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R v Jones

R v Jones

Case [1999] WASCA 24 24 May 1999

Sentencing

Possession of Child Pornography

Criminal Liability

Criminal Law

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R -v- JONES [1999] WASCA 24

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 24
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:18/1999	Heard:	5 MAY 1999
Coram:	KENNEDY J IPP J WALLWORK J	Delivered:	24/05/99
No of pages:	12	Judgment Part:	1 of 1
Result:	Appeal allowed. Sentence of 18 months immediate imprisonment substituted for 2 year suspended sentence.
PDF Version

Parties:	THE QUEEN STEPHEN ALLAN JONES
Catchwords:	Criminal law and procedure Sentencing Possession of child pornography In excess of 162,000 images on CD Roms and hard drives of computer In excess of 80,600 different images Whether suspended sentence of 2 years' imprisonment appropriate Sentence of 18 months immediate imprisonment substituted
Legislation:	Censorship Act 1996, s60(4)
Case References:	R v Follows [1997] 2 All ER 548 R v Grein [1989] WAR 178 R v Liddington (1977) 18 WAR 394 R v Rudd, unreported; CCA SCt of WA; Library No 940630; 10 November 1994 R v Russell (1986) 8 Cr App R (S) 368 R v Stroempl (1995) 105 CCC (3d) 187 Britten v The Queen, unreported; CCA SCt of WA; Library No 940079; 21 February 1994 R v Dao, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999 R v Dinsdale, unreported; CCA SCt of WA; Library No 990021; 2 February 1999 R v GP (1997) 18 WAR 196 R v Osenkowski (1982) 13 SASR 212 R v Percy [1975] Tas SR 62 R v Raggett (1990) 50 A Crim R 41 R v Ritchie, unreported; Ontario Court of Justice (Provincial Division); [1997] OJ No 5564; 18 September 1997 R v Thomas (1997) 96 A Crim R 32 R v Valentini (1980) 2 A Crim R 170

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- JONES [1999] WASCA 24 CORAM : KENNEDY J

IPP J

WALLWORK J

HEARD : 5 MAY 1999 DELIVERED : 24 MAY 1999 FILE NO/S : CCA 18 of 1999 BETWEEN : THE QUEEN

Appellant

AND

STEPHEN ALLAN JONES

Respondent

Catchwords:

Criminal law and procedure - Sentencing - Possession of child pornography - In excess of 162,000 images on CD Roms and hard drives of computer - In excess of 80,600 different images - Whether suspended sentence of 2 years' imprisonment appropriate - Sentence of 18 months immediate imprisonment substituted

Legislation:

Censorship Act 1996, s60(4)

(Page 2)

Result:

Appeal allowed. Sentence of 18 months immediate imprisonment substituted for 2 year suspended sentence.

Representation:

Counsel:

Appellant : Mr R E Cock QC & Ms T R Watt

Respondent : Mr R A Mazza

Solicitors:

Appellant : Acting State Director of Public Prosecutions

Respondent : Mazza & Mazza

Case(s) referred to in judgment(s):
R v Follows [1997] 2 All ER 548
R v Grein [1989] WAR 178
R v Liddington (1977) 18 WAR 394
R v Rudd, unreported; CCA SCt of WA; Library No 940630; 10 November…

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 [1999] WASCA 24
Case: [1999] WASCA 24
Decision Date: 24 MAY 1999

CaseChat Overview and Summary

The case of R v Jones involved an appeal against the sentencing of the defendant, who had been convicted for possession of a substantial quantity of child pornography. The defendant was found to have over 162,000 images on CD Roms and hard drives of a computer, with more than 80,600 different images. The trial judge had imposed a sentence of two years' imprisonment, suspended for three years. The issue before the court was whether this sentence was appropriate in the circumstances of the case, and whether the sentence should be altered.

The court considered various factors in determining the appropriate sentence, including the severity of the offence, the defendant's criminal history, and the need for deterrence and rehabilitation. The court noted that possession of child pornography was a serious offence with significant social consequences, and that the large quantity of material in this case indicated a high level of culpability. The court also noted that the defendant had no prior criminal history and had shown remorse for his actions. However, the court ultimately determined that a suspended sentence was not appropriate in this case, given the seriousness of the offence and the need to deter others from engaging in similar conduct.

The court substituted a sentence of 18 months immediate imprisonment for the original suspended sentence, finding that this was a more appropriate punishment in the circumstances. The court emphasised the importance of sending a strong message that possession of child pornography would not be tolerated, and that those who engage in such conduct will be punished. The court also noted that the defendant's lack of criminal history and expression of remorse were mitigating factors that could be taken into account in determining the appropriate sentence.

The final orders of the court were that the appeal be allowed, and that the sentence of 18 months immediate imprisonment be substituted for the original sentence of two years' imprisonment, suspended for three years. The court emphasised the need for appropriate sentencing in cases of possession of child pornography, and the importance of balancing the need for deterrence and punishment with the need for rehabilitation and consideration of mitigating factors.

Orders

Orders of the court

Appeal allowed. Sentence of 18 months immediate imprisonment substituted for 2 year suspended sentence.

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

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Citations

AGLC Citation

R v Jones [1999] WASCA 24

Most Recent Citation

R v Jongsma [2004] VSCA 218

Cases citing this decision · 35 of 35 shown

Attorney General of New South Wales v Cooper (by his tutor Stephen Stuart) (Final)
[2024] NSWSC 1545

…395 [14]; Heathcote (A Pseudonym) v R at [40]. The courts have stressed that possession of child pornography is not a victimless crime: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 52 [9]; R v Gent at 38 [33]; D’Alessandro at 484 [23]; R v Martin at [43]. An additional feature of harm done to victims of child por…
Lazarus v The King
[2023] NSWCCA 214

…NSWCCA 89 R v Engert (1995) 84 A Crim R 67 R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370 R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24 R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174 Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 Turnbull v R [2019] NSWCCA 97 Wong v The Queen (2001) 207 CLR 584; [2…
TM v Commissioner of NSW Police
[2022] NSWSC 337 Para 58

…is not a victimless crime such as, R v Porte [2015] NSWCCA 174; 252 A Crim R 294 at 309; R v De Leeuw [2015] NSWCCA 183 at [72], [145]; and R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50 at 52.…
Allison (a pseudonym) v The Queen
[2021] VSCA 308

…017] VSCA 251; R v De Leeuw [2015] NSWCCA 183; James v The Queen [2009] NSWCCA 62; R v Mara [2009] QCA 208, [17]–[21] (‘ Mara ’); R v Jones [1999] WASCA 24, [9].…
R v Houweling
[2021] NSWDC 293 Para 3

…of children as the possession of child pornography is not a victimless crime - children are sexually abused in order to supply the market: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 52 [9]; DPP v D’Alessandro (2010) 26 VR 477 at 484 [23]…
Commonwealth Director of Public Prosecutions v CCQ
[2021] QCA 4 Para 8

…004] QCA 469 at [21]; R v Jongsma at [14]; Heathcote (a pseudonym) v R [2014] VSCA 37 at [40]; and R v Jones (1999) 108 A Crim R 50 at [9]; [1999] WASCA 24; R v Gent at [29] and [43]; Commonwealth Director of Public Prosecutions v D’Alessandro at [23]. [10] Mouscas v R [2008] NSWCCA 181 at [37]; Commonwealth Direc…
CR v R
[2020] NSWCCA 289

…(2005) 162 A Crim R 29; [2005] NSWCCA 370 R v Hutchinson [2018] NSWCCA 152 R v Jones (1990) 108 A Crim R 50; [1999] WASCA 24 R v Jongsma (2004) 150 A Crim R 386; [2004] VSCA 218 R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174 R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 Weber v R [2020] NSWCCA 103 Y…
R v Armstrong
[2020] ACTSC 298

…becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 51 [2]; Assheton v R at 246-247 [35]-[36]. (f) Offending involving child pornography is difficult to detect given the anonymity provide…
R v Degioannis
[2019] ACTSC 47

…ming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 51 [2] ; Assheton v R at 246-247 [35]-[36] . 6. Offending involving child pornography is difficult to detect given the anonymity provided b…
R v Edwards
[2019] QCA 15 Para 2

…The courts have long accepted and stressed that possession of child pornography is not a victimless crime.[48] [48] R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24 at 52 [9]; R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370 at 38 [33]; Director of Public Proseuctions (Cth) v D’Alessandro (2010) 26 VR 477; [201…
R v Kat
[2018] QCA 306 Para 16

…ions (Cth) [2004] QCA 469 at [21]; R v Jongsma (2004) 150 A Crim R 386 at [14] and Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]. [41] R v Jones [1999] WASCA 24 at [9]; DPP (Cth) v D’Alessandro (2010) 26 VR 477 at [23]. [42] R v Porte at [128]. [43] R v Minehan at [92], discussing R v Mara [2009] QCA 208. [44…
Lyons v R
[2017] NSWCCA 204

…becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 51 [2]; Assheton v R at 246-247 [35]-[36]. (f) Offending involving child pornography is difficult to detect given the anonymity provide…
R v Turvey
[2017] SASCFC 28 Para 10

…ming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 51 [2]; Asheton v R at 246-247 [35]-[36]. (f) Offending involving child pornography is difficult to detect given the anonymity provided by…
R v Arthur
[2017] ACTSC 23

…becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 51 [2]; Asheton v R at 246-247 [35]-[36]. (f) Offending involving child pornography is difficult to detect given the anonymity provided…
Director of Public Prosecutions (Cth) v Watson
[2016] VSCA 73

…reasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 51 [2]; Assheton v R at 246–247 [35]–[36]. (f) Offending involving child pornography is difficult to detect given the anonymity provided by the Int…
DPP (Cth) v Garside
[2016] VSCA 74

…becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 51 [2]; Assheton v R at 246–247 [35]–[36]. (f) Offending involving child pornography is difficult to detect given the anonymity provide…
R v Wood
[2015] NSWCCA 231

…becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 51 [2]; Assheton v R at 246-247 [35]-[36]. (f) Offending involving child pornography is difficult to detect given the anonymity provide…
R v De Leeuw
[2015] NSWCCA 183 Para 5

…nd is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 51 [2]; Assheton v R at 246-247 [35]-[36].…
R v Porte
[2015] NSWCCA 174 Para 68

…The courts have stressed that possession of child pornography is not a victimless crime: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 52 [9]; R v Gent at 38 [33]; D’Alessandro at 484 [23]; R v Martin at [43].…
The State of Western Australia v McCarthy
[2014] WASCA 210 Para 7

…aused to these children is incalculable. In a very real sense, those who possess or distribute this material encourage further child abuse: R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50 [9]; R v Coultas [2002] WASCA 131; G v The State of Western Australia [2005] WASCA 150; Hill [28].…
Phinthong v The Queen
[2011] WASCA 192

…09] WASCA 4 Law v The State of Western Australia [2009] WASCA 193 Ponniah v The Queen [2011] WASCA 105 Power v The Queen (1974) 131 CLR 623 R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50 R v Liddington (1997) 18 WAR 394 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 Smit v The State of Western Australia [2011] W…
R v Jones
[2011] QCA 147

…cited R v Burdon; ex parte Attorney-General (Qld) (2005) 153 A Crim R 104; [2005] QCA 147, cited R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24, cited R v Liddle [2006] QCA 45, cited R v Mallon [1997] QCA 58, cited R v Smith [2010] QCA 220, cited R v Sykes [2009] QCA 267, cited COUNSEL: S L Kissick for the app…
Smit v The State of Western Australia
[2011] WASCA 124 Para 3

…isonment (16 months post-transitional) concurrent with 8 years' imprisonment for having a sexual relationship with the child in the images; R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50: one count, more than 80,600 images, 'appalling degradation', images alphabetically organised, 2-year suspended sentence incr…
Ponniah v The Queen
[2011] WASCA 105 Para 6

…It hardly needs to be said, having regard to authorities such as R v Liddington (1997) 18 WAR 394; R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50; Assheton v The Queen [2002] WASCA 209; (2002) 132 A Crim R 237; R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469; Holland v The Queen [2005] W…
R v Smith
[2010] QCA 220

…) R v Gordon; ex parte Cth DPP [2009] QCA 209, considered R v Grehan [2010] QCA 42, distinguished R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24, cited R v Neumann; ex parte A-G (Qld) [2007] 1 Qd R 53; [2005] QCA 362, cited R v Oliver [2003] 1 Cr App R 463; [2002] EWCA Crim 2766, cited R v Saint-Smith , unrepor…
R v Padberg
[2010] SASC 189 Para 18

…g term. The children depicted are the victims of serious offending, resulting in the production of the pornographic material: see Stephen Allan Jones [1999] WASCA 24; (1999) 108 A Crim R 50 at [9], Kennedy J.…
Attorney-General for the State of Queensland v SBD
[2010] QSC 104

…v Rockett (1990) 170 CLR 104; [1990] HCA 26, cited R v Finch ex-parte A-G (Qld) [2006] QCA 60, applied R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24, cited COUNSEL: M Maloney for the applicant S Ryan for the defendant SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the defendant…
R v Sykes
[2009] QCA 267

…SWCCA 370, considered R v Gordon; ex parte Cth DPP [2009] QCA 209, considered R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24, considered R v Oliver [2003] 1 Cr App R 28, considered R v Mara [2009] QCA 208, cited R v Richardson; ex parte A-G (Qld) (2007) 175 A Crim R 244; [2007] QCA 294, cited R v Salsone; ex pa…
R v Gordon; ex parte
[2009] QCA 209

…CA 469, cited R v Daw [2006] QCA 386, cited R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370, cited R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24, cited R v KU; Ex parte A-G (Qld) (2008) 181 A Crim R 58; [2008] QCA 20, cited R v Liang & Li (1995) 82 A Crim R 39, cited R v Melano; ex parte Attorney-General (Q…
R v Mara
[2009] QCA 208

…20; [2003] HCA 12, cited R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370, applied R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24, cited R v KU & Ors; ex parte A–G (Qld) [2008] QCA 154, cited R v MacNeil-Brown [2008] VSCA 190, cited R v Martinsen [2003] NSWCCA 144, cited R v Mokoena [2009] QCA 36, considered…
R v NK
[2008] QCA 403 Para 1

…v Wharley (2007) 175 A Crim R 253; [2007] QCA 295 at [17]; R v Carson [2008] QCA 268 at [32]. As was said in R v Jones (1999) 108 A Crim R 50 at 52; [1999] WASCA 24:…
The State of Western Australia v Cunningham
[2008] WASCA 240

…een [2000] WASCA 73 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Pendleton v The Queen [2002] WASCA 4 R v Coultas [2002] WASCA 131 R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50 R v Liddington [1997] 18 WAR 394 The State of Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310 The State…
R v. GAE; ex parte A-G (Qld)
[2008] QCA 128

…ered R v H; ex parte Attorney-General [1993] QCA 240; CA No 144 of 1993, 23 June 1993, considered R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24, considered R v Wharley [2007] QCA 295, considered COUNSEL: M J Copley for the appellant A P Gundelach for the respondent SOLICITORS: Director of Public Prosecutions (…
R v Jongsma
[2004] VSCA 218 Para 1

…rge, to which he pleaded guilty, was that he knowingly possessed child pornography. [24][2001] VSCA 156 at [15]-[16]. [25]Compare R. v. Jones [1999] WASCA 24 at [9] per Kennedy, J. [26]See R. v. Coffey at 552, discussed below.…
Lee v The Queen
[2000] WASCA 73 Para 9

…were committed in this State, and each involved a breach of the Censorship Act 1996 (WA) . The history of this legislation was discussed in R v Jones [1999] WASCA 24, in which the insidious impact of child pornography was emphasised. The production of child pornography frequently involves direct child abuse in one…

View all 35 citing cases →

Cases cited in this decision · 1 of 1 shown

Postiglione v the Queen
[1997] HCA 26

…ckson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999 R v Dinsdale, unreported; CCA SCt of WA; Library No 990021; 2 February 1999 R v GP (1997) 18 WAR 196 R v Osenkowski (1982) 13 SASR 212 R v Percy [1975] Tas SR 62 R v Raggett (1990) 50 A Crim R 41 R v Ritchie, unreported; Ontario Court of Justice (Pro…

Legislation cited in this decision · 2

Censorship Act 1996 (WA)
60(4) 2 mentions
Indecent Publications and Articles Act 1902 (WA)
1 mention