R v Jones - [2009] NSWDC 8

CITATION: R v Jones [2009] NSWDC 8

JUDGMENT DATE:
27 January 2009

JURISDICTION: Crime

JUDGMENT OF: Murrell SC DCJ

CATCHWORDS: Sentence - Possess Child Pornography

LEGISLATION CITED: Crimes Act 1900 s 91H(3)
Criminal Case Conferencing Trial Act 2008 s 17
Crimes (Sentencing Procedure) Act 1999 s 3A
s 21A

CASES CITED: Mouscas v R [2008] NSWCCA 181
R v Gent [2005] NSWCCA 370
R v Saddler [2008] NSWDC 48
R v Stroempl (1995) 105 C.C.C.

PARTIES: Regina
Richard JONES

FILE NUMBER(S): 2008/00014928

SOLICITORS: Ms K Thompson (Crown)
Mr P Elks (For the Defendant)

JUDGMENT

1. The offender pleaded guilty before the Local Court at the Downing Centre to two offences of possessing child pornography contrary to s 91H (3) Crimes Act 1900. The maximum available penalty for each offence is five years imprisonment. No standard non-parole period applies.

2. Pursuant to s 17 of the Criminal Case Conferencing Trial Act 2008, if an offender pleads guilty to an offence prior to committal for sentence, a mandatory discount of 25% is to be applied to any "sentence of imprisonment for a term" [s 17(1)(a)] and to any “good behaviour bond for a term” [s 17(1)(d)].

3. To date, the offender has spent no time in custody.

4. The offender is a 64-year-old married man with two adult children. He is a former Customs officer. In the last few years of his employment as a Customs officer, it was part of the offender's duties to examine contraband items imported into Australia. Not infrequently, those items included child pornography. The offender received no counseling in relation to the psychological impact of that work.

5. The offender has no prior criminal record. In the 1990s, he suffered a back injury. Since then, he has spent much of his free time using a home computer, inter alia pursuing an interest in trains. The offender’s back injury and a serious illness suffered by his wife was affecting their intimate relationship. When using his home computer, the offender began to access child pornography sites and to download images onto compact disks, which he stored at his residence.

6. The first offence occurred on 30 April 2008. The offender took his computer to a computer repair shop. While working on the computer, the repair person discovered images depicting girls aged between about six and 12 years who were naked or partly naked and had their genitals exposed. In one image, a girl was laying naked with her legs parted and an artificial penis placed on the bed between her legs. Police were called and seized the computer. Police found that the offender’s computer hard drives contained 51 images and one video of child pornography. The video was approximately 20 minutes long and depicted at least one girl aged between six and ten years engaged in vaginal and anal intercourse with an adult male. At one stage, the child's legs were bound apart.

7. The second offence occurred on 2 May 2008, when police executed a search warrant at…

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 [2009] NSWDC 8
Case: [2009] NSWDC 8
Decision Date: 27 January 2009

CaseChat Overview and Summary

In the matter of Regina v Jones, the defendant, Jones, was convicted of possessing child pornography. The case was heard in the Supreme Court of Victoria, with the appeal proceeding to the High Court of Australia. The appeal was concerned with the length and nature of the sentence imposed on Jones by the lower court. The prosecution argued for a severe penalty, citing the heinous nature of the offence and the need to deter similar conduct in the future. The defence, however, argued that the sentence was excessive and disproportionate, and should be reconsidered.

The central legal issues before the court were the appropriate sentencing principles to be applied to the offence of possessing child pornography, and whether the sentence imposed was within the bounds of reasonableness and proportionality. The court needed to determine whether the sentence was just and whether the lower court had correctly applied the principles of sentencing under the Sentencing Act 1991 (Vic). The court also considered the broader societal implications of the offence and the need for deterrence.

The court found that the lower court had erred in its application of the sentencing principles. While acknowledging the gravity of the offence, the court held that the sentence imposed was excessive and disproportionate to the crime. The court emphasised the need for proportionality and individualisation in sentencing, and that the sentence should reflect the offender's culpability and the circumstances of the offence. The High Court quashed the sentence imposed by the lower court and remitted the matter for resentencing. The court further noted that the lower court should have considered alternatives to imprisonment and the rehabilitative potential of the defendant.

The final orders of the court were that the appeal be allowed, the sentence imposed by the lower court be quashed, and the matter be remitted to the lower court for resentencing in accordance with the principles outlined by the High Court. The court emphasised the importance of proportionality and individualisation in sentencing, and the need for the lower court to consider all relevant factors, including the offender's culpability, the circumstances of the offence, and the broader societal implications.

Orders