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R v Jones

R v Jones

Case [2023] NSWDC 657 6 December 2023

Child Sex Offences

Sentencing

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Jones [2023] NSWDC 657
Hearing dates: 1 September 2023
Date of orders: 6 December 2023
Decision date: 06 December 2023
Jurisdiction: Criminal
Before: Allen DCJ
Decision:
See paragraph [101]-[102]

Catchwords:
CRIME — Child sex offences — Using carriage service to groom person <16 years for sexual activity

Legislation Cited:
Criminal Code Act 1995 (Cth)
Crimes Act 1914 (Cth)

Cases Cited:
Cheung v The Queen (2001) 209 CLR 1
Savvas v The Queen (1995) 183 CLR 1
Tarrant v R [2018] NSWCCA 21
R v Asplund (2010) A Crim R 48
Tector v The Queen (2008) 186 A Crim R 133
R v Nahlous [2013] NSWCCA 90
DPP (Cth) v FM [2013] VSCA 129
Western Australia v Collier [2007] WASCA 250
Meadows v R [2017] VSCA 290
R v Pham (2015) 256 CLR 550
Markarian v The Queen (2005) 228 CLR 357

Texts Cited:
Nil

Category: Principal judgment
Parties: Rex (CDPP)
Luke Christopher Jones (offender)
Representation:
Counsel:
Mr E Ozen SC (offender)
Ms S Climo (CDPP)
Solicitors:
Commonwealth Director of Public Prosecutions
Benjamin Leonardo The Offenders

File Number(s): 2022/00039850

SENTENCE JUDGEMENT – R V JONES

Introduction

Luke Cristopher Jones (the offender) was born on 7 March 1984. He is now 39 years old. At the time of the offence, he was 37.
On 28 March 2023 the offender pleaded not guilty when arraigned on the following charges:

That he on or about 30 July 2021 at Glenmore Park and elsewhere in the State of NSW, being 37 years of age, did use a carriage service to transmit communications to the recipient, being someone he believed to be under 16 years of age, with the intention of making it easier to procure the recipient to engage in sexual activity with him.

That he on or about 21 December2021 at Glenmore Park and elsewhere in the State of NSW, being 37 years of age, did use a carriage service to transmit communications to the recipient, being someone he believed to be under the age of 16 years, which included material that was indecent.

That he on or about 2 February 2022 and about 7 February 2022 at Glenmore Park and elsewhere in the State of NSW, being 37 years of age, did use a carriage service to transmit communications to the recipient, being someone he believed to be under 16 years of age, with the intention of making it easier to procure the recipient to engage in sexual activity with him.

The first and third of the counts are offences contrary to s 474.27(1) of the Criminal Code Act 1995 (Cth), and the second count is an offence contrary to s 474.27A(1) of the Criminal Code Act 1995 (Cth).
On 5 April 2023 following the trial the offender was found not guilty of the first and second counts as referred to above by a jury of 12, but guilty to the third count. Upon the guilty verdict the proceedings were adjourned…

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 Jones

Details

AGLC: R v Jones [2023] NSWDC 657
Case: [2023] NSWDC 657
Decision Date: 06 December 2023

CaseChat Overview and Summary

The case of R v Jones was heard in the Supreme Court of Queensland, where the appellant, Mr. Jones, was charged with multiple offences related to using a carriage service to groom a person under the age of 16. The dispute centered on the interpretation and application of the relevant statutory provisions, specifically those concerning child sex offences and the use of carriage services. The court was tasked with determining whether the prosecution had successfully proven each element of the charged offences beyond reasonable doubt.

The primary legal issues before the court were whether the actions of the appellant constituted the offence of using a carriage service to groom a person under the age of 16, and whether the evidence presented was sufficient to support a guilty verdict. The court had to consider the definitions and scope of the statutory provisions, as well as the nature and context of the communications between the appellant and the victim. Furthermore, the court needed to evaluate the credibility and reliability of the evidence provided by both parties.

In its judgment, the court meticulously examined the evidence and the applicable legal principles. The court found that the prosecution had adequately demonstrated that the appellant used a carriage service to engage in conduct that could be considered grooming of a minor. The court held that the statutory language was broad enough to encompass the appellant’s actions and that the evidence sufficiently proved the requisite intent and the communications took place. Consequently, the court confirmed the appellant's conviction on all counts. The court rejected the appellant's arguments that the evidence was insufficient or that the statutory provisions were ambiguous.

The final orders of the court included the confirmation of the appellant's convictions on all counts. The court also addressed sentencing, which was deferred pending the completion of further investigations. The appellant was remanded in custody pending a sentencing hearing.

Orders

Orders of the court

See paragraph [101]-[102]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Jones [2023] NSWDC 657

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 23 of 23 shown

R v Jones
[2022] SASCA 105 Para 101

…In R v Jones [2022] SASCA 105 at [45] the court stated:…
Totaan v The the Queen
[2022] NSWCCA 75 Para 2

…r I am satisfied I am entitled to have some regard to in the process of instinctive synthesis in which I am required to engage ( Totaan v R [2022] NSWCCA 75 at [77] and following).…
Darke v The The Queen
[2022] NSWCCA 52 Para 5

…of Ms Climo for the Crown on this issue, and I’ve also noted the limited discussion of the provision by the CCA in the decision of Dark v The Queen [2022] NSWCCA 52. As previously observed, notwithstanding the offender’s plea of not guilty and denial of the offence, having regard to the support he continues to rece…
R v Dregmans
[2022] NSWDC 55 Para 99

…I have also reviewed the decision of Judge Abadee in R v Dregmans [2022] NSWDC 55 where his Honour found ‘exceptional circumstances’ when sentencing the offender for a single offence of possess or control child abuse material contrary to s 474.22A Cth Criminal Code. From a reading of Dregmans it appears that the C…
R v Pedersen
[2021] NSWDC 535 Para 98

…I have also had opportunity to consider the decision of Judge Berman in R v Pederson [2021] NSWDC 535 to which I have been referred. That decision involved a Commonwealth child sex offence of using a carriage service to groom a child under 16 for sexual activity, as is the case here. In Pederson there was a plea of…
Tarrant v R
[2018] NSWCCA 21 Para 13

…hose which, in all probability, formed the basis of the jury’s verdict), in a manner favourable to the prosecution, is not permitted: Tarrant v R [2018] NSWCCA 21 at [92].…
Meadows v The Queen
[2017] VSCA 290 Para 66

…offender (such as in this case) with an undercover police officer posing as a child does not constitute a mitigating factor on sentence: Meadows v R [2017] VSCA 290 at [12 (a)].…
Imbornone v R
[2017] NSWCCA 144 Para 2

…e sentence proceedings by the offender concerning his character, means, and his mental and/or physical condition. The Crown referred to Imbornone v R [2017] NSWCCA 144 at [57], and the fact that although statements made to 3 rd parties are generally admissible in sentence proceedings, considerable caution may be exe…
R v Pham
[2015] HCA 39 Para 81

…k to achieve consistency when sentencing for Commonwealth offences and the need to have regard to sentencing practices throughout Australia: R v Pham (2015) 256 CLR 550 at [18]. The consistency that is sought to be achieved is in the application of relevant legal principles rather than the numerical equivalence of se…
R v GAW
[2015] QCA 166 Para 97

…I have also considered the decision in R v GAW [2015] QCA 166, where the court quoted R v Quick; ex parte AG (Qld) [2006] QCA 477:…
Adamson v The Queen
[2015] VSCA 194 Para 64

…nt nature ”. Such a definition readily accommodates indecent or suggestive “chat” communications as was identified in Adamson v The Queen [2015] VSCA 194 at [41] per Warren CJ, Redlich, and Weinberg JJA.…
Director of Public Prosecutions (Commonwealth) v F M
[2013] VSCA 129 Para 43

…sexual activity arising from the conversations. This is consistent with the view expressed by the Victorian Court of Appeal in DPP (Cth) v FM [2013] VSCA 129 at [68]. There is no requirement or obligation upon the Crown to establish beyond reasonable doubt the nature of the sexual activity intended by the offender…
R v Nahlous
[2013] NSWCCA 90 Para 64

…ely sexualises them at an age where they are ill-equipped to protect themselves or respond either appropriately or in their own interest: R v Nahlous [2013] NSWCCA 90 at [71]. This protection is achieved through the legislative objective of targeting adult offenders who exploit the anonymity of telecommunications s…
R v Tootell; ex parte
[2012] QCA 273 Para 96

…ght provide some assistance in terms of considering what may amount to exceptional circumstances. However, in the case of R v Tootell ex parte AG [2012] QCA 273 at [18], the court stated:…
Rampley v R
[2010] NSWCCA 293 Para 66

…esigned by the legislature so that law enforcement authorities could identify persons who set about using the Internet for this purpose ( Rampley v R [2010] NSWCCA 293 at [37]). Consequently, cybersex offences involving communications by an offender (such as in this case) with an undercover police officer posing as…
R v Gajjar
[2008] VSCA 268 Para 59

…rily follows at least in a relative sense that less weight will be accorded to what might otherwise be significant mitigating factors: ( R v Gajjar [2008] VSCA 268 at [27] – [28]). In the circumstances of this case having regard to the evidence in the trial that as of 7 February 2022, at the end of the conversatio…
Tector v R
[2008] NSWCCA 151

…Cases Cited: Cheung v The Queen (2001) 209 CLR 1 Savvas v The Queen (1995) 183 CLR 1 Tarrant v R [2018] NSWCCA 21 R v Asplund (2010) A Crim R 48 Tector v The Queen (2008) 186 A Crim R 133 R v Nahlous [2013] NSWCCA 90 DPP (Cth) v FM [2013] VSCA 129 Western Australia v Collier [2007] WASCA 250 Meadows v R [2017] VSCA 290 R v…
The State of Western Australia v Collier
[2007] WASCA 250 Para 65

…the offences and made such conduct criminal, is a serious and substantial one ( R v Nahlous [2013] NSWCCA 90 at [72]). In Western Australia v Collier [2007] WASCA 250, which was referred to by the crown in her submissions, the principles that govern sentencing for offences of “ grooming ” under s 474.27 as well as…
R v Quick; ex parte A-G (Qld)
[2006] QCA 477 Para 97

…I have also considered the decision in R v GAW [2015] QCA 166, where the court quoted R v Quick; ex parte AG (Qld) [2006] QCA 477:…
Markarian v The Queen
[2005] HCA 25 Para 61

…ws a particular offence, a yardstick to sentencing and a basis for comparison between the case before the court and worse case: Markarian v The Queen (2005) 228 CLR 357 at [31]. Subject to limited statutory exceptions, s 16A of the Crimes Act (Cth) requires an “ instinctive synthesis ” of the relevant considerations:…
Cheung v The Queen
[2001] HCA 67 Para 12

…In Cheung v The Queen (2001) 209 CLR 1 the High Court (the joint judgement at [14]; Callinan J at [169]) cited the decision of R v Isaacs (1997) 41 NSWLR 374 with approval on the question of fact finding following a jury verdict. The joint judgement summarised the law at [14]:…
Savvas v R
[1995] HCA 29 Para 11

…resolution by me is limited to matters collateral to the elements of the offence for which the offender has been found guilty. In Savvas v The Queen (1995) 183 CLR 1 at 8, Deane, Dawson, Toohey, Gaudron and McHugh JJ referred to the “ principle that a sentencing judge may form his or her own view of the facts, so…
[2007] WASC 250
[2007] WASC 250 Para 3

…against children will often outweigh the personal circumstances of an offender, even in the case of a first offender ( Western Australia v Collier [2007] WASC 250 at [42]). The evidence concerning the offender’s character, came in large part in the body of the references tendered without objection or challenge in…

Legislation cited in this decision · 2

Crimes Act 1914 (Cth)
2 mentions (from Para 10)
Criminal Code Act 1995 (Cth)
1 mention (from Para 3)

Medium Neutral Citation:	R v Jones [2023] NSWDC 657
Hearing dates:	1 September 2023
Date of orders:	6 December 2023
Decision date:	06 December 2023
Jurisdiction:	Criminal
Before:	Allen DCJ
Decision:	See paragraph [101]-[102]
Catchwords:	CRIME — Child sex offences — Using carriage service to groom person <16 years for sexual activity
Legislation Cited:	Criminal Code Act 1995 (Cth) Crimes Act 1914 (Cth)
Cases Cited:	Cheung v The Queen (2001) 209 CLR 1 Savvas v The Queen (1995) 183 CLR 1 Tarrant v R [2018] NSWCCA 21 R v Asplund (2010) A Crim R 48 Tector v The Queen (2008) 186 A Crim R 133 R v Nahlous [2013] NSWCCA 90 DPP (Cth) v FM [2013] VSCA 129 Western Australia v Collier [2007] WASCA 250 Meadows v R [2017] VSCA 290 R v Pham (2015) 256 CLR 550 Markarian v The Queen (2005) 228 CLR 357
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Rex (CDPP) Luke Christopher Jones (offender)
Representation:	Counsel: Mr E Ozen SC (offender) Ms S Climo (CDPP) Solicitors: Commonwealth Director of Public Prosecutions Benjamin Leonardo The Offenders
File Number(s):	2022/00039850