R v Francis

[2021] ACTSC 212

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Francis

Citation:

[2021] ACTSC 212

Hearing Date:

1 September 2021

DecisionDate:

1 September 2021

Before:

Elkaim J

Decision:

See [22]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Commonwealth and Territory offences – possession of child exploitation material – use of carriage service to access child pornography material – pleas of guilty

Legislation Cited:

Criminal Code 1995 (Cth) s 474.19
Crimes Act 1900 (ACT) s 65(1)

Parties:

The Queen (Crown)

Jason Scott Francis (Offender)

Representation:

Counsel

Z Hough (Crown)

G Meikle (Offender)

Solicitors

Commonwealth Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Number:

SCC 157 of 2021

ELKAIM J:

1. The offender is charged with the following offences:

(a) Using a carriage service to access child exploitation material contrary to section 474.19 of the Criminal Code 1995 (Cth), which carries a maximum penalty of imprisonment for 15 years;

(b) Possessing child exploitation material contrary to section 65(1) of the Crimes Act 1900 (ACT), which carries a maximum penalty of 7 years imprisonment and/or a $147,000 fine;

1. The offender pleaded guilty on 24 June 2021. The Crown accepts that this was the earliest available opportunity. Although the Crown case is very strong the offender is still entitled to a discount which I assess at just above 20%.

1. The facts of the offending are set out in the Agreed Statement of Facts. In relation to Count 1 the offender, on 3 August 2018, used a computer to access five files depicting one Category 1 image and four Category 2 images. He also used his mobile phone, on three separate dates, to access three separate Category 2 images.

1. Therefore, under Count 1 he accessed eight images.

1. Count 2 relates to the offender, on 5 December 2020, possessing 51 files contained either on a tablet, a micro-SD, a USB, a thumb drive and there were some hard copies in a shoebox. Two of the images were in Category 1, the balance were in Category 2.

1. I have viewed a sample of the images. Ms Meikle, on behalf of the offender, objected to me looking at the samples. She said that there was an adequate description in the statement of facts so that the Court would not obtain any assistance from actually looking at the material.

1. The Crown responded that the descriptions were brief and, more importantly, that the categorisation system now in use did not give any weight to the actual conduct being depicted. This was because it was age-based rather than activity based.

1. I thought the descriptions were basic and that in order to obtain an idea of the type of conduct the offender was viewing, that I should look at the samples. Suffice to say, as is always the case in matters of this kind, they depict the most horrific manipulation and degradation of children.

1. Frighteningly, the offender was working at a childcare centre when the offences were discovered. There is no suggestion however that any children in the centre were ever the subject of sexual criminal activity on the part of the offender.

1. The offender was born in 1978. He grew up in Sydney in a supportive home. He remains close to his parents and he currently lives with his older brother.

1. The offender completed Year 12 at school and then obtained a Certificate III in Children’s Education and a Certificate IV in Library Services. He has worked for a good deal of time in the childcare sector. He was a “casual educator” until he was arrested. He is now unemployed. He has spent two months and two weeks in custody.

1. The offender does not have any previous criminal convictions. He is however awaiting sentencing in the Magistrates Court on 30 September 2021 in respect of an assault of a child. I was informed there was no sexual element to this charge. It is sometimes said that the absence of criminal convictions in matters of this sort is of little weight. Nevertheless I do think that a previously crime free life is a matter that can be taken into account in offences of any type.

1. I regard every offence of this type as objectively serious. Nevertheless it must be recognised that some offending will be ‘worse’ than others. In this matter the offender seems to have possessed the material for about four months. This length of time suggests he obtained sexual gratification from the material. He did not try to sell it or otherwise distribute it. Compared to many other cases the number of images is relatively modest.

1. To the extent that I am compelled to do so, I agree with the submissions of the parties and rate the objective seriousness of this offending as comparatively low.

1. The Crown submitted that a term of full-time custody should be imposed. However the Crown also said:

The Crown concedes that in light of the fact the offender has spent two months and two weeks in custody, a further period of full-time custody is not required in the circumstances of this matter.

1. Ms Meikle did not seek an Intensive Correction Order but rather concentrated on reducing the overall term of imprisonment. She referred to the low likelihood of reoffending (as confirmed in the Pre-Sentence Report), the absence of a criminal record and the effect the convictions would have on the offender’s employment future.

1. A particularly worrying aspect of this case arises from this paragraph in the Pre-Sentence Report:

While Mr Francis acknowledged the SOF, he questioned the fairness of the charges and attributed a portion of blame to the police by stating they had “nerve to go questioning it.” He engaged in a level of minimisation and justification of the offences, and did not display insight into the potential impact of his actions in relation to demand of such material. Mr Francis did not acknowledge the unlawfulness of his behaviour.

1. I accept that by pleading guilty, the offender has acknowledged that his behaviour was unlawful. But he doesn’t even seem to have grasped the fact that his behaviour was morally wrong.

1. I agree with the Crown that a period of full-time imprisonment is necessary. But for the concession made by the Crown I would probably have ordered that the offender spend three months in prison before release.

1. I am anxious to send a message to all persons who view this kind of material that, when caught, they will face a severe penalty. I appreciate there have been cases where Intensive Correction Orders have been imposed. But in my view such a case must be exceptional. I think a full-time custody sentence is almost inevitable.

1. I think the preferable way to proceed is by way of a suspension of the sentence following the period in custody on condition that the offender enter into a recognisance and Good Behaviour Order for a period of 9 months. The second count should carry the longer sentence, which I think should be 7 months, reduced from 9 months for the plea of guilty.

1. I make the following orders:

(i)For Count 1 the offender is sentenced to 3 months imprisonment to commence on 22 June 2021 and end on 21 September 2021.

(ii)The term of imprisonment for Count 1 is suspended with immediate effect on condition that the offender enter into a Recognisance Release Order in the sum of $1,000 for a period of 9 months commencing today.

(iii)It is a condition of Recognisance Release Order that the offender accept the supervision of the Director-General of corrective services and obey all reasonable directions for such period as the Director-General deems appropriate.

(iv)For Count 2 the offender is sentenced to 7 months imprisonment to commence on 22 June 2021 and end on 21 January 2022.

(v)The term of imprisonment for Count 2 is suspended with immediate effect on condition that the offender enter into a Good Behaviour Order for a period of nine months commencing today.

(vi)It is a condition of Good Behaviour Order that the offender accept the supervision of the Director-General of corrective services and obey all reasonable directions for such period as the Director-General deems appropriate.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 1 September 2021