R v Cupples [2013] NSWDC 283

District Court New South Wales

Medium Neutral Citation: R v Cupples [2013] NSWDC 283 Hearing dates: 22 November 2013 Decision date: 22 November 2013 Before: Berman SC DCJ Decision: Referred for assessment as to his suitability to serve his sentence by way of an Intensive Corrections Order Catchwords: CRIMINAL LAW - Sentence - Use carriage service to transmit an indecent communication - Use carriage service to solicit child pornographic material Legislation Cited: Commonwealth Criminal Code Category: Sentence Parties: The Crown Jonathan Robert Cupples Representation: Mr T Healey - The offender Commonwealth Director of Public Prosecutions - The Crown Lambton Law - The offender File Number(s): 2011/257087 Publication restriction: There is to be no publication of the identity of recipients of transmitted material

SENTENCE 1HIS HONOUR: Jonathan Cupples appears for sentence today on two matters, both offences under the Commonwealth Criminal Code. The first is an offence of using a carriage service to transmit an indecent communication. That is an offence that carries a maximum penalty of seven years imprisonment. In this case, the indecent communication that Mr Cupples transmitted was nine photographs of his erect penis. 2The second offence is one of using a carriage service to solicit child pornographic material. That is a more serious offence, carrying a maximum penalty of fifteen years imprisonment, and it relates to him soliciting two young girls, one aged eight and one aged eleven, but who said she was twelve, to show him their genitals. 3I will not use the names of the complainants in these remarks on sentence. I have already prohibited publication of their names. I will call them victim A and victim B. 4Victim A's sister signed into MSN and received a message from the offender who was using a pseudonym and who falsely pretended that he was twenty years of age when he was in fact twenty-eight. Nothing untoward apparently occurred on that occasion but a short time later victim A, who was eight, and victim B, who was eleven (but said she was twelve when she communicated with the offender), used victim A's sister's computer. They wanted to go onto Facebook but in the course of their use of that computer a message was received on MSN from the offender, still using his pseudonym. 5The victims began to chat with the offender. Importantly, victim A gave her real name and real age. The older victim, perhaps more wiser, gave a pseudonym. The web cam was operating and so the offender could see both the victims. He thus well knew that the people to whom he was communicating were children and thus vulnerable to exploitation. The vulnerability of victim A of course is made clear by the circumstance that she identified her real name and correct personal details about herself. 6The offender actually asked that the two complainants meet up with him. Fortunately they declined. 7At some stage during this conversation it is disturbing to understand that Mr Cupples must have got an erection. He then took a photograph of it, in fact nine photographs, and sent these to victim A and victim B. That is the first of the offences. 8He then asked the victims to show him what he described as their "pussy". The victims then made a video of themselves using the web cam. They danced in front of the web cam with their underwear pulled down and exposing their genital areas. That is the second offence, one of using a carriage service to solicit child pornography material. 9In August, some months later, police attended the offender's premises and executed search warrants. They seized his computer and conducted an investigation of it. He declined to answer questions put to him by police. 10In some ways the first of these offences is akin to the relatively common but still disturbing aspect of public life described as "flashing", but this is more serious than that because, using the Internet, the offender was able to penetrate the sanctity of the victims' home and he was, as the second offence demonstrated, able to persuade naïve, young children to engage in sexual behaviour over the Internet. On top of that, there was of course the request to meet up with the young girls, which they fortunately declined. There is no doubt that there is a grave risk of harm to victims from behaviour such as this. It is for that reason that the legislation and the courts treat offences such as this as seriously as they do. 11I mentioned before that the offender was twenty-eight years of age. He has no other criminal history. In some ways his upbringing is unremarkable but in other ways he is unusual. In common with many other people in the community, his parents separated when he was a child and some difficulties arose as a result of that. But less commonly there are a number of other circumstances which deserve mention. 12Firstly, and most obviously, Mr Cupples suffers from scoliosis. He has had operations to have metal rods inserted into his spine but the effects of that condition are obvious. He is only five foot three and relatively small in build. Less obvious are the other events that have affected Mr Cupples in his life. He himself was the victim of sexual assault. He was also a witness to a murder and, on top of that, was a witness to a fatal motor vehicle accident where he was involved in attempts to save the life of the victim of that collision. Not surprisingly, these events have had a substantial impact upon Mr Cupples. 13At the time of his offending he appears to have been at something of a low point, feeling socially isolated and seeking out younger people on the Internet in an effort to avoid rejection. 14He has been seen by a psychologist who prepared a report for the Court. In one particular aspect the psychological opinion is probably a bit over-optimistic. The psychologist reports that it was his opinion that Mr Cupples showed his penis to the young girls because that part of his body "represented for him one part of his body that he could be proud of". In truth, as Mr Healey acknowledged, that fails to take account of what Mr Cupples was really up to; engaging in sexual behaviour with young girls. He took a photo of his erect penis, in fact nine photos, precisely because it was a sexual organ, not because it was "one part of his body that he could be proud of". 15Mr Cupples has seen other psychologists too for the purpose of preparing a presentence report. There is significant assistance that can be provided to Mr Cupples by way of courses and treatment, whether he receives a custodial sentence or otherwise. 16Mr Cupples' behaviour is obviously of grave concern. It is disturbing that a twenty-eight year old man would gain an erection when discussing things over the Internet with a girl of eight and either eleven or twelve. It is to be hoped that these offences will be isolated. It is to be hoped that never again will Mr Cupples engage in sexual offending involving young children. 17I will do what I can to bring about that result. Of course, I do not do this as a favour for Mr Cupples. I do that to minimise the risk of future harm being occasioned to young children, and I hope to bring about a situation where Mr Cupples does not offend in this way again, by promoting both his rehabilitation, and also personally deterring him. 18Mr Healey has submitted that an appropriate outcome would be the imposition of an intensive corrections order, implicitly submitting that a sentence of imprisonment was required but that it would be two years or less. Whilst the Crown's primary position is that fulltime custody is appropriate, the Crown also concedes that an ICO is within range, again implicitly accepting that a sentence of imprisonment of two years or less is appropriate. 19I propose to impose such a sentence on Mr Cupples should he be assessed as suitable. An ICO is not a walk in the park. Unlike a suspended sentence, it does carry with it an aspect of punishment but there is also considerable scope for participation by Mr Cupples in the courses referred to in the presentence report which will aid his rehabilitation. 20I should say that I have taken into account that Mr Cupples pleaded guilty at an early opportunity and thus his willingness to facilitate the course of justice is something that I have taken into account. 21The matter is adjourned until 28 February, at 2 o'clock in Sydney. 22Having decided that it is likely that a sentence of two year or less will be imposed upon him, I will refer him for assessment as to suitability to serve that sentence by way of an ICO.