R v Kelly

[2014] ACTSC 117

ACT SUPREME COURT

Case Title:

R v KELLY

Medium Neutral Citation:

[2014] ACTSC 117

Hearing Date:

2 May 2014

DecisionDate:

2 May 2014

Before:

Burns J

Decision:

See [11]–[12]

Catchwords:

CRIMINAL – SENTENCE – possess child pornography – small number of images in context of large amount of adult pornography – inadvertently obtained but resolved to keep

Legislation Cited:

Crimes Act 1900 (ACT), s 65

Parties:

The Queen

James Stanley Kelly

Representation:

-     Counsel

Mr D Sahu-Khan (Crown)

Mr M Hassall (Defence)

-     Solicitors

ACT Director of Public Prosecutions (Crown)

Pappas, j. Attorneys (Defence)

File Number: 

SCC 64B of 2012

R v James Stanley KELLY
SENTENCE

1. James Stanley Kelly, you appear before me today for sentence with respect to three counts of possession of child pornography (s 65 Crimes Act 1900 (ACT)). You were convicted by a jury after trial of those three counts on 5 February this year.

2. I note that the first count relates to a number of images that were located on a DVD and, in fact, the images that were located on the DVD make up the bulk of the 28 images that were found by police.  Count 2 relates to two files that were found on a Seagate hard drive and Count 3 relates to one file which was found on a different Seagate hard drive.  All of these items were found during a search of your premises. 

3. A considerable amount of adult pornography was also found such that I am prepared to accept the submission that I should proceed on the basis that those images which form the basis of these charges were inadvertently downloaded by you.  However, the jury’s verdicts clearly indicate that they were satisfied beyond a reasonable doubt that you were aware that those images were in your possession at the time of the commission of these offences.  So whilst I accept for the purposes of sentencing you that you did not deliberately seek out child pornography images, I must sentence you on the basis that, having inadvertently obtained those images, you determined to retain them.

4. I accept the proposition which has been put forward by your counsel that these offences are towards the bottom of the range of offences of this nature.  I note that these offences each carry a maximum penalty of seven years’ imprisonment.

5. I take into account the contents of the Pre-Sentence Report.  I note that you are currently 51 years of age.  I take into account those matters that are set out in the Pre-Sentence Report in relation to your history and the other matters that are referred to in the report.

6. I note that it is now put to me by your counsel that subsequent to having been granted bail with respect to the charges that were dealt with in February this year before myself and also before the Chief Justice at a later time, you had reconciled with your estranged wife and that your family situation had much improved.

7. I also take into account the testimonials that have been put before me and I note in particular the reference to the illness which afflicts your daughter.

8. You have a previous criminal history which is quite extensive.  The most significant matter on that history for sentencing purposes today is an entry on 16 July 2004 in the Magistrates Court in this Territory where you were convicted of a charge of possession of child pornography.  With respect to that matter, you were convicted and released on a Good Behaviour Order for a period of three years.  I do not know the facts behind that particular offence but in the light of the sentence which was imposed, I can infer that it also was towards the bottom end of the range of offences of that nature.

9. It is conceded, and I think properly conceded by your counsel, that a term of imprisonment is an appropriate outcome with respect to the charges before this court.

10. I will impose relatively short periods of imprisonment which will be served concurrently with each other, but will be slightly cumulative upon the sentences imposed by the Chief Justice; and I will amend slightly the non-parole period that was imposed by the Chief Justice. 

11. Would you stand, please?

    ·On Count 1, I will record a conviction and you will be sentenced to nine months’ imprisonment commencing on 10 April 2015 and expiring on 9 January 2016.

    ·On Count 2, you will be convicted and sentenced to two months’ imprisonment commencing on 10 April 2015 and expiring on 9 June 2015.

    ·On Count 3, you will also be convicted and sentenced to two months’ imprisonment commencing on 10 April 2015 and expiring on 9 June 2015.

12. I will reset the non-parole period which was imposed by the Chief Justice such that it now expires on 9 May 2015.  The current non-parole period expires on 9 February 2015 so I have effectively extended it by three months.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Sentence herein of his Honour Justice Burns.

Associate:

Date:     4 June 2014