District Court New South Wales

• Medium Neutral Citation: R v Jack [2013] NSWDC 171
• Hearing dates: 26 July 2013
• Decision date: 26 July 2013
• Before: Murrell SC DCJ

Decision

See para [22] - [26]

• Catchwords: CRIMINAL - Sentence - after trial - use carriage service to access child pornography - use carriage service to make available child pornography material - possess child abuse material - discount for admitting element of offences - no remorse
• Legislation Cited: Criminal Code 1995 (Commonwealth); Crimes Act 1900 (NSW); Crimes Act 1914 (NSW); Crimes (Sentencing Procedure) Act 1999 (NSW)
• Cases Cited: Hili v R [2010] HCA 4; Oliver & Ors [2002] EWCA Crim 2766; R v Gent [2005] NSWCCA 370
• Category: Sentence
• Parties: The Crown; James Lewis Jack
• Representation: Mr P Kerr (Crown); Mr G Heathcote (Defence); Office of the Director of Public Prosecutions (Crown); Proctor & Associates (Defence)
• File Number(s): 2011/30051; 2011/85638; 2011/185644

Judgment

1 On 2 May 2013 a jury returned a verdict of guilty on the following five charges:

(1) Between about 1 July 2009 and 14 April 2010 at Peakhurst, the offender used a carriage service to access child pornography material (s 474.19(1)(a)(i) of the Criminal Code (Commonwealth)).

(2) Between 15 April 2010 and about 26 January 2011 at Peakhurst, the offender used a carriage service to access child pornography material (s 474.19(1)(a)(i) of the Criminal Code (Commonwealth)).

(3) Between about 18 January 2010 and 14 April 2010 at Peakhurst, the offender used a carriage service to make available child pornography material (s 474.19(1)(a)(iii) of the Criminal Code (Commonwealth)).

(4) Between 15 April 2010 and about 26 January 2011 at Peakhurst, the offender used a carriage service to make available child pornography material (s 474.19(1)(a)(iii) of the Criminal Code (Commonwealth)).

(5) On or about 25 January 2011 at Peakhurst, the accused possessed child abuse material (s 91H(2) of the Crimes Act 1900 (NSW)).

2 The maximum available penalty in relation to each of the offences against s 474.19(1) of the Criminal Code is fifteen years' imprisonment. The maximum available penalty for the offence against s 91H(2) of the Crimes Act 1900 is ten years' imprisonment.

3 The offender has been in custody since the findings of guilt on 2 May 2013. Although the offender continues to maintain that he is not guilty of any offence, he admitted from the outset that the subject matter of the proceedings was child pornography or child abuse material within the meaning of the relevant legislation. The trial was benefited in a utilitarian sense as it spared the Court the unpleasant task of examining the material to determine whether it was satisfied that the material fell within the relevant definitions. I accept the submission that the offender is entitled to a small discount for the concessions.

4 The facts are that, between mid 2009 and January 2011, the offender used his computer to possess and access child pornography and child abuse material obtained over the internet. Between January 2010 and January 2011 a number of his files were made available to others. When arrested in January 2011 he was found to be in possession of more than 23,000 files containing child abuse material. There were approximately 22,000 images and approximately 1,300 multimedia files. On 2 July 2009 the offender had downloaded from the internet the free version of a commercially available file-sharing program known as GigaTribe. This free program had limited features. Shortly after downloading the free program, the offender commenced paying a monthly subscription for a program which had a larger number of features. He paid a monthly subscription until the middle of 2010. At that stage, he paid an annual subscription for the more sophisticated version of GigaTribe. He used GigaTribe to make child pornography material available to others. At the date of his arrest, 591 of the 23,000-odd child pornography files in his possession had been made accessible to other users of Gigatribe. In September 2009 the offender purchased a software program called Folder Lock, which he used to encrypt and conceal folders on his computer hard drives. These folders contained child pornography material. That meant that other users of his computer would not see the material.

5 The material in question has been analysed and classified into six categories. The first five categories follow those developed in the UK guideline judgment of Oliver & Ors [2002] EWCA Crim 2766. The sixth category is a category utilised in the child exploitation tracking system. Category 1 is images depicting erotic posing with no sexual activity. The offender was in possession of 18,520 Category 1 images and 332 Category 1 videos of children. The images focussed on genitalia and children dancing and undressing. The offender was in possession of 2,087 images and 696 videos of children performing sexual acts on themselves and each other, which fell into Category 2, being sexual activity between children or solo masturbation by a child. In relation to Category 3, nonpenetrative sexual activity between adults and children, the offender was in possession of 712 images and sixtyone videos that fell into this category. In relation to Category 4, penetrative sexual activity between adults and children, the offender was in possession of 559 images and 188 videos of children engaged in penetrative sexual intercourse or sexual activities with adults. In relation to Category 5, sadism or bestiality, the offender was in possession of thirtyseven images and thirty videos of children engaged in sadistic acts or bestiality. In relation to Category 6, animated or virtual images on videos, the offender was in possession of twelve images.

6 In respect of the Commonwealth matters, the offences deal with child victims who are persons up to the age of eighteen years. The New South Wales offence deals with child victims up to the age of sixteen years. The ages of the children depicted in the material are from prepubescent up to approximately fourteen years of age.

7 As to the objective seriousness of the offences, the proper approach was discussed in the case of R v Gent [2005] NSWCCA 370. Among other things, it is relevant to have regard to the nature and content of the pornographic material (including the ages of the children depicted), the gravity of the sexual activity portrayed, the number of images possessed by the offender (focusing on the number of different children who were depicted and thereby victimised), the purpose for which the material was possessed and whether the offender did profit or intended to profit from the images. That is not a comprehensive statement of all matters relevant to objective seriousness, but it provides a useful guideline for the Court's consideration. In this case, the number of images and other items totalled about 23,000. There is no evidence as to the number of different children who were depicted and thereby victimised. Among the 23,000 items, there must have been very many children who were depicted and thereby victimised. There is no suggestion that the offender was to profit from the offences in a financial sense. However, in relation to the charges of making the material available, the profit was to participate in sharing arrangements with other likeminded people. Many offences involving the making available of material are characterised by such a motive. There was some evidence of the ages of the children depicted. I infer that the ages ranged from children who were prepubescent (although not infants) through to children of approximately fourteen years of age. In relation to the ages of the victims, this is not a borderline case, for example, involving children aged fifteen, sixteen or seventeen years. The children in question were almost exclusively male. The material had a firmly homosexual orientation. The possession of the material continued over a period of eighteen or nineteen months, from the middle of 2009 to early 2011. The offender was continuing to download images up to the time of his arrest in January 2011. Objectively, the offences were of substantial seriousness. However, I regret to say that they do not fall anywhere to being in the most serious category.

8 The Crown referred to the fact that the offender made up a false story that an acquaintance of his, Mr H, was responsible for the downloading of the images and that Mr H had made a genuine confession to the offender (which the offender had recorded on his mobile telephone). That material was inherently questionable. Mr H was called to give evidence and he gave very convincing evidence. The jury entirely rejected the suggestion that Mr H was responsible, a view with which I wholeheartedly agree. Although the Crown drew my attention to this aspect of the trial, the Crown did not contend that this conduct by the offender aggravates the seriousness of the offending conduct. I agree. I am not here to sentence the offender for perjury.

9 The offender is thirtytwo years of age. He was about thirty years of age at the time of the offences. He had a very good upbringing. His parents provided him with strong support, and they continue to do so. He has a close relationship with his sister, who also continues to support him. He is an intelligent person. Mr Probets, a psychologist who provided a report on behalf of the offender, described the offender as "a highly rational thinker". He attained a high level of education. He holds the degrees of Bachelor of Arts and Bachelor of Education. He obtained a postgraduate diploma in theology. As well as studying theology at university, he studied English and History, and for some years was employed teaching Christian Studies and History. He had an excellent work history up to the time of his apprehension. He also had a long and strong involvement with the Anglican Church in capacities such as church warden and leader of youth groups. He was involved with youth groups from fifteen years of age. He taught Bible Studies, and he counselled children and other members of the congregation. Some members of the congregation, including younger adults who knew the offender when they were children, gave character evidence in the course of the trial. They said that the offender was a loving and caring person who had been very supportive and who displayed honesty and integrity in their dealings with him. There was no suggestion that the offender had attempted to behave inappropriately towards young people in the Church or other young people.

10 Mr Heathcote correctly pointed out that, in relation to child pornography matters, it is not infrequently the case that offenders have not only accessed child pornography, but also, to some extent, acted out their inclinations by engaging in indecent behaviour towards young people. That is not the case for the offender.

11 By virtue of these convictions, the offender has lost his career as a teacher, and presumably he has lost his standing within the Church. He is considering reeducation in the areas of business and accounting, which seems to be a very sensible path to pursue, as it is unlikely to involve contact with young people, and it will engage the offender intellectually.

12 The offender has tendered material in relation to medical problems from which he suffers. There was evidence from a treating endocrinologist and the offender. Since 1994, the offender has been treated as a diabetic. He has ongoing problems in relation to getting the correct balance of treatment and he has developed insulin resistance. In custody, the difficulties have been considerable. He has been held at the MRRC at Silverwater. There have been a number of difficulties. The first difficulty relates to the importance of receiving insulin prior to or at about the same time as meals, particularly in relation to the afternoon/evening meal. There has been little correlation between mealtime and insulin receipt. This problem has been exacerbated by lockdowns at the prison. At times, doses have been missed. They have often been late. The second difficulty relates to injections. The offender must attend the clinic for injections. There are problems in coordinating the injections and the meals since he has to be transported to and from the clinic. He would like to have needles available in his cell to treat himself as required. This is not permitted. Prisons simply cannot allow prisoners to have needles in their cells. It is most unlikely that the offender will be permitted to have ready access needles for personal injection of insulin wherever he is housed in the New South Wales corrective system. However, it may be likely that the other difficulties that he is experiencing will improve. For example, the problem of constant lockdowns at the MRRC is unlikely to occur once he is classified to a suitable alternative prison. He is very likely to have more ready access to a clinic. However, I accept that there will be a substantial impact on the offender in the sense that his diabetes treatment will not be optimal.

13 The Court received evidence that there are serious risks associated with the treatment of diabetics that is less than optimal. While the offender is in custody, there will be ongoing problems in relation to treatment for diabetes which may manifest themselves to a greater or lesser degree. Unfortunately, any prisoner who suffers from any physical or mental disability will almost inevitably have less access to medical treatment than a person who is in the community and who has the wherewithal to seek out their own treatment. These considerations are relevant to a determination of appropriate sentence.

14 The role of the Court is to impose sentences of a severity appropriate in all the circumstances. In relation to the State offence, the Court may only impose a sentence of full-time imprisonment if that is the only appropriate sentence. Although those words are not used in the Commonwealth legislation, impliedly that is also the case in respect of Commonwealth matters. Under the Commonwealth legislation, the Court is required to take into account, among other relevant factors, the factors set out in s 16A(2) of the Crimes Act 1914 in so far as they are relevant. In respect of the State offence, the Court is required to take into account the aggravating and mitigating factors that are set out in s 21A of the Crimes (Sentencing Procedure) Act 1999, in so far as relevant.

15 In relation to both State and Commonwealth matters, important sentencing objectives are general deterrence, punishment, denunciation, specific deterrence and rehabilitation. In relation to offences of this type, general deterrence is a very important consideration. Such offences are prevalent. They are committed relatively anonymously. Most people have ready access to the internet and can access it in the privacy of their own homes. Commission of offences such as these is relatively difficult to detect. Indeed, vast State and Commonwealth resources are devoted to the detection of such offences.

16 Offences of this type are not victimless crimes. Offenders often talk themselves into thinking that their crimes are victimless but that is very far from the truth. The children whose images are depicted are powerless young people who are forced into sexualised behaviour because they are impoverished or under the control of exploitative adults. Offenders who engage in this sort of activity are victimising many powerless children. The children are compromised and corrupted. They have to live with the fact that their images may be available to strangers for decades and that they will never be able to control the dissemination of the objectionable images. One cannot know the personal circumstances of the victims, but one can infer that they must be desperate.

17 Under s 16A(2)(f) of the Crimes Act, the Court is to consider, where relevant, the degree of the offender's contrition. In this case, there is no contrition. The offender continues to maintain his innocence. He has demonstrated no remorse.

18 Section 16A(2)(m) refers to the need for the Court to consider the character, antecedents, age and physical and mental condition of the offender. As far as his character is concerned, the offender has no prior convictions. There is abundant evidence that the offender appears to be a person of excellent character. As far as his friends, acquaintances and family are concerned, he is a person of impeccable character. Unfortunately, as is the case with many offenders who commit offences of this type, the offender has a secret character, which was not and still is not apparent to his friends, acquaintances and family. Because "anonymous" offences of this type are not infrequently committed by persons of otherwise apparent good character, the Court may attach lesser weight to good character.

19 A very important factor is the prospects of rehabilitation, or the prospects of reoffending. In his report, Mr Probets makes a number of statements, which I have some difficulty in reconciling. On page seven, he states that the offender:

"Is highly unlikely to re-offend due to both his character and the impact of the serious situation that he is now in. Also there was no indication in the interview assessment or psychometric assessments of any psychological or psychiatric disorder that is likely to result in future offending."

The author goes on the state on page eight that:

"It would be very useful for James Jack to undertake a treatment program for sexual offenders within the prison system."

Mr Probets opines that the offender is likely to be very co-operative if he undertakes such a program. My difficulty is that the offender has been convicted by the jury on the basis of compelling evidence of engaging in child pornography offences over a period of approximately eighteen months. The reasons for his engagement in those offences are unknown. However, Mr Probets asserts that he is highly unlikely to re-offend. I would have thought that if the reasons for offending cannot be ascertained, then they cannot be addressed and the risk of reoffending remains very open. Further, I question why Mr Probets asserts that a treatment program would be "very useful" in connection with someone whom he simultaneously asserts is highly unlikely to re-offend. The bottom line may be that Mr Probets thinks that, as the offender is intelligent, he will realise that the commission of any further offences will result in imprisonment and that that will be a sufficient specific deterrent.

20 There is a high level of correlation between the matters to which the Court must have regard to under s 16A and those to which it must have regard under s 21A. It would be pedantic to go through s 21A chapter and verse. I have had regard to relevant s 21 matters and to the appropriate overall sentence having regard to the principle of totality.

21 In respect of offences one and two and offences three and four, those offences were prosecuted as pairs because in April 2010 there was a legislative change in respect of one element of the offences. In relation to this case, the change was not material. But for that legislative change, there would have been three offences before the Court, not five.

22 The offender is convicted of each matter. I impose the following sentences. In relation to count one in the indictment, I intend to impose a fixed term of imprisonment of twelve months from 2 May 2013 to 1 May 2014. For count two, I intend to impose a fixed term of imprisonment of eighteen months from 2 November 2013 to 1 May 2015. For count three, I intend to impose an eighteen-month sentence of imprisonment from 2 May 2014 to 1 November 2015. In relation to this and the subsequent sentences, I intend that the offender should be released after serving two years, on 1 May 2015. In relation to offence four, the last of the Commonwealth matters, I intend to impose a term of twenty-one months from 2 November 2014 to 1 August 2015. I intend that the offender be released on 1 May 2015. In respect of the State matter, I intend to impose a concurrent sentence of twenty-one months from 2 May 2014 to 1 August 2016, with a non-parole period expiring on 1 May 2015. The effective sentence will be a non-parole period of two years and a balance of term of one year and three months. The total sentence will be three years and three months.

23 I am aware that, in respect of Commonwealth matters, the usual although not fixed ratio between the head sentence and the nonparole period is about sixty to sixty-seven per cent. However, Hili v R [2010] HCA 4 says that that matter is in the judge's discretion. I am aware that under the State legislation, the non-parole period is prima facie seventy-five per cent of the total term. In respect of the State matter, I find special circumstances, being the offender's first time in prison and the totality of the sentences.

24 For offence three, the sentence is from 2 May 2014 to 1 November 2015. For offence four, the sentence is from 2 November 2014 to 1 August 2016. For matters three and four, I fix a non- parole period to expire on 1 May 2015.

25 For the State matter, the offender is sentenced to a non-parole period from 2 November 2014 to 1 May 2015 and a balance of term of one year and three months. The sentence will expire on 1 August 2016. He is eligible for release to parole on 1 May 2015.

26 The effective sentence is three years and three months, in effect. After the expiry of two years, on 1 May 2015, the offender is eligible for release to parole.

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Decision last updated: 10 September 2013