District Court New South Wales Medium Neutral Citation: R v Punter [2019] NSWDC 965 Hearing dates: Thursday 26 September 2019 Date of orders: Thursday 3 October 2019 Decision date: 03 October 2019 Jurisdiction: Criminal Before: Tupman DCJ Decision: (1) The offender is convicted. (2) Sentenced to a term of imprisonment of 2 years, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). (3) Direct that he be released forthwith on his entering into a recognisance for a period of 2 years with a value of $500. (4) I make a forfeiture order as per the document entitled "Forfeiture Order". Catchwords: CRIME — Child sex offences — Commonwealth offence — Use carriage service to procure child for unlawful sexual activity — Maximum penalty of 12 years imprisonment — One substantive offence — Convicted by a jury — Offender was in his late thirties — Offender was approached online by an assumed identity created by police that was a 15-year-old-boy — Offender believed the assumed identity was an underage boy — Offender wanted to meet 15-year-old boy and he engaged in sexually explicit communication with that assumed identity — No prior criminal record — Offender does not admit guilt — low to medium risk of reoffending. Legislation Cited: Crimes Act 1914 (Cth): ss 16A, 20(1)(b); Criminal Code Act 1995 (Cth): ss 474.27(1), 574.27(1). Cases Cited: R v Nahlous [2013] NSWCCA 90 Category: Sentence Parties: Regina (The Queen) Mr James Punter (The Offender) Representation: Counsel: Mr. S. Howell (the Crown) Mr. S. Schaudin, (the Applicant) File Number(s): 2017/00141793 Judgment 1. HER HONOUR: The offender is before the Court for sentencing following his conviction by a jury for a charge that between 13 March and 10 May 2017, he used a carriage service to transmit communications to a recipient, who he believed to be someone aged under 16, with the intention of making it easier to procure that person to engage in sexual activity with him. This is an offence contrary to s 574.27(1) of the Criminal Code Act 1995 (Cth) and as such carries a maximum penalty of 12 years imprisonment. 2. The trial with a jury ran between 3 April and 15 April 2019. The jury returned a verdict of guilty to this charge on 15 April. There have been some difficulties involving both my availability and the availability of others since then which have delayed the sentence, but he comes for sentence today. 3. The evidence before the jury was not significantly in dispute. There were also some agreed facts before the jury which in large part amounted to admissions relevant to prove formal matters. These included the fact that the offender during the relevant period was operating a Facebook account using a carriage service to do so and was operating using his own name, James Punter. 4. The subject matter of the charge comprised a group of online chats, telephone calls and SMS messages between the offender and a person who was in fact a fictitious person, an assumed online identity created by police from the New South Wales Police Force Child Exploitation Internet Unit. This assumed online identity purported to be a 15-year-old boy named Jack. 5. The background was that in late 2016 the offender was completing his degree at the University of Western Sydney to become a history and geography teacher. In the final term of 2016, he worked for 6 weeks at Eagle Vale High School as a student teacher. During the Christmas holiday break after that he sent Facebook friend request to a young person who was a student at the school. This person was aged 16. The young person accepted the Facebook friend request and there then followed a series of conversions between the two of them on Facebook messenger. The last of these occurred on 1 January 2017 when the offender sent the young man an image of his bare chest with comments that the young person was welcome to feel his muscles. 6. The young person told his mother and deleted the offender as a Facebook friend. His mother told him to tell the police, which he forgot to do until February 2017 on his return to school. He did so at school and the authorities there contacted the police, identifying the offender has having been there in the final term of 2016 on work experience as a student teacher. 7. The COPS entry subsequently created by police indicates that school authorities informed police of a similar contact of which they had become aware after the offender finished his work experience at the high school. Over the summer holidays the offender was in contact with another student from the school who had not been in any of his classes, who was aged 17, and there was a steady conversation between the two via Facebook. 8. This is the detail appearing in the COPS entry tendered on sentence, which was before the jury and had originally been the subject of some voir dire findings. This communication between the offender and this other 17-year-old student involved an attempt to obtain a time and place to provide tuition for this person. 9. The school informed police that they had concerns that the offender was grooming the student, but in neither case brought to the attention of the police at that stage, were the police able to identify any offending. 10. The complaints were originally made to Macquarie Fields police and with this background, and in this context, the matter was then taken over by the Child Exploitation Internet Unit from a little before 13 March 2017. As part of that investigation officers created a fictitious online identity and various officers acted as an assumed online identity communicating with the offender. 11. It is these communications which form the subject matter of the offence. The assumed online identity first approached the offender on 13 March 2017. The specifics of the text and conversations are set out in some detail on sentence. 12. The initial contact involved the assumed online identity making reference to a video he had seen of the offender at the gym. The offender was undertaking gym work at the time and had posted a video of himself on his Facebook account. The assumed online identity, which I will now refer to as the AOI, made a reference to wanting to achieve the same body shape and asked to be helped out. He used the term "sir". There were then several messages. The offender asked if he was 15 and the AOI said he was. The offender asked to see a photo of the AOI, or the person with whom he was communicating. The police sent a photo of a 15-year-old and there was then further conversation between them. 13. The offender raised the possibility of the two meeting and offered to provide some tuition and also assist him with body building. He told the AOI that he was double his age and there were further conversations about the possibility of meeting him at a gym. This apparently occurred during the first two contacts. 14. On 21 March 2017, there was the third online chat. The offender asked the AOI to send a further photo, preferable shirtless, but the AOI was reluctant. The offender then said that that was not a problem but returned to the possibility of meeting the following Friday. 15. The specifics of the remaining online communications and telephone calls are to be found at paragraphs 23 to 45, inclusive, of the Crown's written submissions. They represent the evidence which was before the jury at trial and given the jury's verdict of guilty it must be the case that the jury was satisfied that these communications were intended to make it easier to procure the person, who the offender believed to be a 15-year-old boy, to engage in sexual activity with him. I do not propose to read all of those communications onto the record. I will do my best to summarise it and the overall flavour of the material without the need to repeat the actual words used. 16. On 22 March there was a fourth online chat between the offender and the AOI in which the offender used sexually suggestive language. By the fifth contact, 23 March, the offender introduced the topic of massage. He then suggested that they should go jogging together. There was a following conversation on 24 March of a similar nature in which he invited the AOI to go jogging with him. 17. By this stage he had provided his telephone number and there was telephone conversation on 28 March 2017. In that conversation the AOI was in fact disguising his voice so that he would sound like a 15-year-old boy. The offender was aware that the AOI was hiding the conversation from his mother. 18. There was sexually suggestive language and a further invitation to meet him at East Hills and pick him up from the station. There was then conversation about the possibility of meeting in the forthcoming school holidays and also the offender offered to provide tuition. There was then a 7th and 8th online chat on 30 March and 3 April 2017 and the offender was organising a meeting and further discussed having massages. 19. Then the AOI told the offender that he was getting confused and asked the offender if he liked guys or girls. The offender said girls and there was further conversation between them about this. The AOI specifically said words along the lines that he thought there was a possibility that their chats, in his words, "would go somewhere" but that now he knew the offender liked girls, he was feeling silly. There was discussion about the fact then raised by the offender that the AOI was only 15, and then query back about whether or not the situation would be any different if he was 16. 20. By early April the offender had become more overtly sexual in his communications with the AOI in the way set out in paragraphs 40, 41 and 42 of the Crown submissions, which was the actual evidence before the jury. The offender then told the AOI that he was bisexual and there was more explicit sexual conversation. There was then further discussion in which the offender raised the need for secrecy. The offender kept trying to arrange a meeting but about a week after this last call the AOI sent a message saying that he would not be able to make the meeting. A little later the offender messaged him again and tried to organise a meeting and then became increasingly frustrated that this was not happening. 21. The exchanges between them ended on 9 May 2017, with the offender sending a rude message to the AOI, which used a word which had a sexual connotation but which I accept in context was used more as a somewhat juvenile expression of frustration on the part of the offender when it was clear to him that the face-to-face meeting with the AOI was not going to occur. 22. As is clear from this summarised version of the facts that are contained in the Crown submissions, and which was the evidence before the jury, the 15-year-old boy named Jack did not exist and was a fictitious identity. The jury's verdict indicates that they were satisfied that the offender believed that in fact he existed and believed that he was communicating with a person aged under 16 who was a 15-year-old boy. He engaged in an ongoing basis between the first contact on 13 March until he was arrested on 9 May in this way, increasingly trying to make arrangements to meet him, using some sexually charged language from time to time and according to the jury's verdict did so with the intention of making it easier to procure the AOI to engage in sexual activity with him. 23. Exactly what the sexual activity was to be is not able to be ascertained from the evidence. The offender denied that this was his state of mind, claimed to have realised that he was not communicating with a 15-year-old boy but thought he was being set up in some way and was going along with it to try and find out who was doing this and further asserted that he never intended to have any contact with the person. The jury's verdict of course means that these assertions cannot be accepted. 24. He was engaging in this conversation on the face of it at the very least with the intention that there be a meeting in the school holidays and engaging in the forms of conversation that he did with an intention of making sexual contact with the person easier, but it is not possible to make any other findings about what that sexual activity was to be other than it was to be some form of sexual activity. 25. This is a Commonwealth offence and as such the sentence must be in accordance with Part 1B of the Crimes Act 1914 (Cth), and s 16A, which sets out a number of matters that the Court must take into account. The first of those matters are the facts and circumstances of the offending, or in other words an assessment of the objective criminality. 26. This particular offence brought under s 474.27(1) can cover a broad range of offending. It can involve a person actively searching teen chat lines, engaging in multiple conversations with young people, doing so with young people who they believe often to be very young, and using language of a much more explicit type than here and often doing so using an assumed name or identity or via an online platform that is difficult to detect. 27. The Court is depressingly familiar with the broad range of factual circumstances which can be included and charged under this section and the levels of deception and persuasion often used by offenders to commit an offence brought under this section. In this case the offender used his own name, his own Facebook identity, did so using a carriage service apparently in his own name and easily traced to him. He did not seek out this person. The AOI sought him out first. Thereafter he engaged willingly but he was not, so far as the evidence before the jury is concerned, apparently sitting at home trawling through various internet chat sites trying to entrap young people. He did use some sexualised language, but it was on my finding at a relatively low level, not some of the more lurid sexually explicit language which this Court so often sees in communications falling within this particular offence. There was no exposure to pornography or pornographic language of the type regrettably seen in cases of this type before the Court. 28. He was 37 at the time, which somewhat elevates the objective seriousness of the offending, given that he knowingly was engaging in this way with a 15-year-old boy, but he did not try to hide his age and he did not try to create a false identity. He did ask for secrecy on one occasion. The Crown submissions are that he demanded secrecy, but it seems to me that that is something of an overstatement. He did not demand anything but requested secrecy. 29. There were specific attempts made by him to meet the person who he believed was a 15-year-old boy and it was not just idle chatter on my finding but, it seems to me that that is an inherent part of this offence itself, namely engaging in this online behaviour with the intention of making it easier to engage the person in sexual activity with him. The fact that he was actively seeking to have some contact with a victim outside the online chat platform cannot in that way elevate the objective seriousness of the offending. 30. This particular offence is directed towards online grooming, namely activity which is designed to win the trust of a child online with a view to meeting and engaging a child in sexual activity. Often this is done by posing as another child or young person. That is not the case here and in fact right from the initial contact the offender must have thought that the AOI knew who he was because he claimed to have been shown a picture by friends who had been at the school where the offender was working, undertaking work experience. The communication between the two of them also was for a relatively short time. This offending in my view is towards the bottom of the range for offences capable of being charged under this section. 31. The fact that he was not communicating with a real person, but an assumed identity, does not lower the objective seriousness because the gravamen of the offending is directed towards the intention of the offender, but for all of those other reasons which I have identified it is towards the bottom of the range in terms of objective seriousness. 32. The maximum penalty of 12 years indicates that this is a serious offence, and the maximum penalty must be borne in mind, but the sentence must be appropriate in all the circumstances, taking into account not just the objective seriousness but also other factors. 33. A term of imprisonment or a custodial sentence would be an expected outcome for such an offence, but it is not the invariable outcome, and nor is it necessary for a case to be identified as exceptional before fulltime custody would be the only appropriate outcome. I have been referred to the decision of the New South Wales Court of Criminal Appeal, R v Nahlous [2013] NSWCCA 90, which I accept is authority for the proposition that it is not only in exceptional circumstances that anything other than fulltime imprisonment would be appropriate. In particular, I have had regard to paragraph 88 of that decision in which the Court states that a custodial sentence will be required in many cases but, however, it is not always required. Furthermore, the statistics published the New South Wales Judicial Commission for offences sentenced under this section in this Court, whilst representing a fairly small sample size, does indicate that fewer than half of those reported sentences were dealt with by way of fulltime custody. 34. Clearly enough, the sentence must reflect a degree of general deterrence. These offences are hard to detect, and considerable government resources are used to do so. They are capable of causing great harm to children who find themselves groomed. Sentences must send a strong message that the community will not tolerate this sort of behaviour because of the known adverse impact which it has on those children who find themselves the subject of grooming. 35. This offender did not plead guilty. The matter went to trial, and he was found guilty. He maintains his innocence as he is entitled to do. Of course, that means that he is not entitled to have any discount factored into the appropriate sentence to represent the utilitarian value of any plea or a willingness to facilitate the interests of justice, but because he did not plead guilty is not a factor that can be taken into account to elevate what would otherwise be the appropriate sentence. 36. He comes to Court as a person who is entitled to have his prior good character taken into account. He has no prior criminal record. He is, as I have said, entitled to have that taken into account and whilst it is frequently the case that the Crown submits that offences of this type are regularly committed by people of prior good character, and whilst it may well be the case, that does not remove the fact that the provisions of s 16A of the Crimes Act 1914 require that to be taken into account on sentence, and I do so. 37. It is difficult to assess the offender's prospects of rehabilitation because he does not admit his guilt. The Crown's submission is that this increases the need for specific deterrence to deter him from behaving in the same way again. There is a need for this sentence to incorporate an element of specific deterrence but whilst the Crown's proposition may seem attractive on paper, in reality in my view it does not actually bear logical scrutiny. It is hard to see how anyone would be specifically deterred from behaving in any way by whatever the sentence is, if in fact they do not admit that they committed the offence. He certainly lacks insight because he does not admit having committed the offence, but for that very fact it is hard to see that whatever happens to him in this sentence, that alone is likely to change that view or approach. 38. It is necessary to assess the prospects of rehabilitation and the risk of reoffending. There is before the Court a report from Community Corrections and a psychiatric report from Dr Nielssen. He is assessed by both as being a low to medium risk of reoffending. I accept that that is the case. 39. Whatever might be the actuarial risks he presents using the Static 99R assessment, in coming to a conclusion for the purpose of the sentence on his risk of reoffending and therefore prospects of rehabilitation, I take into account the fact that he has never engaged in such behaviour with underage people in the past. It is the case of course that there was this contact with other students over the same school holiday period, which could be regarded as inappropriate, but of course each of those were over the age of 16, so it did not involve his actually committing or getting close to committing any criminal offence. It seems to me that it would always be inappropriate for a teacher to seek to have any form of contact with a student with a view to sexual contact but there is no evidence that that was the case here and nor was it regarded in that way by the police. 40. Except for that, however, there is no evidence that he ever engaged in similar behaviour in the past. He was in training to be a teacher and it was in that context that he knew the two other boys and believed he had some form of indirect connection with the AOI. He will almost certainly never be engaged as a teacher. He will have limited, if any opportunity, to have contact with children as a result of being placed on the sex offender's register for a period of time. He has been on bail for more than two years without any apparent breach. He is trying to undertake work. He has available supports in the community. A combination of his past lack of offending before being charged and his recent past on bail it seems to me leads to a view that he is a low risk. He does not have any psychological or social factors which increase the risk. 41. He does come to Court, however, as a person with a series of mental illness issues, which whilst they are not directly connected with his offending behaviour means he is a lesser vehicle for general deterrence, and I take those matters into account. 42. He is now aged 40 and lives with his parents in Sydney and his parents continue to offer him support and there is a reference from them and from his grandmother. He has a bachelor's degree in criminology and a degree in forensic science and a master's degree in secondary education. He, according to the sentence assessment report, enrolled in a course or was engaging in a course on a casual basis involving warehouse logistics. I am not sure whether than means he is also working in that capacity. I understand that to be the case. 43. He was the victim himself of a serious offence in July 2002 when he was kidnapped, robbed and physically and sexually assaulted. There is a determination from the Victim's Compensation Tribunal outlining these events. I will not repeat the detail, but it was a serious offence I accept which has left him with serious ongoing psychological sequelae. He suffered post-traumatic stress disorder following this incident and has continued to have counselling. He suffered from depression and anxiety also, for which he has been treated and which has been noted by his family. 44. He also provided Dr Nielssen and others who treated him following 2002 with other background which indicates that he himself had been the subject of some sexual assault when he was a five-year-old child and a 12-year-old child. He believes that some of the events that have occurred to him in more recent times have, to an extent, involved some discrimination against him, because he identified as homosexual. The reports of treatment that he has received following the events of 2002 have been tendered, I have read them, and they were also read by Dr Nielssen and taken into account for purposes of his opinion. 45. I accept that he has been suffering from post-traumatic stress disorder since that event and has had moderate levels of anxiety and depression. I accept that these latter symptoms increased in 2017 following his arrest for these matters. He has medication for his mental health issues. The mental health issues are ongoing. 46. I accept Dr Nielssen's opinion that he suffers from anxiety disorder and depressive illness which is in partial remission and post-traumatic stress disorder. As I have said, there is no connection between any of his mental health issues and his offending for which he is to be sentenced, but the fact that he suffers from these mental health issues are relevant on sentence, at the very least because of the impact that it has on the extent to which general deterrence impacts on the sentence. These ongoing mental health issues would also make his experience of fulltime custody more onerous and more probably than not if he were to be incarcerated fulltime he would be on protection and have limited contact. He impresses, I must say, having seen him during the course of the trial, as a relatively difficult person and it seems to me that his personality would be perceived from time to time as somewhat abrasive, which would have an impact on the way in which he would experience fulltime custody, should that be the outcome. 47. I accept Dr Nielssen's opinion that he is a low risk of reoffending on the basis of a clinical assessment, but I have read the actuarial assessment of his risk of offending using the Static-99R model. Dr Nielssen's opinion is that he should continue counselling and medication to deal with his existing mental health issues. He has, however, no thought disorder nor any abnormal sexual interests which would increase his risk of reoffending. He does not require ongoing sexual offender counselling as a result of those findings according to Dr Nielssen, but I note in the Sentence Assessment Report that the offender himself has agreed that he would undertake any if required. 48. Taking all of those matters into account I then must determine the appropriate sentence. It seems to me that a term of imprisonment of 2 years is called for. I have taken some note of the comparative sentences provided. There are very few that are of the same low objective seriousness, but I have taken those into account. In the circumstances it seems to me that it is open to the Court to deal with this matter without the offender receiving fulltime custody, pursuant to the provisions of s 20(1)(b) of the Crimes Act 1914, by imposing a term of imprisonment and suspending it forthwith. That is the course that I propose to take. 49. Whilst it is also open for the Court to order that the recognisance that must accompany that extends beyond the term of imprisonment it seems to me that a recognisance for a period of 2 years is sufficient to deal with the issues that the offender needs to have addressed to reduce even further any risk of reoffending and promote his rehabilitation. 50. For those reasons then I make the following formal orders: 1. The offender is convicted. 2. He is sentenced to a term of imprisonment of 2 years, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). 1. I direct that he be released forthwith on his entering into a recognisance for a period of 2 years with a value of $500. 2. To come up for sentence at any time if called on for any breach committed during the term of the recognisance. 3. It is to be subject to a condition that he accepts supervision from Community Corrections and engage in counselling, as directed by them. 4. A further condition will be that he report to Liverpool Community Corrections office no later than Friday 11 October to enable the supervision to commence. 1. I make a forfeiture order as per the document entitled "Forfeiture Order" dated today, 3 October, signed by me, and placed in the file. ********** 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: 21 November 2022