R v Hill
[2015] ACTSC 391
•16 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hill |
Citation: | [2015] ACTSC 391 |
Hearing Date(s): | 9 November, 15 December 2015 |
DecisionDate: | 16 December 2015 |
Before: | Robinson AJ |
Decision: | See [15] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service for child abuse – offending at lower end of seriousness – deterrence high priority. |
Legislation Cited: | Criminal Code Act 1995 (Cth) s 474.19, 474.22 Crimes Act 1900 (ACT) ss 24, 54, 61 |
Cases Cited: | R v De Leeuw [2015] NSWCCA 183 The Queen v Pham [2015] HCA 39 |
Parties: | The Queen (Crown) Kenneth Edward Hill (Offender) |
Representation: | Counsel Ms S Jowitt (Crown) Ms S Saikal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 46 of 2015 |
Robinson AJ:
Kenneth Edward Hill, the offender, has pleaded guilty to one count of using a carriage service to access child pornography material during the period 22 May 2014 and 26 July 2014.
The offence of using a carriage service to access child pornography material is contrary to s 474.19 of the Criminal Code Act 1995 (Cth) and carries a penalty of 15 years’ imprisonment.
On 20 August 2014, AFP officers executed a search warrant at the offender’s accommodation. During the course of that execution the offender returned home to his accommodation and he was placed under arrest. At the time of his arrest he was in possession of his mobile telephone. When this mobile telephone was later analysed it was found to contain over 5800 images. These images had been accessed but not down loaded and saved to the phone. Officers conducted an analysis of about 500 of those images, selected on the basis that the images were each 30 kilobytes or larger in size. There were 64 of those 500 or so images which were of child pornography. Of these child pornography images, 62 were classified at CETS 1 (material depicts non-sexual activity, including nudity and sexually suggestive posing) and the remaining 2 images were classified as CETS 3 (material depicts non-penetrative sexual activity between children and adults). This classification system is set out in detail at [22] in R v Ferguson [2015] ACTSC 363. It will be seen that the offending is at the lower end of seriousness as it was in the case of R v Falzon [2015] ACTSC 104.
All of the images examined had been accessed by the offender via his mobile phone from the Internet. The history recorded in the offender’s mobile telephone identified three discrete time periods in which the offender used his mobile phone to access these images. These were the period between 23 May 2014 and 28 May 2014, the period between 9 July 2014 to 12 July 2014 and the period between 23 July 2014 and 25 July 2014. These periods correspond to the purchase by the offender of “phone credits” after which the offender almost immediately accessed the Internet in a search for sexual images. It is sufficient to set out some of the search terms which the offender used to find images on his mobile phone in order to give a description to the offender’s conduct. These terms included-naturist juniors, naked girls images, naked family images, nudist kids beach images, little pussy images, little girls nudism images, naked girls images, naked Asian teen girls images, nudist beach family images, kids images, Asian teen pussy images and schoolgirls pussy images.
Procedural History
The offender was originally charged before the Magistrates Court on 11 February 2015 with using a carriage service to access child abuse material contrary to s 474.22 of the Criminal Code Act 1995. He pleaded not guilty to this charge and was committed to the Supreme Court on 3 March 2015 for trial. On 22 April 2015 the Director filed an indictment alleging the charge under s 474.19 of the Criminal Code Act in substitution for the charge before the Magistrate. The trial on the ex officio indictment was listed to commence on 23 November 2015. On 9 November 2015 the offender pleaded guilty to the one count of the indictment and stands for sentence. This plea of guilty against the background of a strong Crown case allows for an approximate 10 per cent reduction in the otherwise applicable sentence.
Criminal History and Current Custody
The offender came before me for sentence on previous matters on 25 September 2015. (See The Queen v Hill [2015] ACTSC 289). It is convenient to incorporate some of my observations on that occasion into these remarks upon sentence to explain the disposition of this sentencing proceeding.
The offender had only minor matters on his history until he reached the age of about 30. He was then convicted of an assault occurring on 23 August 2010. This was dealt with by way of a Good Behaviour Order. On 30 April 2014 he committed an offence under s 61 (2) of the Crimes Act. He was found guilty of this offence after a hearing in the Magistrates Court. The complainant was a young pre-pubescent girl walking home from school. The Sentencing Magistrate described it as “predatory behaviour”. The Magistrate said “the defendant was clearly watching and waiting for an opportunity to do what he did”. The offender had grabbed the girl with one hand and had his hand on her vagina outside the leggings. The sentence imposed upon the offender for that offence was 18 months’ imprisonment to commence on 21 August 2014. The offender was to be released after serving 12 months, the balance to be suspended upon entry into a Good Behaviour Order. The offender was not released on 20 August 2015 and his custody since that date is attributable to the two offences which I dealt with in The Queen v Hill [2015] ACTSC 289. I imposed a sentence under s 54 of the Crimes Act for sexual intercourse without consent of three years and I imposed the sentence under s 24 of the Crimes Act for assault occasioning actual bodily harm of nine months. Those sentences were backdated so as to each commence on 20 August 2015. In respect of those sentences I imposed a parole period such that the offender would not be eligible for parole before 19 August 2017.
It will be seen that the offending for which the offender is currently to be sentenced occurred in the period 22 May 2014 to 26 July 2014, being a period during which the offender was on conditional liberty as a result of conditions imposed upon him following him being charged with the s 61 (2) offence set out above. The offender has not served any period of imprisonment referrable to the current charge.
Federal Regime
The offender falls to be sentenced under the Crimes Act 1914 (Cth). I also approach the task consistently with The Queen v Pham [2015] HCA 39.
The Director of Public Prosecutions submits that Maxwell P erred in holding that the respondent was entitled to expect that he would be sentenced in accordance with current sentencing practices in Victoria as opposed to the relevant range of sentences established across all States and Territories.
That contention should be accepted. As Hili v The Queen (2010) 242 CLR 520 made clear, where a State court is required to sentence an offender for a federal offence, the need for sentencing consistency throughout Australia requires the court to have regard to sentencing practices across the country and to follow decisions of intermediate appellate courts in other States and Territories unless convinced that they are plainly wrong.
Subjective Circumstances
The report of Dr Allnutt relied upon in [2015] ACTSC 289 was also tendered in these proceedings. I outlined its content in those proceedings. The circumstances of the current offence were not made known to Dr Allnutt for the purposes of his report. In addition, the Pre Sentence Report from [2015] ACTSC 289 was also was tendered. I repeat what I said in those proceedings at [19] to [33].
The offender has shown some progress in rehabilitation whilst in prison. His prospects of success must be still be regarded as uncertain.
Principles
I have had regard to the principles from R v Porte [2015] NSWCCA 174 at [63] and R v De Leeuw [2015] NSWCCA 183 at [72] and distilled in R v Ferguson [2015] ACTSC 363 at [48] per Murrell CJ. I have also had regard to the observation of Mildren J (with Riley CJ and Southwood J agreeing) in The Queen v Hancock [2011] NTCCA 14 at [14] that the way an offender organises images on a computer/phone may be indicative of his level of interest in the material and that the offence will be less serious if the images have been viewed but not stored.
I take into account that deterrence is a high priority with this type of offence and that it is an offence difficult to detect. Every viewer of child pornography, even images on the lower level of offending, helps to create a market for child pornography and exploitation.
Totality
The offender has now been in custody since 21 August 2014. He is not currently eligible for parole before 19 August 2017.
Order
For the offence of using a carriage service to access child pornography material contrary to s 474.19 of the Criminal Code Act 1995 (Cth), I sentence you to imprisonment for 14 months. I have reduced that sentence by approximately 10 per cent in recognition of your plea of guilty. That sentence is to commence on 19 August 2017. In relation to this offence I specify a minimum term before which you are not to be released of 7 months. Thereafter, I order that you are to be released from imprisonment upon entering into a recognisance release order, upon giving security to the value of $50 without surety, and is to comply with the following conditions:
(i)Be of good behaviour of a period of two years, ending on 17 March 2020;
(ii)Report to ACT Corrective Services at Eclipse House within two working days of release;
(iii)Accept the supervision of ACT Corrective Services, or their delegates, for the period of two years, or shorter as determined by ACT Corrective Services; and
(iv)Undertake any adult sexual offender program or participate in any counselling as directed by ACT Corrective Services, or their delegates.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Robinson. Associate: Date: 16 December 2015 |
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