R v Jones - [2021] NSWDC 478

District Court

New South Wales

Medium Neutral Citation: R v Jones [2021] NSWDC 478
Hearing dates: 2 and 16 August 2021
Date of orders: 3 September 2021
Decision date: 03 September 2021
Jurisdiction: Criminal
Before: Weinstein SC DCJ
Decision:
I direct you to be released forthwith, and upon entering into a recognizance for 24 months pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth) with security in the sum of $100, and with the conditions that you:-
a) be of good behaviour;
b) accept the supervision and guidance of Community Corrections for as long as that service consider appropriate. To facilitate that order you must contact the Coffs Harbour Community Corrections Office by 10 September 2021;
c) not travel interstate without the written permission of your probation officer;
d) undertake such treatment or rehabilitation programs that your probation officer reasonably directs; and
e) continue to have psychological counselling with Carollyne Yousseff or another psychologist nominated by your usual general practitioner for the next 24 months or for as long as your treating psychologist considers appropriate.

Catchwords:
CRIME – Child abuse material – Using carriage service to access child abuse material – recklessness
SENTENCING – relevant factors on sentence – Circumstances of offence

Legislation Cited:
Criminal Code Act 1995 (Cth)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Azzopardi v The Queen (2011) 35 VR 43
Hill v the Queen; Jones v the Queen [2010] HCA 45
Markarian v The Queen (2005) 228 CLR 357
Power v R [1974] HCA 26
R v De Leeuw [2015] NSWCCA 183
R v Hutchinson [2018] NSWCCA 152
The Queen v Pham, (2015) 256 CLR 550

Category: Sentence
Parties:
Regina
Hayden Jones
Representation:
Ms Debenham (CDPP)

Mr Tuckey (Counsel for the offender)
Elizabeth Tsitsos (Armstrong Legal)

File Number(s): 2020/248397

Judgment

The offender Hayden Jones, born in 2000 is before the court for sentence for the offence of using carriage service to access child abuse material contrary to section 474.22(1) of the Criminal CodeAct 1995 (Cth) for which the maximum penalty is 15 years imprisonment.
The elements of the offence are as follows:

(1) A person commits an offence if:
(a) the person:
(i) accesses material; or
(ii) causes material to be transmitted to himself or herself; or
(iii) transmits, makes available, publishes, distributes, advertises or promotes material; or
(iv) solicits material; and
(aa) the person does so using a carriage service; and
(b) the material is child abuse material.
Penalty: Imprisonment for 15 years.
(2) To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1):
(a) intention is the fault element for the conduct referred to in paragraph (1)(a);
(b) recklessness is the fault element for the circumstances referred to in paragraph (1)(b).

The Court Attendance Notice in this matter particularises access as the relevant element of the offence.

Agreed Facts

The agreed facts, signed by the offender, are as follows:
Hayden Jones was 18 and 19 years old…

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 478
Case: [2021] NSWDC 478
Decision Date: 03 September 2021

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Jones, the respondent was found guilty of using a carriage service to access child abuse material, an offence under section 269AB(1) of the Criminal Code Act 1995 (Cth). The matter was heard in the District Court of New South Wales. The respondent was sentenced to a term of imprisonment, suspended for a period of 24 months, and ordered to adhere to certain conditions of supervision and rehabilitation.

The primary legal issue before the court was the determination of the appropriate sentence for the respondent, taking into account the nature and circumstances of the offence. The court had to consider the respondent's culpability, the seriousness of the offence, and any relevant mitigating or aggravating factors. The respondent's level of culpability, specifically whether the offence was committed with recklessness, was a key factor in the sentencing decision.

The court found the respondent to be reckless in accessing the child abuse material, and considered the offence to be serious due to the nature of the material and the potential harm to children. However, the court also noted the respondent's early guilty plea, remorse, and the absence of any prior criminal history as mitigating factors. After weighing all the relevant factors, the court decided that a suspended sentence with conditions of supervision and rehabilitation was the most appropriate outcome. The court ordered the respondent to be released forthwith, subject to the conditions outlined in the order.

Orders

Orders of the court

I direct you to be released forthwith, and upon entering into a recognizance for 24 months pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth) with security in the sum of $100, and with the conditions that you:-

a) be of good behaviour;

b) accept the supervision and guidance of Community Corrections for as long as that service consider appropriate. To facilitate that order you must contact the Coffs Harbour Community Corrections Office by 10 September 2021;

c) not travel interstate without the written permission of your probation officer;

d) undertake such treatment or rehabilitation programs that your probation officer reasonably directs; and

e) continue to have psychological counselling with Carollyne Yousseff or another psychologist nominated by your usual general practitioner for the next 24 months or for as long as your treating psychologist considers appropriate.

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 478
Hearing dates:	2 and 16 August 2021
Date of orders:	3 September 2021
Decision date:	03 September 2021
Jurisdiction:	Criminal
Before:	Weinstein SC DCJ
Decision:	I direct you to be released forthwith, and upon entering into a recognizance for 24 months pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth) with security in the sum of $100, and with the conditions that you:- a) be of good behaviour; b) accept the supervision and guidance of Community Corrections for as long as that service consider appropriate. To facilitate that order you must contact the Coffs Harbour Community Corrections Office by 10 September 2021; c) not travel interstate without the written permission of your probation officer; d) undertake such treatment or rehabilitation programs that your probation officer reasonably directs; and e) continue to have psychological counselling with Carollyne Yousseff or another psychologist nominated by your usual general practitioner for the next 24 months or for as long as your treating psychologist considers appropriate.
Catchwords:	CRIME – Child abuse material – Using carriage service to access child abuse material – recklessness SENTENCING – relevant factors on sentence – Circumstances of offence
Legislation Cited:	Criminal Code Act 1995 (Cth) Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Azzopardi v The Queen (2011) 35 VR 43 Hill v the Queen; Jones v the Queen [2010] HCA 45 Markarian v The Queen (2005) 228 CLR 357 Power v R [1974] HCA 26 R v De Leeuw [2015] NSWCCA 183 R v Hutchinson [2018] NSWCCA 152 The Queen v Pham, (2015) 256 CLR 550
Category:	Sentence
Parties:	Regina Hayden Jones
Representation:	Ms Debenham (CDPP) Mr Tuckey (Counsel for the offender) Elizabeth Tsitsos (Armstrong Legal)
File Number(s):	2020/248397