R v Jones[2011] QCA 147

SUPREME COURT OF QUEENSLAND

[1]  MUIR JA:  I agree with the reasons of Daubney J.

[2]  WHITE JA:  For the reasons given by Daubney J, I joined in the orders of the Court pronounced on 3 June 2011.

[3]  DAUBNEY J:  On 8 April 2011, the applicant was convicted on his own plea on one count of the Commonwealth offence of using a carriage service to access child pornography material and two counts of possessing child exploitation material.

[4] For the Commonwealth offence, he was sentenced to 15 months imprisonment, to be released after having served three months on a recognizance of $2,000.  On each of the State offences, he was sentenced to 12 months imprisonment, suspended after two months with a two year operational period.  These sentences were ordered to be served concurrently. 

[5] The applicant has now applied for leave to appeal against these sentences, arguing that the requirement that he serve actual time in custody was manifestly excessive.  It was further submitted that the sentencing judge did not mitigate the sentence to reflect the degree of public shaming which the applicant had experienced, and that the sentencing judge had effectively fettered his discretion on the question of whether actual imprisonment is required in sentencing offenders for this type of offence.

[6] A further ground of challenge emerged, namely that the sentencing judge had failed to have regard to and comply with s 13 of the Penalties and Sentences Act 1992 (Qld) (“PSA”).

[7] The background to the offences can be stated briefly.  On 8 July 2009, police executed a search warrant at the applicant’s home.  The police located, inter alia, a computer and some compact discs.  Child pornography in the form of movie files and still pictures were located on the computer and one of the compact discs.  All up there were 17 movie files (totalling about one hour 20 minutes of footage) and 44 pictures.  Analysis of the computer revealed that the movies had been downloaded over the internet using a peer-to-peer file sharing program.  This was the basis for the Commonwealth offence.  Possession of the material on the computer and compact disc was the basis of the State offences.  The movies and pictures depicted a range of activities, from less serious images and movies involving posing through to serious material showing children involved in penetrative acts. 

[8] The material before the sentencing judge disclosed that:

(a)the downloading of the offensive material occurred on one day only;

(b)at the time of the downloading, the applicant was in the midst of a marital breakdown, had separated from his wife, and was suffering depression which, according to a psychologist’s report which was tendered, was likely to have clouded his judgment;

(c)the psychologist’s opinion was that the applicant presented a very low risk of re-offence;

(d)the fact of the applicant having been charged with these offences attracted local media coverage;

(e)the commission of these offences had led to the applicant being removed from involvement in rugby league coaching – an activity in which he had achieved some prominence over many years;

(f)he held excellent and supportive references from a wide range of people, particularly his colleagues in the sporting field;

(g)the matter proceeded by way of a full hand up committal and an early indication of an intention to plead guilty;

(h)the sentence contended for by the prosecutor was 15 months imprisonment with immediate release on probation for two years;

(i)defence counsel submitted that the appropriate range was 9-15 months imprisonment, to be suspended immediately;

(j)neither counsel suggested that it was appropriate for the applicant to serve actual imprisonment in the first instance.

[9] The sentencing remarks were as follows:

“HIS HONOUR:  Would you stand, please, Mr Jones?  Ricky Carl Jones, you have pleaded guilty today and are to be sentenced to three very serious criminal offences:  using a carriage service to access child pornography material and two counts of possessing child exploitation material.

On July 8, 2009, police attended at your home with a search warrant and seized your computers and computer discs.  They contained a variety of child pornography, namely a total of 17 movie files which went for about an hour and 20 minutes, and 44 images in categories 1 through to 5.  They included images of children as young as 6 being subjected to penetrative sex.

Accessing child pornography and possessing it is not a victimless crime.  The victims are the young children who are subjected to the criminal activities involved in photographing and videoing them and then disseminating them.

In my opinion, courts should take a tough stand against those who commit these types of offences.

I’ve considered all of the submissions which were made, including the medical report which said that you were suffering depression at the time following a marital break-up.  Nevertheless, I’m of the firm opinion that a period of actual custody is required in cases of this nature.”

The sentencing judge then pronounced the sentences to which I have already referred.

Penalties and Sentences Act, s 13

[10]  Section 13 of the PSA provides:

“13Guilty plea to be taken into account

(1)In imposing a sentence on an offender who has pleaded guilty to an offence, a court –

(a)must take the guilty plea into account;  and

(b)may reduce the sentence that it would have imposed had the offender not pleaded guilty.

(2)A reduction under subsection (1)(b) may be made having regard to the time at which the offender –

(a)pleaded guilty;  or

(b)informed the relevant law enforcement agency of his or her intention to plead guilty.

(3)When imposing the sentence, the court must state in open court that it took account of the guilty plea in determining the sentence imposed.

(4)A court that does not, under subsection (2), reduce the sentence imposed on an offender who pleaded guilty must state in open court –

(a)that fact;  and

(b)its reasons for not reducing the sentence.

(5)A sentence is not invalid merely because of the failure of the court to make the statement mentioned in subsection (4), but its failure to do so may be considered by an appeal court if an appeal against sentence is made.”

[11]  Section 13 did not apply in respect of count one on the indictment, which was a Commonwealth offence, but did apply in respect of the applicant’s pleas of guilty to the State offences in counts two and three.  The fact of the applicant pleading guilty to the Commonwealth offence, however, was a matter which the Court was required to take into account when sentencing – Crimes Act 1914 (Cth), s 16A(2)(g). 

[12]  The policy underlying s 13 is clear and well known.  If an accused pleads guilty, and thereby obviates the need for a trial, significant time and cost benefits ensue for the benefit of the public and the administration of justice generally.  Sentence hearings can be listed and dealt with expeditiously.  Teams of prosecution and defence lawyers (the former always and the latter often paid out of the public purse) do not need to be engaged in the preparation and presentation of the trial.  Witnesses do not need to be brought to Court.  Members of the public are spared the burden (and personal cost) of jury service.  Judges, court staff, and court facilities are able to be diverted to other duties.  These practical factors combine to produce the proposition that by pleading guilty an accused assists in the administration of justice. 

[13]  That is why s 13 requires a sentencing judge to consider expressly the fact that an accused has pleaded guilty.  The sentencing judge is not bound to mitigate the sentence because of the plea of guilty, but if the judge determines not to mitigate the sentence then he or she is required to state that and give their reasons.  Clearly enough, the starting point under s 13 is that a plea of guilty will attract favourable consideration by the judge in the sentencing process.  If there is to be a departure from that, then the judge needs to give an explanation.

[14]  The failure by a sentencing judge to comply with the obligation in s 13(3) will cause the Court of Appeal to examine the sentence more closely since it will not clearly appear that the sentencing judge has in fact taken the plea into account.[1]  In the present case, the sentencing judge did not refer to s 13.  He did not even refer to the fact that the applicant had pleaded guilty.  There is no indication that the judge moderated the sentences to give credit for the pleas of guilty.  Nor is there any explanation for the judge’s decision (if, indeed, he turned his mind to it) not to mitigate the sentences on account of the pleas of guilty.

[15]  These considerations are so basic to the sentencing process as to warrant on their own a conclusion that the sentencing discretion in this matter miscarried.  On this basis alone, the applicant should have leave to appeal.

The sentence was manifestly excessive

[16]  The applicant sought to rely on a number of propositions:

(a)That the sentencing judge failed to accord any weight to the public shaming which the applicant underwent by reason of media coverage;

(b)That the sentencing judge approached the sentencing process with a preconception as to the necessity to have the applicant serve time in prison.

[17]  In respect of the first of these propositions, there is a difference of judicial opinion as to the weight, if any, to be accorded to “public shaming” or “public opprobrium” in the sentencing process.[2]  Whether a sentencing judge takes “public shaming” into account, and the weight to be applied to that factor in the sentencing process, will depend on the circumstances of the particular case, including by reference to:

(a)the identity and position of the accused;

(b)the nature and seriousness of the offences;

(c)the circumstances of the offending conduct (and the relevance of the identity and/or position of the accused in those circumstances);

(d)the nature, content, duration and extent of the public communication which induces the opprobrium, and

(e)the effect of the public shaming on the accused.

[18]  In Einfeld v R[3] the New South Wales Court of Criminal Appeal considered an appeal against sentence by a former judge who was convicted of offences of dishonesty.  In the course of considering the sentencing remarks, Basten JA, with whom Hulme and Latham JJ agreed, noted that there was no doubt that the sentencing judge had taken public humiliation and vilification into account.  His Honour[4] referred to the two factors in that case which affected the way in which public opprobrium could be taken into account:

(a)It was the appellant’s status and former office which, on the one hand, gave rise to the heightened seriousness of the offence and, on the other hand, gave rise to a greater level of public opprobrium than might otherwise have occurred, and

(b)The offence was one in the course of which the appellant appeared to use his former public office to further his unlawful purposes.

[19]  Importantly, and relevantly for present purposes, however, Basten JA also cited with apparent approval the following observations by Howie J in Kenny v R:[5]

“[49]... My initial reaction was that public humiliation that arises from the commission of the offence should not alone give rise to a mitigation of sentence without more. However … the issue appears to be unresolved in the High Court ... Clearly there may be an exceptional case where it reaches such proportion that it has had some physical or psychological effect on the person so that it could be taken into account as additional punishment.”

[20]  In the present case, the only evidence of “public humiliation” was a single issue of a local newspaper which carried a front page story about the applicant being charged under a banner headline “League coach facing child porn charge” and with a photo of the applicant.

[21]  Counsel for the applicant submitted that “the applicant’s exposure and shaming was significantly greater than usual”, but there was simply no evidence to support that submission.  The evidence was that the applicant was the subject of a front page article in the newspaper published in his local area.  One can readily infer that such a publication was seen by, and discussed amongst, people who knew, or knew of, the applicant in the local area.  It was not contended that this newspaper article was inaccurate, unfair or unduly inflammatory.  It seems to me that if an accused would seek to persuade a sentencing judge that “public shaming” is a relevant factor to be considered in a particular case, then something more is required than mere assertion that the level of exposure and shaming was “significantly greater than usual”. 

[22]  Accordingly, I do not consider that the sentencing judge erred by not placing any weight on this factor.

[23]  In terms of the sentencing judge’s approach, the applicant pointed to the following statements by the sentencing judge:

(a)“In my opinion, courts should take a tough stand against those who commit these types of offences;  and

(b)“Nevertheless, I’m of the firm opinion that a period of actual custody is required in cases of this nature”.

[24]  Counsel for the applicant sought to characterise these statements as representative of the judge imposing a fetter on his own discretion.  By that shorthand, the applicant argued that the sentencing judge failed to consider all of the matters relevant to the exercise of the sentencing discretion, including the matters referred to in s 16A of the Crimes Act 1914 (Cth) and s 9 of the PSA, and gave undue weight to his own opinion that “a period of actual custody is required in cases of this nature”.

[25]  Counsel for the respondent argued that by referring to “cases of this nature” the sentencing judge was referring to the circumstances of the particular case before him, rather than indicating a view that actual imprisonment for offences of this nature was required.  It was also argued that the use of the word “nevertheless” indicated that the sentencing judge was undertaking a balancing exercise.

[26]  I am not at all persuaded by these semantic arguments.  A fair reading of the sentencing remarks (which I have set out in full above) reveals that the sentencing judge’s opinion that “courts should take a tough stand against those who commit these types of offences” was manifested in an apparent requirement that periods of actual custody were required.  By proceeding on the basis of such a preconception, the sentencing judge abrogated the proper exercise of the sentencing discretion. 

[27]  It is clearly correct, as the prosecutor submitted, that general deterrence is an important factor to be considered in offences involving child pornography.  That factor alone, however, does not compel a rule of universal application that persons convicted of such an offence must invariably be sent to prison in the first instance.  Indeed, such an approach tends to undermine the significant value which resides in a judge’s broad sentencing discretion.  Community confidence in the sentencing process depends, in no small part, on a wide variety of judges imposing sentences which are consistent, and which are formulated by reference to relevant discretionary factors and by having regard to the relevant legislation, comparable sentences, and the guidance of appellate court decisions.  A sentencing judge’s idiosyncratic personal notions of justice ought not dominate in the sentencing process.  It seems to me that this is precisely what happened in this case, and the sentencing discretion thereby miscarried.

[28]  This ground also provides a basis for the grant of leave to appeal against sentence.

The sentence to be imposed

[29]  It therefore falls to this Court to undertake a fresh exercise of the sentencing discretion.  In that regard, a number of relevant factors need to be noted.

[30]  The offences in question were serious.  They involved, in total, 17 movie files (a total of about one hour 20 minutes footage) and some 44 images.  Twelve of the movies were category 4 on the Australian Child Exploitation Categorisation Scheme, and depicted children involved in penetrative activities.  One of the movies was category 5, depicting a child subjected to penetrative activity in a sadistic setting.  Most of the images were at category 1 (children engaged in sexualised posing) but there were a number of images ranging up to category 4.

[31]  The applicant had no criminal history.  He pleaded guilty to the offences and, as mentioned, indicated an early intention to plead guilty. 

[32]  On the hearing of this application, counsel for the respondent confirmed that the only case put to the Court, and which the prosecution could put to the Court, was that this downloading occurred on only one day.  That fact alone, in my view, makes this case quite distinguishable from the authorities on which the respondent placed particular reliance.  In R v Sykes,[6] the offender had downloaded what was described as a “modest number of images”[7] being a total of 120 images ranging from category 1 to category 4, but had downloaded these images on more than one occasion over a period of months from August 2007 to May 2008.  In R v Smith[8] the period of offending was between June 2007 and December 2008, during which time the offender downloaded more than 1,000 images of child pornography, most of which were in category 1 and some of which ranged across categories 2-5.  The period of offending in both of those cases was significantly more than the one day in this case. 

[33]  I have referred above in paragraph [6] to other mitigating factors in the applicant’s favour, including the report by the forensic psychologist, Dr Hazell. 

[34]  The applicant is a mature, 47 year old man with an otherwise unblemished personal and work history.  He made significant contribution to the community through his involvement in rugby league coaching over many years.  It is likely that this one occasion of offending has resulted in him suffering humiliation in the eyes of members of his local community.  Notwithstanding that, the references provided on his behalf indicate the high regard in which he is held. 

[35]  The seriousness of this type of offending calls for a sentence of general deterrence.  These are not “victimless crimes” – the children abused in the images and movies are the victims.[9]  Whilst there was only a relatively modest quantity of movies and images, a significant proportion of those fell within the higher (i.e. more serious) categories of child pornographic material.  In that context, it therefore seems to me that the head sentence of 15 months imprisonment for the Commonwealth offence and 12 months imprisonment for each of the State offences, all to be served concurrently, are appropriate.

[36]  The singular circumstance of the offending, together with the personal mitigating circumstances (including the lack of any criminal history and the expression of opinion of the low likelihood of re-offence) called for significant moderation of the sentences imposed.  When one then also has regard to the early indication of an intention to plead guilty, with the corresponding benefit to the administration of justice, the appropriate moderation of the sentence would have been to order the applicant’s immediate release on recognizance on the Commonwealth offence and immediate suspension of the sentences imposed for the State offences.

[37]  For these reasons, I joined in the following orders of the Court.

1. The applicant have leave to appeal against sentence.

2. The appeal against sentence is allowed.

3. The sentences imposed on 8 April 2011 are varied as follows:

(a)In respect of count 1, the sentence of 15 months imprisonment is confirmed and it is ordered and directed that the applicant be released forthwith upon his giving security by recognizance in the sum of $2,000, conditioned that he be of good behaviour for a period of two years;

(b)In respect of each of counts 2 and 3, the sentence of 12 months is confirmed and such sentence is suspended forthwith with an operational period of two years during which the applicant must not commit another offence punishable by imprisonment if to avoid being dealt with for the suspended term of imprisonment;

(c)These sentences are to be served concurrently;

(d) Direct that the applicant’s legal representatives explain the following matters to him in order to satisfy the requirements of s 16F of the Crimes Act 1914 (Cth):

(i)He has been sentenced to two years imprisonment but the Court has ordered that he be released immediately upon his entering into a bond of $2,000 requiring that he be of good behaviour for a period of two years;

(ii)The purpose of that order is to enable him to be released earlier than the full term of his sentence and to provide him with the opportunity to carry out the balance of his punishment in the community;

(iii) The bond is also conditional upon him being of good behaviour and, if he does not comply with its conditions, he may be brought back to Court and dealt with and depending on the nature of the breach:

1. A monetary penalty may be imposed;

2. The length of the bond may be extended;

3. A community service order or intensive correction order may be imposed; or

4. If the breach is more serious he may be required to serve the unserved balance of his sentence of imprisonment.

5. He is not required to pay the amount of recognizance of $2,000 but if he breaches the conditions of the recognizance he may, in addition to any of the other consequences that have already been referred to, be required to pay that sum.