The Queen v Kenneth Edward Hill

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Robinson AJ
• Judgment Date: 16 December 2015
• Docket Number: File Number(s): SCC 46 of 2015
• Date: 16 December 2015

[2015] ACTSC 391

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Robinson AJ

File Number(s): SCC 46 of 2015

The Queen

(Crown)

and

Kenneth Edward Hill

(Offender)

Representation:

Counsel

Ms S Jowitt (Crown)

Ms S Saikal (Offender)

Cases Cited:

R v De Leeuw [2015] NSWCCA 183

R v Ferguson [2015] ACTSC 363

R v Falzon [2015] ACTSC 104

R v Porte [2015] NSWCCA 174

The Queen v Hancock [2011] NTCCA 14

The Queen v Hill [2015] ACTSC 289

The Queen v Pham [2015] HCA 39

Legislation Cited:

Criminal Code Act 1995 (Cth) s 474.19, 474.22

Crimes Act 1900 (ACT) ss 24, 54, 61

Crimes Act 1914 (Cth)

CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Judgment and Punishment — Sentence — using a carriage service for child abuse — offending at lower end of seriousness — deterrence high priority.

Robinson AJ

1 Kenneth Edward Hill, the offender, has pleaded guilty to one count of using a carriage service to access child pornography material during the period 22 May 2014 and 26 July 2014.

2 The offence of using a carriage service to access child pornography material is contrary to s 474.19 of the Criminal Code Act 1995 (Cth) and carries a penalty of 15 years' imprisonment.

3 On 20 August 2014, AFP officers executed a search warrant at the offender's accommodation. During the course of that execution the offender returned home to his accommodation and he was placed under arrest. At the time of his arrest he was in possession of his mobile telephone. When this mobile telephone was later analysed it was found to contain over 5800 images. These images had been accessed but not down loaded and saved to the phone. Officers conducted an analysis of about 500 of those images, selected on the basis that the images were each 30 kilobytes or larger in size. There were 64 of those 500 or so images which were of child pornography. Of these child pornography images, 62 were classified at CETS 1 (material depicts non-sexual activity, including nudity and sexually suggestive posing) and the remaining 2 images were classified as CETS 3 (material depicts non-penetrative sexual activity between children and adults). This classification system is set out in detail at [22] in R v Ferguson [2015] ACTSC 36 It will be seen that the offending is at the lower end of seriousness as it was in the case of R v Falzon [2015] ACTSC 104.

4 All of the images examined had been accessed by the offender via his mobile phone from the Internet. The history recorded in the offender's mobile telephone identified three discrete time periods in which the offender used his mobile phone to access these images. These were the period between 23 May 2014 and 28 May 2014, the period between 9 July 2014 to 12 July 2014 and the period between 23 July 2014 and 25 July 201These periods correspond to the purchase by the offender of ‘phone credits’ after which the offender almost immediately accessed the Internet in a search for sexual images. It is sufficient to set out some of the search terms which the offender used to find images on his mobile phone in order to give a description to the offender's conduct. These terms included-naturist juniors, naked girls images, naked family images, nudist kids beach images, little pussy images, little girls nudism images, naked girls images, naked Asian teen girls images, nudist beach family images, kids images, Asian teen pussy images and schoolgirls pussy images.

Procedural History

5 The offender was originally charged before the Magistrates Court on 11 February 2015 with using a carriage service to access child abuse material contrary to s 474.22 of the Criminal Code Act 1995. He pleaded not guilty to this charge and was committed to the Supreme Court on 3 March 2015 for trial. On 22 April 2015 the Director filed an indictment alleging the charge under s 474.19 of the Criminal Code Act in substitution for the charge before the Magistrate. The trial on the ex officio indictment was listed to commence on 23 November 201On 9 November 2015 the offender pleaded guilty to the one count of the indictment and stands for sentence. This plea of guilty against the background of a strong Crown case allows for an approximate 10 per cent reduction in the otherwise applicable sentence.

Criminal History and Current Custody

6 The offender came before me for sentence on previous matters on 25 September 2015. (See The Queen v Hill [2015] ACTSC 289). It is convenient to incorporate some of my observations on that occasion into these remarks upon sentence to explain the disposition of this sentencing proceeding.

7 The offender had only minor matters on his history until he reached the age of about 30. He was...