District Court New South Wales Medium Neutral Citation: R v Jones [2020] NSWDC 336 Hearing dates: 5 June 2020 Date of orders: 5 June 2020 Decision date: 05 June 2020 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Sentenced to imprisonment of one year three months. However, I order pursuant to s 20(1)(b) of the Crimes Act that the offender be released forthwith upon entering into a recognizance without security to be of good behaviour for a period of two years. Conditions: that he be subject to the supervision of a Probation officer and accept all reasonable directions of that officer during the period of that recognizance. That the offender is not to travel interstate or overseas without the written permission of a Probation officer. Catchwords: Crime – Sentence – Commonwealth offence – use carriage service to solicit child pornography Legislation Cited: Crimes Act 1914 Criminal Code Act 1995 Category: Sentence Parties: Commonwealth DPP – Crown Wade Lance Jones – Offender Representation: Ms E Hirst for Crown Mr Buxton for Offender File Number(s): 19/163142 Judgment 1. Mr Wade Jones is before the Court for sentence on the offence of using a carriage service to solicit child pornography. That is an offence under the Criminal Code Act 1995 (The Commonwealth Criminal Code) and carries a maximum penalty of 15 years imprisonment. 2. The offender pleaded guilty to the offence at the earliest opportunity and, although there is no standard discount to be applied on account of utilitarian value for that plea in a Commonwealth matter, I intend to apply a discount of 25%. 3. The agreed facts are in summary as follows. At the time of the offence, which was committed between 24 and 25 November 2018, the offender was a registered user of an instant messaging application called Kik. That application enabled him, as a user, to transmit and receive messages as well as photographs, videos and other content. Between 21 and 25 November 2018 the offender used a mobile phone to communicate over Kik with another user who was known by the identity "02cairnsangel". That person purported to be a teenage girl and apparently caused a profile picture to be displayed which depicted a young girl. In reality, however, Cairns Angel was actually a male aged about 31. The offender and that other male did not know each other but participated in a number of communications over Kik. 4. The first communication occurred on 21 November 2018 when the offender, using the identity "wade19842", contacted the purported girl with a comment, "Cute profile pic" and "How young are you, sweetie?", to which the reply given was, "Thirteen." The offender then, after telling her that she looked beautiful in her profile, asked that she send him a "pic", that is a picture. An image was then sent, resulting in the offender commenting, "Wow. You look so beautiful ... Are you sure you're not younger? ... It's okay if you are". The other user then asked, "How old are you?" The offender replied that he was 34, which indeed he was, and asked, "Is that okay?" and also asked, "How young are you really, sweetie?" The communication that day then apparently ended. 5. The next day Cairns Angel responded to the question about her age with the answer, "Thirteen." The offender replied, "That's wonderful," and, "Do you like other little girls too?" When Cairns Angel responded, "Yes," the offender replied, "How young do you like little girls?" and also said, "Yes, I love them ... Younger the better." He also asked, "Do you finger girls?" and then asked, "Can I see your body, if that's okay, or other little girls?" A further communication took place the next day, 23 November 2018, when the offender attempted to make contact again by posting an emoji and asking, "Hi. What are you doing?" 6. On 24 November 2018 the offender received a photo via Kik from Cairns Angel. That photograph depicted a prepubescent child approximately under the age of 13 and was focused on the child's naked genital region. The image has been classified as IBS category 1, that is, Interpol Baseline Categorisation System, being child abuse material. I note that category 1 of the Interpol Baseline Categorisation involves an image depicting a real prepubescent child and the child is involved in a sex act, witnessing a sex act or the material is focused or concentrated on the anal or genital region of the child. After receiving the image, the offender responded, "Mm. So beautiful ... Who is she?" and then requested more pictures by stating, "Can I see more plz?" The offender did not receive a reply at that time. 7. The next day, 25 November 2018, the offender made a further request to the person Cairns Angel for child pornography material, stating, "I'd love to see your little pussy open and your ass." 8. On 24 May 2019, which is about six months later, the offender was interviewed by New South Wales Police who evidently had received some information relating to the above communications. On that occasion, he told the police that he communicated with random people on Kik for the purpose of engaging in "fantasy chat". He said he would do this when he was feeling depressed. He told police that he could not recall communicating with the person Cairns Angel. The offender further told police that while on his way to the police station he turned off his mobile phone and threw it out of the car window. Police asked him whether he had done this because he did not want police to see the content of the messages because he considered it not to be moral, to which the offender answered, "Yeah, it's not moral." 9. In sentencing for child pornography related offences, a sentence of immediate imprisonment is ordinarily called for. General deterrence is a very important sentencing consideration because of the need to deter not only the individual offender but others. The importance of deterrence has been emphasised as arising from a number of factors, including the increasing prevalence of these types of offences, the ease with which they can be committed given the relative anonymity of the Internet, and the fact that offences are often difficult to detect. 10. As the courts have said many times, offences involving the possession, solicitation and transmission of child pornography are not victimless. Soliciting, transmitting and possessing such material creates and feeds a market for the continued corruption and exploitation of children. It has been said that the possession of child pornography is a callous and predatory crime because it exploits and abuses children. Soliciting such material involves the same exploitation and abuse and feeds the same market. This material cannot come into existence without the exploitation and abuse of children somewhere in the world, often in underdeveloped or disadvantaged countries, although I accept that in this case there does not seem to be evidence necessarily that the material came from that particular source. Nonetheless, the general principle applies. Those who make use of the product feed on that exploitation and abuse and often the poverty of the children involved. It is for these reasons that general deterrence is of particular significance. 11. The harm involved in these types of offences is increased by reason of the fact that in many cases the images will or may remain on the Internet, able to be viewed by others for an indeterminate period of time, with the potential to further degrade and cause psychological harm to victims. Given these factors and the importance of deterrence, personal matters in mitigation such as prior good character are given less weight. 12. In assessing the objective seriousness of this particular offence, it is necessary for me to have regard to its particular facts. I note that the offending occurred over a relatively short period of time of only a few days and was in the form of a relatively small number of electronic communications. There was no sophistication about the offending or any deception involved. While the material that was solicited was reprehensible, given the purported age of the child, it did not involve obvious cruelty, penetrative activity or other aggravating features such as those seen in many of these types of cases. I assess the objective seriousness as towards the lower range. 13. The offender's subjective case has been placed before the Court through a volume of material, the most relevant of which are the reports by psychologists and psychiatrists. The offender is currently aged 36. He is employed as a part-time paint blaster and it is apparent, according to his evidence, that his employer values him because the employer seeks that he become a fulltime employee. 14. A most significant matter in this case is the offender's previous employment history with the Australian military. In that regard, he was previously engaged in the role of being a forward observer with the Royal Australian Artillery. In 2010 he underwent a six month tour of duty in Afghanistan and he was sent to Afghanistan on a second occasion in 2012 to 2013 for a period of about nine months. It is apparent from the psychiatric material placed before the Court that during these wartime experiences the offender observed and experienced extremely stressful and traumatic events. These included witnessing a close acquaintance, who later became the best man at the offender's wedding, losing a leg and suffering severe injuries as a result of an explosion. It also included being shot at and seeing others shot, being exposed to explosions and observing death and severe injuries including to young children. 15. Not surprisingly, these traumatic events took a significant toll on the offender's mental wellbeing and he began to self-medicate via drugs and alcohol. In about July 2014 he was medically discharged from the Army and has been diagnosed with a number of conditions including Post-Traumatic Stress Disorder, major depressive disorder and substance abuse disorder. In 2015 he apparently had a number of admissions to psychiatric units and has a history of suicidal thoughts and apparently at least one attempt. Although he has previously been married, that marriage broke up some years ago in part, no doubt, due to the offender's abuse of alcohol and drugs and the problems associated with his psychological conditions. It is clear that he remains very distressed about his current inability to have contact with his nine year old son Patrick. 16. A Sentencing Assessment Report has been placed before the Court which accepts the diagnosis of Post-Traumatic Stress Disorder due to military service and notes that the offender indicated he was currently engaged in sex offender treatment and had come to realise that his actions were disgusting and he hates what he did. The report notes that, according to the offender, at the time of the offence he was misusing alcohol and also trying to cope with stress arising from the miscarriage of a child with his then partner and his inability to obtain contact with his son. The offender has been receiving treatment by a psychologist Mr Molloy since 2016 and he is still receiving counselling from that psychologist. In addition, he gave evidence that he is seeing a clinical nurse who specialises in sexual offending. 17. The offender gave evidence in this Court and it is clear that he feels devastated by his offending. He said that he committed the offending behaviour whilst significantly affected by alcohol, and I accept that this is probably the case, although not an excuse. He said he accepts that his actions were disgusting and not acceptable, and that he has since reflected on how he would feel if his own child was the subject of a similar offence. He said that although he had been in a relationship, that relationship has now ended and the offender now lives, as noted in the Sentencing Assessment Report, with his father in stable accommodation. 18. The offender has a limited criminal history, all of it occurring in 2016, which apparently occurred in the aftermath of the break-up with his former wife. He has no prior history involving sexual offences, including sexual offences involving children. 19. The offender was asked in cross-examination whether he accepts, given the nature of his offence, that he may have some attraction of a sexual nature to female children. He did not accept this, stating that he was not in a proper state of mind at the time of the offending. I am not satisfied beyond reasonable doubt that the offender does have an ongoing sexual attraction to female children. However, it seems to me that when affected by a substance such as alcohol, he is a person who may be tempted to engage in inappropriate sexual conduct of that nature, a matter which, in my view, the offender might appropriately address in the context of his current treatment. As I say, however, I am not satisfied beyond reasonable doubt that he has any paedophilic disorder and I do not treat this as an aggravating feature. 20. I am satisfied that the offender has expressed genuine remorse and contrition for his offence. I am satisfied that he is genuinely horrified with his conduct and feels that it does not match the normal high standards that he appears to set for himself. As the Crown accepted, the offender has a compelling subjective case, especially given his psychological history. 21. As to his future prospects and risk of re-offending, there does remain some concern, given the history of psychological difficulties with which he still struggles. Given these problems and his history of substance abuse, there does remain some concern that he may re-offend in the future, although I doubt that any such offending is likely to include matters such as that before the Court today. In my view, his prospects of rehabilitation will depend heavily upon his determination to continue with his treatment, to avoid abusing alcohol and other drugs and to remain in regular employment. It is very positive that the offender is currently engaged in ongoing treatment and has regular employment. Overall, I consider his prospects of rehabilitation to be reasonable. 22. I have had regard to Part 1B of the Crimes Act 1914 and in particular the various matters set out in s 16A and, without listing those matters, I have taken them into account in so far as they are relevant as noted in these reasons for sentence. Fundamental amongst those, of course, is the need to ensure that the offender is adequately punished and the need for deterrence, both personal and general. In my view, however, the need for deterrence, both personal and general, is reduced in this case by reason of the serious nature of the offender's mental condition at the time. 23. As I observed earlier, it is well accepted that offending involving the solicitation of child pornography material ordinarily must be met with serious punishment and, in most cases, fulltime imprisonment. Counsel for the offender conceded that in this case no sentence other than a sentence of imprisonment is appropriate. The Crown submitted, somewhat similarly, that a term of imprisonment is appropriate, although not necessarily one with a period to serve in fulltime custody. I have taken those submissions into account and I deal with the matter in this way. 24. I impose a sentence of imprisonment of one year three months. However, I order pursuant to s 20(1)(b) of the Crimes Act 1914 that the offender be released forthwith upon entering into a recognizance without security to be of good behaviour for a period of two years. I also order that he be subject to the supervision of a Probation officer and accept all reasonable directions of that officer during the period of that recognizance. I also order that the offender is not to travel interstate or overseas without the written permission of a Probation officer. That good behaviour bond, which can be entered into today, will expire on 4 June 2022. I order that the offender report to the Newcastle office of the Community Corrections within seven days, that first report to be by telephone within three days from today. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2020