R v Jones - [2021] NSWDC 713

District Court

New South Wales

Medium Neutral Citation: R v Jones [2021] NSWDC 713
Hearing dates: 7 October 2021
Date of orders: 7 October 2021
Decision date: 07 October 2021
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
I impose a sentence of imprisonment of 12 months. Pursuant to s 20(1)(b) Crimes Act 1914 (Cth) the offender is to be released forthwith, taking into account the period of 4 months already served, on the condition that the offender enters into a recognisance: at [33].

Catchwords:
SENTENCING — Mitigating factors — Good character — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend
SENTENCING — Penalties — Imprisonment — Recognisance
SENTENCING — Federal offenders — Relevant considerations

Legislation Cited:
Crimes Act 1914
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth
Criminal Code (Cth)

Cases Cited:
Barbieri v R [2016] NSWCCA 295
Devaneyv R [2012] NSWCCA 285
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
DPP (Cth) v Singh [2017] VSCA 146
Luque v R [2017] NSWCCA 226
R v Fuller [2010] NSWCCA 192

Category: Sentence
Parties:
Regina (Commonwealth Director of Public Prosecutions)
Garry Jones (Offender)
Representation:
Ms Ranson (Solicitor for the Commonwealth Director of Public Prosecutions)
Mr Bickford (Counsel for the Offender)

File Number(s): 2020/216731

Judgment

Garry Jones, born in 1963, and has never been charged with any offence before he was arrested on 23 July 2020. He was charge with using a carriage service to procure a person under 16 years for sexual activity between 23 June and 23 July 2020 contrary to s 472.26 of the Criminal Code (Cth). The offence carries a maximum penalty of 15 years imprisonment.
He spent 141 days in custody before being released on strict bail conditions.
He is to be dealt with on a s 16BA schedule for a similar charge in the period between 17 and 22 June 2020.
The ultimate submission by Mr Bickford of counsel for the offender, is that the term of imprisonment of slightly in excess of four months that he has already served should be an appropriate term before his release on a recognizance order. I accept that submission for the reasons that will follow.
The offending was uncovered by New South Wales Police attached to the State Crime Command Child Exploitation Intervention Unit, who commenced a covert online investigation utilising assumed online identity (AOI) of a 14 year old girl.
The offender had posted an ad on a website titled “Genuine Daddy for Real Female 53”. The facts set out a lengthy set of extracts of the correspondence between the offender and the AOI in relation to both the schedule offence and the principal offence.
In short, the facts are sufficiently summarised in the Crown submissions, as follows, after posting the initial ad on the website, the offender was told that he was conversing with a 14 year old girl and this was repeated through their conversations. He would have been aware that…

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 [2021] NSWDC 713
Case: [2021] NSWDC 713
Decision Date: 07 October 2021

CaseChat Overview and Summary

In the case of R v Jones, the defendant faced sentencing following a plea of guilty to federal offences. The court had to determine an appropriate sentence, taking into account mitigating factors such as the defendant's good character, the plea of guilty, evidence of rehabilitation, and the display of remorse. Additionally, the court had to assess the likelihood of the defendant re-offending and the broader implications of imprisonment versus recognisance.

The primary legal issues before the court were the consideration of mitigating factors and the determination of an appropriate penalty, including whether imprisonment or recognisance would better serve justice. The court had to balance the need for punishment and deterrence against the potential for rehabilitation and the defendant's prospects of reintegration into society.

The court carefully considered the mitigating factors presented, including the defendant's good character and the plea of guilty, which typically warrant a reduced sentence. The evidence of rehabilitation and the defendant's expression of remorse further supported a sentence that would facilitate reintegration into society. After weighing these factors against the need for punishment and deterrence, the court concluded that a sentence of imprisonment was appropriate, but with an early release condition. The court imposed a sentence of imprisonment for 12 months, with the defendant to be released forthwith due to the 4 months already served. The court mandated that the defendant enter into a recognisance as a condition of release, reflecting a balance between punishment and the potential for rehabilitation.

The final order was that the defendant be released immediately from imprisonment, taking into account the time already served, on the condition that they enter into a recognisance as per the court's direction.

Orders

Orders of the court

I impose a sentence of imprisonment of 12 months. Pursuant to s 20(1)(b) Crimes Act 1914 (Cth) the offender is to be released forthwith, taking into account the period of 4 months already served, on the condition that the offender enters into a recognisance: at [33].

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 Jones [2021] NSWDC 713
Hearing dates:	7 October 2021
Date of orders:	7 October 2021
Decision date:	07 October 2021
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	I impose a sentence of imprisonment of 12 months. Pursuant to s 20(1)(b) Crimes Act 1914 (Cth) the offender is to be released forthwith, taking into account the period of 4 months already served, on the condition that the offender enters into a recognisance: at [33].
Catchwords:	SENTENCING — Mitigating factors — Good character — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend SENTENCING — Penalties — Imprisonment — Recognisance SENTENCING — Federal offenders — Relevant considerations
Legislation Cited:	Crimes Act 1914 Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth Criminal Code (Cth)
Cases Cited:	Barbieri v R [2016] NSWCCA 295 Devaneyv R [2012] NSWCCA 285 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 DPP (Cth) v Singh [2017] VSCA 146 Luque v R [2017] NSWCCA 226 R v Fuller [2010] NSWCCA 192
Category:	Sentence
Parties:	Regina (Commonwealth Director of Public Prosecutions) Garry Jones (Offender)
Representation:	Ms Ranson (Solicitor for the Commonwealth Director of Public Prosecutions) Mr Bickford (Counsel for the Offender)
File Number(s):	2020/216731