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District Court 3 October 2019

R v Punter

[2019] NSWDC 965

Sexual offences
CRIME CHILD SEX OFFENCES COMMONWEALTH OFFENCE ONE SUBSTANTIVE OFFENCE CONVICTED BY A JURY OFFENDER WAS IN HIS LATE THIRTIES

Citation: R v Punter [2019] NSWDC 965
Court: District Court of New South Wales
Date: 3 October 2019
Judge(s): Tupman DCJ

Background

The offender was a man in his late thirties who, in late 2016, was completing a teaching degree and undertook a six-week work placement at a high school. Following that placement, he made contact via Facebook with a student from the school, and the school subsequently reported concerns to police. The Child Exploitation Internet Unit took over the investigation and created a fictitious online identity purporting to be a 15-year-old boy named "Jack," who initiated contact with the offender on 13 March 2017.

Between 13 March and 9 May 2017, the offender exchanged online chats, telephone calls and SMS messages with this assumed identity. The communications included increasingly sexualised language and repeated attempts by the offender to arrange an in-person meeting. He was arrested on 9 May 2017.

The offender was tried by jury and convicted on 15 April 2019. He appeared before the District Court for sentencing on 3 October 2019.

Legal Issues

  • What was the appropriate objective seriousness of the offending within the range of conduct captured by s 474.27(1) of the Criminal Code Act 1995 (Cth)?
  • Whether fulltime imprisonment was required, or whether a suspended sentence under s 20(1)(b) of the Crimes Act 1914 (Cth) was open in the circumstances?
  • How the offender's lack of a guilty plea, absence of prior criminal record, mental health history, and risk of reoffending should be weighed in determining the sentence?

Decision

Objective seriousness

The court placed the offending towards the bottom of the range for offences under this section (at [30]-[31]). Relevant factors included that the offender used his own name and Facebook identity without concealment, did not initiate contact with the assumed identity, communicated for a relatively short period, used sexualised language at a relatively low level, and exposed the assumed identity to no pornography (at [27]-[30]). The court noted that the assumed identity first approached the offender, though the offender thereafter engaged willingly (at [27]). The fact that no real child was involved did not reduce objective seriousness, because the offence is directed at the offender's intention rather than the actual existence of a victim (at [31]).

Fulltime custody

The court accepted, drawing on R v Nahlous [2013] NSWCCA 90, that a custodial sentence is required in many cases under this section but is not invariable, and that exceptional circumstances are not a prerequisite for suspending a sentence (at [33]). General deterrence remained a significant consideration given the difficulty of detection and the harm caused by grooming (at [34]). However, a combination of factors, including the low to medium risk of reoffending, absence of prior offending, the offender's mental health conditions (which would make fulltime custody more onerous and diminish the weight of general deterrence), and his ongoing community supports, led the court to conclude that fulltime custody was not required here (at [38], [40], [41], [46], [48]).

Plea, character, and rehabilitation

The offender did not plead guilty and maintained his innocence, meaning no discount applied for the utilitarian value of a plea (at [35]). His absence of prior criminal record was taken into account in his favour, despite the Crown's submission that offences of this type are commonly committed by persons of good character (at [36]). The court found the offender's lack of insight arising from his maintained innocence complicated specific deterrence analysis, but noted that the same feature made it difficult to see how the sentence alone could alter his outlook (at [37]).

Mental health and personal circumstances

The court accepted evidence that the offender had suffered serious trauma, including kidnapping, robbery and sexual assault in 2002, and childhood sexual assaults, leaving him with ongoing post-traumatic stress disorder, anxiety and depression (at [43]-[45]). These conditions were not causally connected to the offending but were relevant to the weight of general deterrence in the sentence and the likely onerousness of fulltime custody (at [41], [46]). The court assessed him as a low risk of reoffending on a clinical basis, noting no abnormal sexual interests and the absence of psychological or social risk factors (at [40], [47]).

Orders Made

  • The offender is convicted.
  • Sentenced to a term of imprisonment of 2 years, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth).
  • Released forthwith upon entering into a recognisance for 2 years with a value of $500.
  • Forfeiture order made as per the document dated 3 October 2019.

Key Takeaways

  • The District Court confirmed that fulltime imprisonment is not an invariable outcome for offences under s 474.27(1) of the Criminal Code Act 1995 (Cth), and that a suspended term is available without the case meeting any "exceptional circumstances" threshold, consistent with R v Nahlous (at [33]).
  • Objective seriousness under s 474.27(1) spans a wide range: factors pointing to the lower end include the offender not initiating contact, not concealing their identity, communicating for a short period, and using relatively mild sexualised language rather than explicit or pornographic material (at [27]-[31]).
  • The absence of a real child victim does not reduce objective seriousness, because the gravamen of the offence is the offender's intention rather than the actual existence of an underage person (at [31]).
  • Under the Commonwealth sentencing framework in s 16A of the Crimes Act 1914 (Cth), an offender's prior good character must be taken into account on sentence even where the Crown submits that such offences are commonly committed by persons with no prior record (at [36]).
  • Mental health conditions that are unconnected to the offending can still be relevant to sentencing, both by reducing the weight to be given to general deterrence and by indicating that fulltime custody would be more onerous than it would be for a person without those conditions (at [41], [46]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth): ss 16A, 20(1)(b);
- Criminal Code Act 1995 (Cth): ss 474.27(1), 574.27(1).

Cases
- R v Nahlous [2013] NSWCCA 90