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…