you to five years and nine months imprisonment. That will commence a month later on 14 August 2012 and it will expire on 13 May 2018.
For charge number 9, the same offence, I convict you of that. The penalty will be five years and nine months imprisonment. That sentence will commence a month later on 14 September 2012 and will expire on 13 June 2018.
For charge number 10, the same offence, I convict you of that offence. I fix a penalty of five years and nine months, to commence a month later on 14 October 2012 and to expire on 13 July 2018.
For charge number 11, the same offence, I convict you of that offence. I fix a penalty of five years and six months, to commence a month later on 14 November 2012 and to expire on 13 May 2018.
For charge number 12, the same offence, I convict you of that offence and I fix a sentence of five years and six months to commence a month later on 14 December 2012 and to expire on 13 June 2018.
For count 13, the same offence, I convict you of that offence. The penalty will be five years and nine months imprisonment. It will commence a month later on 14 January 2013 and expire on 13 October 2018.
Charge number 14, I convict you of that offence, which is the same offence. The penalty will be five years and six months, which will commence a month later, on 14 February 2013, and will expire on 13 August 2018.
On charge number 15, the same offence, I convict you of that offence. The penalty will be five years and six months and will commence on 14 March 2013 and will expire on 13 September 2018.
The minimum time that I propose that you be in prison will be four years
and three months. That commenced on 14 September 2011, taking into account the fifty-two days you have already spent in custody, and it will expire on 13 January 2016.
In fixing that minimum period, I have taken into account what the High Court has said about fixing minimum periods in Hili v The Queen (2010) 85 ALJR 195 and in Bugmy v The Queen (1990) 169 CLR 525.
I regard your prospects of rehabilitation as limited. On the other hand you are not a violent offender but it is an offence which requires a significant period to be spent in prison. You are not a physical danger to the community but the kind of crimes which you committed must be deterred and that is why the minimum term is fixed as it is.
HIS HONOUR: Have a seat Mr James. I need to fix either a, what is it, s 20?
GRIMES: 19AB refers to when you--
HIS HONOUR: Either a single non-parole period--
I make it clear that the sentences for counts 16 and 17 are both fixed terms. I will fix either a single non-parole period or make a recognisance release order in respect of the penalties which I have imposed in respect to counts 1 to 15.
HIS HONOUR: Which ones should I do?
GRIMES: I don't see any preference for either to be honest. The section provides for both, obviously picking up this.
HIS HONOUR: What's the difference?
GRIMES: I don't think there is any real difference your Honour. I think it's simply a Commonwealth terminology and the non-parole period picks up on the State terminology. The recognisance release order really is usually only unutilised when it's less than three years. It tends to be more common that a parole period is imposed in relation to over three years and certainly in my experience it is simply because it makes, when there's a mixture of offences, a little less complex.
HIS HONOUR: I have in mind a non-parole period. Mr Phelan do you have any submission to make? I have in mind a non-parole period rather than a cognisance release order.
PHELAN: I don't have anything significant to submit on it. I would've thought a non-parole period probably would be preferable but I don't say that with any great force.
In respect of the sentences which I have imposed for counts 1 through to 15 inclusive, under s 19AB(1) of the Crimes Act 1914 of the Commonwealth, I fix a single non-parole period of four years and three months commencing 14 September 2011 and expiring on 13 January 2016.
HIS HONOUR: I don't fix conditions of parole. I wouldn't do that for a State offence because it's over three years. I know what I was going to say. There's no subjective material Mr Phelan is there, apart from the presentence report and the reports regarding your client's son, is that right?
PHELAN: Correct your Honour.
HIS HONOUR: Often when I've sentenced an offender to prison I can send in with him or her psychological reports and psychiatric reports. It assists with the classification. We can assume that they know about the presentence report. I'm just wondering whether you want me to send in any information about your client's child. I don't know whether that'll help classification or not. It might give the classifying authorities information about him and his family. Do you want to have another look at that material and have a word to your client?
PHELAN: I don't need to see it. If your Honour's minded to attach that.
HIS HONOUR: I can if you like.
PHELAN: Whether it will do anything or not is another thing.
HIS HONOUR: I don't know but it might fill out a picture that the people who classify prisoners are concerned so far as your client's concerned. It may make no difference at all, it may not be relevant. My associate will either scan it or fax it to the relevant person in Corrective Services. We have a contact number for that person who deals with these sorts of things. Are you happy with that?
PHELAN: Yes your Honour, it might assist as to where they locate him.
HIS HONOUR: That's a good point. My associate will send copies of exhibits S1 and S2 to the relevant person in Corrective Services. Is there anything else I need to do before I explain the penalty to Mr James?
GRIMES: No, I just have some housekeeping matters in terms of forfeiture.
PHELAN: No your Honour.
Mr James, you've got the sentences which I have read out. My associate's given to Mr Phelan a page which lists all of the sentences; it does not list the minimum, which I have specified, which is four years and three months. He might either give that to you or make a photocopy of it for you, unless we have a spare. I'll just ask my associate. Mr Phelan you might see if you can get a photocopy to your client just so he's got it in writing. Mr James I have sentenced you to one year for the communications you had over the Internet with the police officer. I've sentenced you to four years for the child pornography, which you've been convicted of possessing and I've sentenced you to a range of sentences for the individual transmission of child pornography. Overall the sentences, as you heard me say, they started on 14 September 2011 because I take into account the 52 days you've served, and the last sentence finishes on 13 September 2018. That in all amounts to a sentence of seven years and one month. The one year and the four years are fixed, there's no non-parole period, they're fixed. But for the 15 offences of transmit I fixed one non-parole period, which is four years and three months and that expires on 13 January 2016. That's wrong isn't it?
HIS HONOUR: That's the other thing I was going to ask you Mr Phelan and Ms Grimes. Are my sums right there? The overall sentence is yes - but I have fixed the four years and three months from 14 September 2011. I think I need to adjust that. I think I do because my intention is that the overall non-parole period that is the minimum term, as I said to Mr James, is four years and three months against a maximum of seven years and one month, so I need to commence the non-parole period affixed to counts 1 to 15 not from 14 September 2011 but it must commence on 4 January 2012, am I right so far?
GRIMES: Yes that would seem correct, your Honour.
HIS HONOUR: Which means that I need to reduce that non-parole period by, I think, four months to three years and eleven months. Now tell me what you think, it is the same thing it amounts to the overall sentence is seven years and one month, the overall minimum is four years and three months, but the way of doing that is the non-parole period must commence on 14 January 2012, not as I had it, on 14 September 2011.
GRIMES: Yes, that seems correct, your Honour and I note the four months that your Honour proposes to reduce the non-parole period correlates with the four months accumulation for the first two counts. Counts 16 and 17 I should say.
HIS HONOUR: So we think three years eleven months from 14 January 2012 so that would be--
GRIMES: The only difficulty I can see with that your Honour is that would make that non-parole period finish before count 17 sentence. Unless my maths is really bad.
HIS HONOUR: Well that is okay, yes, and that results in an overall sentence of four years and three months. So we are thinking that I start on 14 January 2012 and expires on 13 December 2015.
GRIMES: Yes.
HIS HONOUR: Which means it finishes after count 17 and also is an overall sentence of four years and three months, I think, Mr Phelan?
PHELAN: If that was the non-parole period set, starting from count 1, being the start date of 14 January 2012 for an effective four year and three month non-parole period then it would be three years eleven months non-parole period on counts 1 to 15.
GRIMES: And it will take us to 13 December 2015.
Mr James, I apologise for that. The overall sentence is the same, seven years and one month, the overall non-parole period, the overall time in gaol I should say, minimum time in gaol is the same, four years and three months, one year fixed, four years fixed, and then a non-parole period of three years and eleven months, which I fixed for all of counts 1 to 15. That commences when count 1 starts, 14 January 2012, and that non-parole period expires on 13 December 2015. So your first date that you are eligible for release on parole is 13 December 2015. All right, is that now right?
GRIMES: Yes your Honour.
PHELAN: Yes your Honour.
HIS HONOUR: Now Ms Grimes you had some other housekeeping matters.
GRIMES: Yes your Honour there is a forfeiture, we are seeking under s 23ZD of the Crimes Act of two items, an X-Blade computer tower and Dell grey laptop.
HIS HONOUR: Do you want to be heard on that?
PHELAN: No your Honour.
I make a forfeiture order under s 23ZD of Crimes Act 1914 (Commonwealth) in respect of the Dell computer and the X-Blade tower.
HIS HONOUR: Anything else?
GRIMES: No your Honour.
HIS HONOUR: Is it a Dell laptop computer?
GRIMES: Yes, a grey Dell laptop.
HIS HONOUR: I normally direct a transcript of these sentences, I will direct that now.
[2]
Amendments
23 July 2013 - Proceedings re-opened under s 43 of the Crimes (Sentencing Procedure) Act 1999. Sentences referred to in corrected in R (Commonwealth) v Paul James [2013] NSWDC 113.
Amended paragraphs: 45, 60,62
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Decision last updated: 23 July 2013