A dangerous place

Recently I was doing my turn as duty barrister at what Charles Waterstreet aptly calls “the Drowning Centre” – the complex of courts in the old Mark Foy’s building now known as the Downing Centre after the long-term NSW Attorney-General in the 50s and 60s (and Catholic/right wing Labour power-broker), Reg Downing.

In fact, the Downing Centre, at least in its Local Courts part (the District Court is another matter), presents the courts’ mildest visage: it does not (at least normally) deal with persons in custody, so there is no dock and all the terrible apparatus (“Take the prisoner down!”) which goes with that. Of course, there are the now ubiquitous security searches at the entrance – a legacy of 9/11, can you believe.

Prisoners in custody are dealt with at the Central Criminal Court in Liverpool Street. Now that really is an old-school court. When you go there after the Downing Centre, it seems like a step back in time. Unfortunately, pictures are scarce. (Security, you know.) The main court is cavernous and, by modern standards, huge: you can feel the majesty of the law. That this particular manifestation has a shabby air simply lends a gothic touch.

My client was facing charges to do with child pornography and child abuse material.

I’m not going to talk about my client’s case.

Yesterday the ACT Attorney-General announced the appointment of a new Chief Justice for the ACT Supreme Court. The appointee is Helen Murrell. I must have too much time on my hands because I decided to have a quick scan of her published judgments.

One recent judgment delivered by Judge Murrell is a sentencing decision: R v Jack [2013] NSWDC 171. It’s a not unrepresentative example of a child-pornography sentencing.

Mr Jack was found guilty of 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)).

The maximum penalty for each of the Commonwealth offences is 15 years, and for the NSW offence, 10 years.

From mid 2009 to January 2011 (when he was arrested) Mr Jack downloaded and shared (by means of a file sharing program called Gigatribe) approximately 22,000 images and 1,000 multimedia files. They were overwhelmingly of boys aged up to about 14 (the judge doesn’t say what the lowest age was). It is worth quoting the breakdown of the files (at [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.

Category 6, you will see, is not the most serious category. It is a special category for Australia (maybe even just for NSW) because of the (out-on-a-limb) decision of Justice Michael Adams that animated and virtual images (in that case it was depictions of characters from “The Simpsons”) depict a person and so can be either child pornography or child abuse material.

Mr Jack was about 30 at the time of the offences and is now 33. He could not have the benefit of any attribution to him of remorse or any discount for a plea of guilty because Mr Jack maintained somebody else had downloaded and shared the files (which was not believed by the jury). He was a teacher and worked in the Anglican church with the young: there was no suggestion that he had engaged in any actual sexual conduct with such people and he had glowing character references to that effect. It was also likely he would have difficulties in gaol associated with his diabetic condition and the need for insulin injections – something which apparently the prison system is basically incapable of dealing with.

Judge Murrell sentenced him to total combined sentence of 3 years and 3 months, with an effective non-parole period of 2 years.

That’s not unusual. There’s nothing particular to see about Judge Murrell here.

To me this is a harsh punishment for a person who has yielded to the temptations of the internet to explore his repressed (and forbidden) sexuality, especially when you might well think that in the religious context of his life the specific direction of the sexuality might well have been partly influenced by its repression generally.

John Stuart Mill, I think it was, made the point that all punishment is harm and it must still be justifiable as some kind of good. There is so much of this material available on the internet; it must mostly be a matter of chance whether a particular person is apprehended: do we really think we will stamp it out this way? How can we justify such punishments?

The internet: it’s a dangerous place.

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