R v Chantler

District Court of NSW|2024-03-22|Before: Ms P

remarks on sentence

On 31 January 2024 the offender pleaded not guilty to the following two Counts on an Indictment:- 1. Count 1 - On or about 24 April 2022 at Cronulla in the State of New South Wales and elsewhere, used a carriage service to transmit a communication to a recipient (TA), being someone who is under 16 years of age, with the intention of procuring the recipient to engage in sexual activity with himself. This was an offence pursuant to s474.26(1) of the Criminal Code Act 1995 (Cth) ("the Code"). The maximum penalty prescribed for the offence is 15 years imprisonment. 1. Count 2 - On or about 24 April 2022, at Cronulla in the State of New South Wales and elsewhere, did an act in preparation for engaging in, or planning to engage in, sexual activity with a person under 16 years of age (TA), and the act was done using a carriage service. This was an offence pursuant to section 474.25C of the Code. The maximum penalty prescribed is 10 years imprisonment.

The sentence hearing

The sentence hearing took place on 22 March 2024. Exhibit A was the Crown sentence summary which included the sentencing remarks of Judge Townsden of the co-offender Foy dated 1 December 2023 together with a forfeiture order for the offender's mobile phone. Exhibit B were two victim impact statements ("VIS") of the parents of TA which were read to the court following the grant of leave pursuant to s16AAAA(1)(a)(ii) and s16AB(2) of the Crimes Act 1914 (Cth) ("the Crimes Act"). The VIS are referred to below.
Exhibit 1 was the two victim impact statements with the offender's objections highlighted.
Exhibit 2 was the offender's tender bundle which comprised 22 items referred to as Exhibit 2.1 to Exhibit 2.22.
Exhibit 3 was a letter from Mr Glen Chantler, who is the offender's younger brother dated 16 March 2024.
Exhibit 4 was a bundle of media publications published in the period 16 July 2022 to 1 February 2024.

Facts upon which the offender is to be sentenced

The offender is to be sentenced on the following facts derived from the evidence at trial and the jury verdict which I am satisfied have been proved beyond reasonable doubt. Count 1 concerned online communications on an application known as "Grindr" on 22 and 24 April 2022 between the offender, TA (who was 15 years old at the time) and a co-offender Allan Foy.
Initially the conversation took place between the offender and TA. During the communication on 24 April 2022 the offender asked TA "so how old r u" to which TA replied "15".
The communications involved a planned meeting between the three in order to engage in a "threesome" and involved the complainant and offender posting a number of explicit pictures. The victim invited the offender into a group chat that included the co-offender Foy and the offender accepted the invitation appreciating that this was to be a group chat about a threesome.
The entirety of the communications between the offender and the victim on 22 and 24 April 2022 are annexed hereto and marked "A". I am not going to recite them.
The exchange clearly represented conduct of the offender using a carriage service to transmit communications to TA who was under the age of 16 years with the intention of procuring TA to engage in sexual activity with himself.
Count 2 concerned the offender's separate communications with the co-offender, Foy wherein they discussed how to arrange and organise to meet with the victim in person for the purpose of engaging in sexual activity with him. The co-offender Foy initiated the separate chat with the offender at 3:43p.m. on 24 April 2022. The communications are annexed hereto and marked "B". I do not propose to recite them for the purpose of sentencing. They included a discussion between the two offenders as to how they would arrange and organise to meet with the victim for the purpose of engaging in sexual activity with him. A clear inference may be drawn from the communications that the offender was anxious to avoid the prospect of detection. By their verdict the jury did not accept the offender's evidence that he was trying to make up excuses to the co-offender and that he was not preparing for, nor planning to engage in sexual activity with TA. A further inference was that he was not unwilling to proceed but was concerned to minimise his risk of exposure.
I am satisfied beyond reasonable doubt that the evidence establishes that the offender was sexually attracted to TA based on the images TA sent to him and his responses to those images. I am further satisfied that the offender did not disbelieve TA when he told him he was 15 and I am further satisfied that the prospect of doing something which he knew to be illegal with a 15-year-old scared him to some extent.
Notwithstanding that, the offender was prepared to proceed with procuring the victim to engage in sexual activity with him. By refusing to use his own vehicle to pick up the victim and encouraging the co-offender to use his own means to provide transport for the victim the offender sought to reduce the prospect of detection of his own identity.

Summary of the offender's evidence

Exhibit 2.1 is the report from Dr R Furst, Forensic Psychiatrist dated 7 March 2024. Dr Furst assessed the offender on 27 February 2024 for a period of 80 minutes by audio-visual link. He took a family and social history. The offender grew up in a close family and after completing high school he obtained a Bachelor of Health Sciences and Diploma in Education. He worked as a swimming instructor from 2001 and as a teacher in physical education from 2005. He coached swimming at a high level and was appointed as a development officer for Swimming New South Wales. The offender also volunteered for Scouting New South Wales and the New South Wales Rural Fire Service.
Dr Furst took a history of the offender suffering low self-esteem and excessive anxiety. His anxiety was better controlled when he was active in a voluntary capacity or in the training capacity and when he was organising such activities. Dr Furst noted that his coping mechanisms diminished during the COVID-19 pandemic and the restrictions imposed during that time when he stayed home most of the time.
Dr Furst took a history that the offender went through a stressful period when an issue arose with Swimming New South Wales in March or April 2022. He had no psychological or psychiatric history and no history of excessive drinking or drug abuse. Dr Furst also took a history that the offender suffered from Bell's Palsy in 2011 or 2012 which further eroded his self-esteem.
Dr Furst took a history that the time of the conversation on Grindr, the subject of the index offences, was during school holidays. The offender had accessed "Grindr", a dating site for gay men "to hook up with someone or meet someone". He claimed to Dr Furst that he did not believe the victim was 15. Dr Furst summarised the notes of Dr Lara Mangelli, a psychologist who had been treating the offender since he had been charged. She first saw him on 19 May 2022 and had seen him on a total of 17 occasions. The offender had presented with symptoms of an adjustment disorder with mixed anxiety and depression triggered by the current charges. He had responded well to intervention and was motivated to continue psychological treatment.
Dr Furst diagnosed the offender as suffering an anxiety disorder and adjustment disorder with mixed depressed and anxious mood. There were no indications that he had a paedophilic disorder or any other paraphilic disorder.
Dr Furst opined as follows:- "He has been in the habit of accessing Grindr, a dating/meeting site for gay adult males, periodically for some time, which was a reason for him accessing the site on 24 April 2022, i.e. to meet a man for companionship and/or sex. There were no suggestions he was seeking an underage sexual contact when he accessed the site in the first place. Mr Chantler's decision to seek male companionship and/or sexual union at that point in time was slightly driven by sexual urges but was also a way of relieving the anxiety and stress he was feeling, as companionship, sex and sexual outlets are pleasurable and anxiety-relieving. His decision to persist in the communications in Grindr once he discovered that one of the males involved in the chat was only 15 years of age is hard to explain, likely representing poor judgement that was out of character for the offender."
Dr Furst further opined that, in agreement with Dr Mangelli longer-term psychological therapy would be required, and that the stress of being incarcerated will probably also increase the risk of experiencing more severe symptoms of depression and anxiety.
Dr Furst assessed the offender's risk of re-offending on the Static-99R instrument as average. He further opined that based on his clinical/dynamic profile and the results of the Static-99R his approximate risk of reoffending in a sexual manner within five years of release from custody or sentence is likely to be in the order of 12-15%. Supervision through Community Corrections would significantly reduce that risk. Dr Furst then set out a treatment plan to be supervised by the offender's GP.
Exhibit 2.2 was a letter from the offender's GP Dr Jehan dated 11 August 2023 referring him to Dr Mangelli.
Exhibit 2.3 was a mental health care plan review by Dr Sun.
Exhibit 2.4 was a letter from Dr Neil Griffith, Consultant Neurologist dated 8 September 2023 concerning the offender's father who at 68 years had been recently diagnosed with progressive supranuclear palsy.
Exhibit 2.5 was a document from New South Wales Rural Fire Service setting out the offender's training history.
Exhibit 2.6 was a Rural Fire Service document setting out the offender's qualifications from 21 November 2020 to 17 May 2023.
Exhibit 2.7 was an invitation to the Duke of Edinburgh's official opening to the national trail walk on 14 September 2019.
Exhibit 2.8 was a meritorious service award issued by Scouts Australia on 1 August 2016.
Exhibit 2.9 was a certificate of appreciation issued by Volunteering Australia.
Exhibit 2.10 was the offender's blood donation record.
Exhibit 2.11 was a record by the Volunteer Rural Fire Service of the offender's most recent callouts prior to his arrest on 26 April 2022.
Exhibit 2.12 was a record of the Volunteer Rural Fire Service major callouts which the offender had been involved in prior to his arrest.
Exhibit 2.13 was a list of the 2017 Cook Community Awards listing an award for the offender from the 2nd Caringbah Scout Group.
Exhibit 2.14 is a letter from One Meal dated 12 August 2021 confirming his volunteering for that organisation.
Exhibit 2.15 was a letter from Ms Monica Herrera dated 17 February 2024. Ms Herrera is a teacher and has known the offender for 38 years since they attended primary school together. The offender had disclosed the offences to her. She described the offender as a "a kind and generous man. He is a beautiful friend, son, uncle, teacher, instructor, and leader. He is a morally upstanding man." Ms Herrera wrote that the offender is devastated by the outcome of his trial and "he is not remorseful as he knows that he had no intention of entering into sexual activity with a child/teenager. He is however, regretful, that he did not report the user (who was a minor on an over 18s dating app) when he found out the child was 15 instead of blocking the conversation." Ms Herrera stated that the offender will never commit this act again.
Exhibit 2.16 is a letter from Mr Mark Smith dated 14 February 2024. Mr Smith is the President of Swimming NSW Metro South-East region and had known the offender for over 15 years through the sport of swimming. The offender had coached his daughter. He described the offender as "a terrific coach… His attention to detail is exceptional". He described him to be "sincere, polite and very obliging" and was willing to help others in his many volunteer jobs. He opined that the offences of which the offender had been found guilty are so far out of character "they defy belief."
Exhibit 2.17 was a character reference from Ms Jacqueline Cross dated 5 March 2024. She had known the offender since they were children and he had disclosed the offences to her. She described the offender as a "very kind-hearted, generous, respectful person who has dedicated most of his time to the community. He has worked in the local community as a very respected high school teacher and a swimming coach." Ms Cross stated that when not working in paid employment the offender was volunteering in many organisations, and his dedication towards the community had led him to receive a Cook Community Award. She further stated that the offender would "never intentionally do anything to harm or hurt anyone."
Exhibit 2.18 was letter from Mr Glen Hodson dated 13 March 2024. He had been a friend of the offender for 22 years. He stated, "Craig's involvement in this matter have impacted his life immeasurably, as prior to his arrest he was a well-respected member of the community through his teaching, coaching and volunteer work and a loved friend to many." He stated that the offender's offending had also impacted on members of his family. He described the offender as "an honest, hard-working and well-intentioned person, and a kind and supportive friend". He opined that the offender would never make a similar mistake again.
Exhibit 2.19 was a letter from Mrs Kylie Grigg dated 23 February 2024. She stated that she had known the offender for her entire life and that he had been an upstanding member of the community dedicating his life to education and volunteering over the past 25 years. She described him as an excellent teacher and volunteer. In 42 years she had never seen the offender act in a manner to put a child at risk, and described him as one of the "kindest, gentle and most thoughtful people I know and would never bring harm to anyone" as well as being a loyal friend she described him as " a wonderful human being".
Exhibit 2.20 was a letter from Ms Kerri Wright dated 15 February 2024. She described the offender as being "of excellent character who displayed professional and caring behaviour in everything he did." She set out examples of the offender's contribution to swimming and fundraising for charities. She expressed her opinion that she had no doubt that the offender would ever re-offend.
Exhibit 2.21 and 2.22 were a table of cases set out for comparative purposes and the JIRS statistics respectively.
Exhibit 3 was a letter from Mr Glen Chantler who is the offender's younger brother. He described the Chantler family as being close-knit having been brought up with a strong Roman Catholic upbringing. No-one in the immediate or extended family had a criminal record or had ever been in trouble with the police. He described the charges "as contrary to everything I know about Craig's character. He is the type of person who follows and abides by all laws and rules" and as someone who always put other people before himself. He described the offender as a big contributor to the community. Mr Chantler referred to their father's recent diagnosis with PSP, a rare brain disorder and the offender's contribution to maintain their parents' property and caring for the well-being of his father.
Prior to the offender's arrest the family was not aware of the offender's interest in the same sex but he has since come out to his family and friends. The impact of his arrest and bail conditions had restricted the offender from carrying out his many volunteer activities. Mr Chantler stated that the offender continues to have the full support from his family and friends.
Exhibit 4 was a bundle of media reports on the arrest and charging of the offender. These are referred to below.

The Crown's submissions on sentence

The Crown relied on a thorough detailed written outline of submissions in which it submitted that no sentence other than one of full-time imprisonment was appropriate in all the circumstances of this case pursuant to s17A of the Crimes Act, based on the gravity of the offending, the need for significant weight to be afforded to general deterrence, the presumption in s20(1)(b) of the Crimes Act, the need for some degree of accumulation to reflect the distinct aspects of the criminality engaged in by the offender and the need to denounce the offender's conduct.
The Crown set out well-established principles for sentencing Commonwealth offences and in particular child procurement offences.
In assessing the objective seriousness of the offending, the Crown submitted the following relevant factors:- 1. The number, length and type of conversations between the offender and the victim; 2. The frequency of conversations and the level of persistence by the offender (repeated communications may reveal a persistence in the conduct); 3. The nature of any sexual material communicated; 4. The nature of the sexual activity intended; 5. The extent to which the intent to engage in future activity is exposed and developed; 6. Whether any inducements were offered, including alcohol or money, or whether any threats were made; 7. Whether the victim was a real person; 8. The age and power differential between the victim and the offender; 9. The nature of any prior relationship between the offender and the victim; 10. The offender's level of awareness and deliberateness in the communicating; 11. Whether the recipient was susceptible to act in the way described by the offender; 12. The planning and sophistication involved in the offence, including any steps taken by the offender to protect his anonymity; and 13. Whether the offender ceased the communication of his own accord may also be relevant.
The Crown noted that the maximum penalties for the offences were 15 years imprisonment for Count 1 and 10 years imprisonment for Count 2. It submitted that the maximum penalties are an indication of the seriousness with which Parliament views such offences and are a yardstick for sentencing.
The Crown submitted the following matters would be taken into account pursuant to s16A(2) of the Crimes Act.

Nature and circumstances of the offences - s16A(2)(a)

The Crown set out the circumstances of the offending as summarised by me above.
The Crown submitted that the offending in Count 1 constituted a relatively serious example of an offence of its type for the following reasons:- 1. The victim was a real person; 2. The victim was previously unknown to the offender - they had had an online chat on Grindr two days prior to the offending but that was the extent of their prior interaction; 3. The offender was 42 years of age and the victim 15 years of age at the time of the offending - a considerable gap in both age and maturity. 4. The offender was told that the victim was 15 and the offender, by his comments, appreciated that he may get into trouble; there was also direct conversation between the victim, the offender and the co-offender in which the victim stated, "15 is not legal", to which the offender replied "We could get in trouble then"; 5. The offender was persistent in his conduct having regard to the volume of communications he had with both TA and with the co-offender Foy that were directed towards the end of procuring TA for sexual activity. However, it must be noted that this level of persistence extended only over the course of a period of a few hours on a single day: 24 April 2022. 6. The nature of the contemplated sexual activity included "a threesome" (while this was first suggested by the victim, it is apparent that the offender embraced the suggestion and pursued what he understood to be a threesome including TA). This is a particularly serious aspect of the conduct as it contemplated exposing the victim to group sex with two much older males; 7. Sexual material was communicated by the offender after he had been made aware of TA's age: he sent a number of images of his penis to the group chat and, in his private chat with TA, questioned him about his sexual experience, asked him what he "like(d) to jerk off over" and asked him about his "ultimate fantasy"; 8. There was no reward or other inducement offered by either the offender or the co-offender to the victim; and 9. The communications ceased in the first instance by virtue of the victim's non-responsiveness (in circumstances where his phone had been taken from him by his father).
In respect of Count 2, the Crown referred to the explanatory memorandum to the bill introducing the offence in s474.25C of the Code to establish the protective purpose of the section. The Crown submitted that this offending also constituted a relatively serious example of an offence of this type having regard to:- 1. The fact that it involved two mature adults together planning the logistics of meeting with who they knew to be a 15-year-old child in order to engage in sexual activity with him: with that sexual activity being group sexual activity; 2. The Court would be satisfied that the offender actually intended for sexual activity to take place based on his comments; 3. It is apparent that there was concern on the part of the offender not to be detected (the offender did not want to pick the victim up in his own car and suggested that the co-offender use Uber); and 4. It follows from the previous point that the offender appreciated that what he was doing was wrong and was consciously planning to minimise the risk of detection.
The Crown submitted that the offending did not appear to have been premeditated but rather the offender and co-offender were independently communicating with TA and the conduct in Count 2 arose as a splinter conversation off the group chat.

Personal circumstances of any victim and impact of offending - s16A(2)(d)-(e)

The Crown noted that the victim TA was 15 years of age. The Crown submitted there was intrinsic harm caused by such offending referring to R v Clarkson (2011) 32 VR 361 in which the Court noted that the absolute prohibition on sexual activity with a child is founded on a presumption of harm.

Offences committed in a course of contact/planned - s16A(2)(c)

The Crown submitted the offender's conduct was not entirely spontaneous or impulsive given that it extended over a period of time and exhibited a level of planning and a concern to take some steps to minimise the risk of detection. It was submitted that each of the two offences reflected discrete criminality and a degree of accumulation was warranted taking into account the principle of totality to appropriately reflect the offender's overall criminality.

Need for general and specific deterrence - s16A(2)(j) and (ja)

The Crown submitted that general deterrence is of particular significance in sentencing for offences of this type. There is a substantial public interest in promoting the protection of children in the online environment relying on R v Asplund [2010] NSWCCA 316; 216 A Crim R 48 at [50].
The Crown further submitted that specific deterrence was of some significance where the offender's communications made clear that he was aware that he could "get in trouble" for what he was proposing to do, but he persisted in any event. Further, whilst the offender had not been diagnosed with any paraphilia, it was apparent from his communications that his sexual interests were inclusive of TA when he was aged 15. The offender had not accepted responsibility for his actions and the offender's attitude to his own sexuality appeared to have persisted since the time of the offending.

Contrition, not guilty pleas, cooperation with law enforcement - s16A(2)(f)-(h)

The offender, having pleaded not guilty and being convicted following trial is not entitled to any discount and does not have the benefit of any pleas providing some evidence of contrition. The Crown however acknowledged that the offender cooperated with law enforcement agencies from the time of his arrest. He had participated in a record of interview acknowledging his online interactions with TA, he had supplied his mobile phone and pin number without requiring compulsion to do so and the trial was run efficiently on the basis of a number of agreed facts, including the fact of his participation in the message exchanges the subject of the two counts.

The offender's character, age, antecedents and background - s16A(m)

The offender was 42 years of age at the time of the offending and is now 44 years old. He has no criminal antecedents however given the nature of the charges the Crown submitted that his good character should attract less weight.
The Crown referred to the subjective matters outlined in the report of Dr Furst and noted his treatment having attended 17 sessions in total with Dr Mangelli. The Crown accepted Dr Furst's opinion that the offender met the criteria for anxiety disorder and an adjustment disorder with mixed depressed and anxious mood. The Crown further noted Dr Furst's opinion of the offender's anxiety disorder, low self-esteem and sensitivity to stress would place him at increased vulnerability compared to other inmates and "would likely make a custodial sentence more onerous for him."

Prospects of rehabilitation - s16A(2)(n)

The Crown noted the offender's ongoing issues surrounding low self-esteem and confusion surrounding his sexual orientation. The fact that he had positively engaged with treatment was a positive sign for his prospects of rehabilitation however the fact the offender's issues persist despite reasonably lengthy treatment and that he has not accepted responsibility for his conduct tended to weigh against leniency.
The Crown noted s16A(2AAA) of the Crimes Act provided that the court must have regard to the objective of rehabilitating the offender however this did not displace or override the requirement in s16A(1) that the sentence must be of a "severity appropriate in all the circumstances of the offence."
The Crown referred to s20(1)(b)(ii) of the Crimes Act which provides that if a court determines to sentence a Commonwealth child sex offender to imprisonment but release them on a recognizance release order, there is a presumption that they will serve some period of actual imprisonment unless there are exceptional circumstances that justify the offender being released immediately on a recognizance release order. It was further noted that s20(1)(b) of the Crimes Act provides that where a recognizance release order is imposed the court is required to attach certain conditions to the order for a child sex offender.
The Crown referred to the presumption of accumulation created by s19(5) of the Crimes Act and noted the requirement in s19(6) of the Crimes Act to impose wholly or partially concurrent sentences.
The Crown submitted that an ICO is not available as the offence in Count 1 is a prescribed sexual offence. The Crown submitted that an ICO is also not available for an offence pursuant to s474.25C for the following reasons:- 1. While s474.25C is not included in the definition of a prescribed sexual offence under s67 of the Crimes (Sentencing Procedure) Act 1999 (NSW), s66EB of the Crimes Act 1900 (NSW) is included; 2. Section 20AB of the Crimes Act makes clear that an ICO cannot be imposed where a Court is not empowered to do so in State "corresponding cases"; 3. There is no definition of "corresponding cases" in the Crimes Act. It requires the Court to compare the circumstances and characteristics of an offence against an equivalent case involving a state offender; 4. A corresponding case to the federal charge under s474.25C is one under the State offence of procuring a person under 16 for unlawful sexual activity contrary to s66EB of the Crimes Act 1900 (NSW).
The Crown noted the need for consistency in Federal sentencing and the application of relevant legal principles. In relation to the application of the principle of parity in sentencing, the Crown noted that the co-offender Allan Foy was sentenced by Judge Townsden on 1 December 2023 to an aggregate sentence of 21 months with the indicative sentences as follows:- (Equivalent to Count 1) - 15 months imprisonment (Equivalent to Count 2) - 9 months imprisonment
The Crown noted that the co-offender received discounts of 25% for his early pleas and that his Honour found the following exceptional circumstances for the purposes of s20(1)(b)(ii) of the Crimes Act:- 1. That he has borderline intellectual functioning and presents with a degree of immaturity. His cognitive deficit was, at least to some extent, causally connected to his offending behaviour; 2. The victim first informed him that he was 18 years of age (although he subsequently became aware that the victim was under 16); 3. There is no suggestion that he initially used Grindr to engage in sexual communications with minors; 4. It was the victim that first raised the possibility of a threesome; 5. There was limited evidence to otherwise suggest deviant sexual interest; 6. He entered an early plea of guilty; 7. He was remorseful; 8. The degree of vulnerability he would face in custody; 9. His lack of criminal history; and 10. His ongoing treatment in the community.
The Crown also noted the significance of the co-offender's borderline intellectual functioning as outlined by Judge Townsden which had the impact of reducing his moral culpability for the offending and therefore less weight being placed on the principle of general deterrence. It also rendered him as a more vulnerable inmate in custody.
The Crown noted that Judge Townsden assessed the objective seriousness of the equivalent of Count 1 as being "well below the mid-range for offences of this type" and the equivalent of Count 2 as being "below the mid-range for offences of this type".
Finally the Crown noted the forfeiture order sought for the offender's mobile phone pursuant to s23ZD of the Crimes Act.
Annexure A to the Crown's written submissions was a schedule of comparative cases.
In his oral submissions the Crown rehearsed his submission that the offender should be sentenced to a period of custodial imprisonment given the age of the victim and the offender's absence of remorse. Also relevant was the statutory presumption and the absence of exceptional circumstances in this case.
The Crown submitted there was an absence of features that would ameliorate any sentence. The offender's prior good character had less weight in sentencing for this type of offence and the absence of remorse was significant in that it informs his prospects of rehabilitation and risk of reoffending. The Crown submitted that the offender's lack of insight into his offending undercut the positive findings set out on his behalf.
The Crown submitted that general deterrence is not outweighed by good character and applying principles of parity it should be noted that the co-offender, Foy had a cognitive impairment which reduced his moral culpability for the offending.
In response to submissions made on behalf the offender the Crown submitted that the extent to which the victim was below 16 years was of little weight given that it would be erroneous to identify a single feature of the offending when assessing the overall objective seriousness of it. The Crown submitted that this was a relatively serious example of the offending and well above the bottom of the range.
The Crown submitted that the offender referring to the co-offender and victim as "stupid time wasters" did not assist the offender because of the jury's verdict.
The Crown submitted that the court would not make a finding that there was voluntary cessation of the offending conduct here but rather it was caused by the victim's inability to arrange transport. The evidence did not justify a finding that he voluntarily ceased the offending.
In relation to the impact of the offending on the offender's family the Crown submitted that this factor did not displace general deterrence referring to Lazarus v R [2023] NSWCCA 214 at [5].
The Crown submitted that the media coverage of the offender's arrest and court appearances were factual recitations and reports of progress in the litigation and did not constitute a mitigating factor of adverse publicity as per R v Wran [2016] NSWSC 1015 where there was very significant media attention. Rather the coverage constituted the performance of the proper undertaking of its public duties by the media.
The Crown submitted that some allowance may be made on sentence having regard to the onerous bail conditions suffered by the offender for quite some time. However the Crown submitted that this did not amount to quasi-custody as the offender was in his own home and not under direction. It was however conceded that it was onerous to some extent.
The Crown submitted that to discharge the offender without conviction was not a realistic sentencing option given the severity of the offending and the purport of the legislation.

The offender's submissions

Counsel for the offender also relied on a detailed written outline of submissions which set out the principles a trial judge is to apply following verdicts of guilty by a jury and the findings of fact relevant to issues that will inform sentence as recently articulated by Payne JA in R v Lauren Cranston [2023] NSWSC 454 at [4], which are not controversial.
In assessing the objective seriousness of the offending, the offender submitted that the terms of service of the Grindr application included that users must be at least 18 years of age. It was not a known chat room for children and it was the complainant who introduced the idea that he would do a threesome and invited the offender to join in. It was submitted that the offender made no practical attempt to remain anonymous and the offending in Count 1 occurred on a single day over a period of slightly under three hours. There was no inducement in any material sense to the complainant. The offender submitted that a significant feature in assessing objective seriousness of offences involving children is the extent to which the victim is below 16 years of age. Here given the victim was 15 years, 1 month and 18 days old would have the offence fall within the lower range of offending. It was also relevant and not without significance that the last recorded communication of the offender in the group chat were the words "stupid time wasters!!". It was submitted the offence fell at the bottom of the range of objective seriousness.
It was submitted that the court would also consider that the offender voluntarily ceased the criminal activity and this could be accepted as a significant factor in mitigation of sentence.
In respect of Count 2 counsel referred to the explanatory memorandum to the Criminal Code Amendment (Protecting Minors Online) Bill 2017. The offence criminalised a broader range of conduct preparatory to causing harm concerning sexual activity with a child.
Counsel submitted that the offending occurred over a period of 1 hour and 57 minutes on 24 April 2022. The maximum penalty of 10 years imprisonment prescribed for the offence was less than the maximum penalty prescribed for other offences brought in by the bill. It was submitted that the objective seriousness of the offending here fell within the low range for offences of its type.
Counsel made the following submissions regarding the matters outlined in s16A(2) of the Crimes Act. First it was submitted that s16A(2)(f) concerning contrition may also refer to the willingness of an offender to facilitate the course of justice. Here, that was characterised as "extensive" as the offender only required the calling of one witness in the Crown case reducing in many respects the length of the trial, relying on R v Newson (No 5) [2021] NSWSC 1661.
In respect of s16A(2)(h) the offender had cooperated with law enforcement agencies by providing police with his passwords and access codes to all the electronic devices in his possession and had provided substantial admissions in his ERISP.
Under the heading "General Deterrence", counsel referred to Walden v Hensler (1987) 163 CLR 561; (1987) HCA 54 at [577] where the Court emphasised that the conduct of the offender and the offending behaviour should be the focus of sentencing and referred to numerous classifications of offences where non-custodial sentences have been imposed. Counsel submited that pursuant to s16A(2)(k) there is a need for adequate punishment based on the offender's conduct.
Counsel further submitted that the offender had been subject to widespread publicity upon his arrest and during the court proceedings. It was submitted that it was "somewhat difficult to see the national importance of the offender's offending."
In respect of the subjective matters set out in s16A(2)(m) counsel relied on the following matters identified in the report of Dr Furst:-

He is a single male with no dependants who lives by himself in a southern Sydney suburb;
He completed a degree in Bachelor of Health Sciences at University of Western Sydney over 6 years then completed a Diploma of Education at the University of Technology;
He was a high school teacher in physical education, at a State high school before his arrest;
He had worked as a teacher since 2005;
He has a younger brother and sister who remain supportive;
His parents remained married, his mother was a teacher and his father worked in hospitality and in a car hire service;
His father was recently diagnosed with progressive supranuclear palsy which is a rare neurological condition that tends to cause problems with balance, movement, vision, speech and swallowing. The father's speech and balance have been adversely affected;
He grew up in a relatively close Catholic family with his family remaining close and supportive of him to the current time;
He has a lengthy history of low self-esteem, with particular concerns and worry about how people look at him and whether or not they are judging him;
He has volunteered for Scouting NSW and the NSW Rural Fire Service;
He was active at school and outside of school in organising activities and events, including sporting carnivals and camps, as the events coordinator, finding his anxiety was under better control when he was active in a voluntary capacity or training capacity;
His coping mechanisms diminished during the COVID-19 pandemic in 2020 and 2021 when he had to stay home most of the time;
He went through a stressful period and felt overwhelmed emotionally when there was an issue with Swimming NSW in late March or early April 2022, most likely causing signs of anxiety;
He suffered from Bell's palsy in 2011 or 2012, which left him with paralysis on the left side of his face, this further eroded his self-esteem, including losing confidence in seeking relationships/initiating relationships thereafter;
He has had two relationships with women of 6 months or less. He hasn't had a relationship since the Bell's palsy diagnosis;
He has been attracted to men from an early age but has been reluctant to express or acknowledge those feelings/sexual orientation because of his strict Catholic upbringing and because of the stigma attached to being gay;
His psychologist Dr Mangelli diagnosed the offender with major depressive disorder with comorbid generalised anxiety and social anxiety in 2023 after commencing a therapeutic relationship in May 2022, shortly after the offending.

It was submitted that the court will also take into account Dr Furst's opinions, as outlined above, and his diagnosis that the offender suffers from an adjustment disorder with mixed depressed and anxious mood.
Counsel submitted that in respect of the requirement in s16A(2)(n) concerning the offender's prospects of rehabilitation the court would accept Dr Furst's opinion as to his risk of re-offending as set out above.
Counsel further submitted that the court would take into account the onerous bail conditions with which the offender has complied following his arrest. They included daily reports to the Cronulla Police Station, a residential condition, a curfew condition and a restriction on mobile telephone and social media application use as well as strict conditions restricting engagement with a child under the age of 18 years or any activity involving children.
Counsel set out the correct approach to determining an application for discharge of the offender without conviction pursuant to s19B of the Act as outlined in Sabel v R [2014] NSWCCA 101; 242 A Crim R 49 at [216]. The section formulated a test of whether punishment was "inexpedient".
It was submitted that whilst general deterrence remains a significant consideration in the exercise of the court's discretion under s19B, in Totaan v R [2022] NSWCCA 75 at [83] the Court held there was no hierarchy of considerations pursuant to s16A(2) or that varying degrees of importance should be emphasised on each of the matters set out therein. At [130] the Court also noted "The need for general deterrence in any given case…must always be assessed by reference to the personal circumstances of the offending and which may have operated on the offender."
In considering whether to impose a conviction it was submitted the court would have regard to the decision of the Commissioner of Taxation v Baffsky (2001) 192 ALR 92; [2001] NSWCCA 332 where at [38] the Court referred to the judgment of Gleeson CJ in R v Ingrassia (1997) 41 NSWLR 447 where his Honour stated "The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court."
Counsel further submitted the court had power to dismiss the charge pursuant to s19B(1)(c) or discharge the offender without proceeding to a conviction pursuant to s19B(1)(d).
In the event that the court found that a conviction was warranted counsel referred to the fact that Count 1 fell within the definition of a "Commonwealth child sex offence" as defined within s3 of the Act. Pursuant to s20(1)(b)(ii) the conditional release of offenders after conviction for child sex offences required the court to sentence the offender to a period of imprisonment "unless the court is satisfied there are exceptional circumstances". Counsel referred to a number of authorities which inform the expression "exceptional circumstances" which is not defined in the Act. In R v Nafarette [2022] NSWDC 225 Buscombe DCJ stated that such circumstances "do not have to be unique, unprecedented or very rare, but cannot be circumstances that are regularly or routinely or normally encountered to meet the requirement of the provision. A combination of factors, in my opinion can amount to exceptional circumstances". Counsel referred to a number of sentencing judgments where exceptional circumstances have been found including R v Finch [2022] NSWDC 578 and R v French [2023] NSWDC 174. Counsel submitted the following matters should be taken into account as amounting to exceptional circumstances here:- 1. The low objective seriousness of the offending for an offence pursuant to s474.22(1) of the Criminal Code; 2. The absence of any sexual attraction or interest in children rendering the offender's risk of recidivism to be very low; 3. The absence of any prior criminal conduct or suggestion of antisocial behaviour on the offender's part; 4. The offender's contribution to the community by way of charitable events and other activities; 5. The offender's genuine contrition; 6. The availability of ongoing treatment in a positive, therapeutic environment not available in a custodial setting; 7. The extra-curial punishment offered as a result of the vilification of the offender in the media; 8. The mandate contained in s16A(2AAA) of the objective of rehabilitating the offender; 9. In contrast to most other cases the offender did not pretend to be something he was not; 10. He did not pretend to be a 17-year-old-boy in order to overcome any resistance a 14-year-old-girl might have to engaging in a sexual way with someone they have never met; 11. Further, and perhaps more importantly there was no repeated contact between the offender and the persons to whom he was chatting; 12. Most other offences of this kind involve sustained grooming, involving many separate online communications over a significant period of time; 13. The two offences were isolated, the two offences occurring on or about the same date and a search of the offender's electronic devices revealing no other offences of this kind; 14. While all grooming offences are serious, they are not all of equal seriousness; 15. The offender's mental health diagnosis and his ongoing therapeutic relationship making his prospects of rehabilitation at least good; 16. Community protection is not necessarily achieved by locking someone up; custodial sentences will often be required for each of the cases for sentence, but they are not always; 17. The offender is not experiencing a paraphilic disorder, or in other words he cannot accurately be described as a paedophile; 18. The voluntary cessation of his interaction with the 15-year-old; 19. The very strong pro-social supports; 20. This was an aberrant, but seriously criminal, blemish on an otherwise blameworthy life; 21. The personal struggle of a person confronting and acknowledging to themselves, and others, their sexual orientation in a predominantly hetero-normative society, should not be underestimated; 22. The offender's period of time on bail and the nature of the conditions are capable of being 'quasi custody' thus being counted towards immediate imprisonment, as 153 days on remand was sufficient in the matter of R v Rzeminski [2022] NSWDC 731; 23. Weighted with other factors voluntary cessation of criminal offending may be sufficiently exceptional to warrant the imposition of other than a full-time custodial sentence.

Determination

The offending in Count 1 took place by way of online communications on 24 April 2022 between the accused who was aged 42 at the time and the complainant who was 15 years of age. The communications included explicit sexual references and the exchange of explicit sexual photographs showing their genitalia. During those communications the complainant said that he was 15, and it was the complainant who raised the prospect of the accused doing a threesome and he asked the accused, "Wanna join?". Relevant to the assessment of objective seriousness of the offending is that the terms of service of the Grindr application on which the accused was communicating included that users must be at least 18 years of age. It was not a known chatroom for children and there was no inducement in any material sense to the complainant. Notwithstanding the explicit content the accused made it clear he was a bit scared once he learnt the age of the complainant. There was a relatively low level of persistence by the offender which extended over a few hours and the communications ceased by virtue of the victim's non-responsiveness. Having regard to the whole of the circumstances the objective seriousness of the offending in Count 1 fell below the mid-range for an offence pursuant to s474.26(1) of the Code and in the middle of the low range for such an offence.
The offending in Count 2 involved the offender and co-offender planning the logistics of meeting with the complainant who they knew to be a 15-year-old child in order to engage in sexual activity with him. I accept the Crown's submission that the offender intended for sexual activity to take place and there was concern on the part of the offender not to be detected for example he did not want to pick the victim up in his own car and suggested that the co-offender use Uber. I reject the offender's submission that he voluntarily ceased the communications, notwithstanding his statement, i.e., "stupid time wasters". As set out above, it was the lack of response from the victim which brought the criminal conduct to an end.
The online communications with the co-offender took place over a relatively short period of time on the same day. Having regard to all the circumstances of the offending the objective seriousness fell towards the lower end of objective seriousness for an offence pursuant to section s474.25C of the Code.
Pursuant to s16A(1) a court must impose a sentence that is of the severity appropriate in all the circumstances of the case. I take into account the following matters pursuant to s16A(2) of the Crimes Act:-

s16A(2)(a) - The nature and circumstances of the offence

The offences in Count 1 and 2 are described above. They involved online communications in an adult site known as Grindr and constituted serious offending involving a 15-year-old victim albeit in the low range of offences of their type.

s16A(2)(c) - Offending as part of a course of conduct

Whilst the offending consisted of two criminal acts of a similar character they both occurred on the same day over a relatively short period of time.

s16A(2)(d) - The personal circumstances of the victim of the offence

The victim was a 15-year-old child at the time of the offending.

s16A(2)(e) - Any loss, injury or damage resulting from the offence

Whilst there is no medical evidence as to the impact of the offending the courts have long recognised the intrinsic harm caused by child sexual offending. The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The victim impact statements read to the court by both parents of the victim here were poignant examples of the extensive and lasting harm done to victims of child sexual offending and abuse. I have taken the victim impact statements into account on sentence but not so as to increase the moral culpability of the offending conduct. I note that there was no medical evidence before the court as to the psychological impact of the offending on the victim.

s16A(2)(f) - The degree to which the offender has shown contrition for the offence

The offender pleaded not guilty and consistent with his plea has not shown contrition for the offence.

s16(2)(h) - The degree to which the offender has cooperated with law enforcement agencies in the investigation of the offence

The offender made appropriate admissions to law enforcement agencies and cooperated by providing police with his devices and passwords. There was no evidence of any other participation in child abuse activities and his trial was conducted in an expedient manner which restricted the issues to be determined by the jury.

s16A(2)(j) and (ja) - General and specific deterrence

General deterrence is important in sentencing for child sexual offences in that a clear message must be sent to like-minded members in the community that Parliament has prescribed lengthy maximum terms of imprisonment for such offending, and the courts will impose condign punishment in appropriate cases. Specific deterrence is also important in that the offender must understand that if he were to re-offend, he would be subject to increasingly severe penalties. Specific deterrence is somewhat alleviated in this case by the salutary impact the offending has had on the offender's employment and volunteer activities.

s16A(2)(m) - The character, antecedents, age, means and physical or mental condition of the person

There are significant subjective matters to be taken into account on sentence here. The offender is a 44-year-old man who has led a blameless life. He qualified as a high school teacher in physical education and has worked as a teacher since 2005. He has made a significant contribution to the community outside his teaching career by volunteering for Scouting New South Wales and New South Wales Rural Fire Service as well as being a swimming coach and administrator. He also has strong familial and community support as evidenced by the numerous testimonials tendered on his behalf. They testify that the offender is a kind and generous man of exemplary character who has excelled in all his community activities and the offending is clearly out of character for him. I accept that the offender's arrest and jury verdict have had a significant impact on him such that he is now suffering an anxiety disorder and an adjustment disorder with mixed depressed and anxious mood, and that he has undergone extensive treatment over a period of two years.

s16A(2)(n) - The offender's prospects of rehabilitation

I accept that the offender has made progress with his rehabilitation under the care of Dr Mangelli and that he has responded well to intervention and was motivated to continue psychological treatment. This is relevant to assessment of the offender's risk of recidivism and I accept Dr Furst's opinion that his risk of re-offending is likely to be low.

s16A(2)(p) - The probable effect that any sentence would have on the offender's family

I accept the evidence that the offender came from a close-knit family. I note however that he continues to have the full support of his family who are now aware of his sexual orientation.
I take into account the maximum penalties of 15 years imprisonment for Count 1 and 10 years imprisonment for Count 2. The maximum penalties indicate the seriousness with which Parliament regards such offending and are guideposts in the sentencing process.
I have also taken into account the very strong subjective case called on behalf of the offender. He is obviously a man of previous good character, and this was aberrant conduct on his part. I take into account that no other indicia of an interest in child abuse material was located on any device owned by the offender. He is entitled to have taken into account his previous blameless life, his significant contribution to his local community and the impact this offending has and will have on his employment prospects and ability to participate in volunteer activities.
The offender has sought mitigation of his sentence based on the media coverage of the proceedings as evidenced in Exhibit 4. It is not in dispute that his successful career as a teacher and good standing in the community have been irrevocably lost and the consequences for him are clearly devastating. However the media reporting of the offender's arrest and the progress of his proceedings are not the unexpected result of something that is not reasonably associated with the fact of his conviction and sentence, rather they flow from the due administration of the judicial process and do not in this case warrant an amelioration of the offender's sentence as extra curial punishment - see for example Kearsley v R [2017] NSWCCA 28; 265 A Crim R 233 at [76].
The principle of parity in sentencing is applicable here. I have taken the remarks on sentence of Judge Townsden in sentencing the co-offender Foy into account in arriving at an appropriate sentence here. The principle is one of equal justice - like cases must be treated alike and material differences taken into account - see Green v The Queen (2011) 244 CLR 462; [2011] HCA 49. As the co-offender pleaded guilty he was entitled to a 25% utilitarian discount on sentence and he also suffered a borderline intellectual functioning with cognitive deficit which his Honour found was to some extent causally connected to his offending behaviour. Here, the offender who has led a blameless life to date has made an outstanding contribution to his community both through his career as a teacher and his volunteering activities in the community. He has also advanced his rehabilitation in the community. These significant differences must be taken into account.
Section 17A(1) provides that a court shall not impose a sentence of imprisonment for a federal offence unless, after having considered all of the available sentences, it is satisfied that no other sentence is appropriate in all the circumstances of the case. Having considered all of the available sentences I am satisfied that a sentence of imprisonment is appropriate in respect of both Counts 1 and 2. In so finding I reject the offender's submission that no conviction should be recorded for these two serious offences. The sentences that I would impose are as follows:- Count 1 - 2 years imprisonment. Count 2 - 12 months imprisonment.
The principle of totality was described by Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27] as follows:- "In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
Section 19 of the Crimes Act provides the following under the heading "Additional requirements for Commonwealth child sex offences":- "(5) An order must not have the effect that the term of imprisonment imposed on a person for a Commonwealth child sex offence be served partly cumulatively, or concurrently, with an uncompleted term of imprisonment that is, or has been, imposed on the person for: (a) another Commonwealth child sex offence; or (b) a State or Territory registrable child sex offence. (6) Subsection (5) does not apply if the court is satisfied that imposing the sentence in a different manner would still result in sentences that are of the severity appropriate in all the circumstances. (7) If the court imposes a term of imprisonment other than in accordance with subsection (5), the court must: (a) state its reasons for imposing a sentence in that manner; and (b) cause the reasons to be entered in the records of the court."
As noted above, Count 1 is a prescribed sexual offence to which s19(5) would apply. Count 2 does not fall within that definition and whilst, as submitted by the Crown, Count 2 may be a corresponding offence to a New South Wales State offence of procuring a person under 16 for unlawful sexual activity contrary to s66EB of the Crimes Act 1900 (NSW), I am not here contemplating the imposition of an ICO under the Crimes (Sentencing Procedure) Act 1999 (NSW).
In assessing the totality of the criminality of both offences I take into account they occurred on the same day at more or less the same time regarding the same subject matter. The fact that there are discrete offences, however warrants that the sentences be served partially concurrently. I am satisfied that in so finding the sentence will be of a severity appropriate in all of the circumstances.
In arriving at the sentence to be imposed I have also had regard to s16A(2AAA) and the objective of rehabilitating the offender as set out in that section.
I have also had regard to s20(1)(b)(ii) of the Crimes Act, noting that Count 1 is a prescribed sexual offence. I am satisfied in this case that there are exceptional circumstances made out by virtue of the combination of the following factors:- 1. The low objective seriousness of each of the offences, which were isolated. 2. The absence of any paraphilia. 3. My assessment that the offender's risk of recidivism is low. 4. The offender's previous blameless life. 5. The offender's contribution to the community. 6. The offender's response to rehabilitation and the mandate contained in s16A(2AAA) of the objective of rehabilitating the offender. 7. The offender's very strong prosocial support in the community. 8. The fact that this was an aberrant, but seriously criminal, blemish on an otherwise blameworthy life. 9. The offender's compliance with onerous bail conditions over a lengthy period of time and prior to sentence. 10. The offender's psychological diagnoses, which would make a prison sentence unduly onerous for him - see DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.
Having found exceptional circumstances, I propose to sentence the offender to a period of imprisonment for 2 years and 3 months but to release him immediately on a recognizance release order, self in the sum of $500 with no surety to be of good behaviour for a period of 2 years and 3 months on the condition that he continue counselling under Dr Mangelli for a period to be determined by Dr Mangelli, and treatment by his General Practitioner.

Orders

I make the following orders:- 1. You are convicted of the following offences: 1. Count 1 - On or about 24 April 2022 at Cronulla in the State of New South Wales and elsewhere, used a carriage service to transmit a communication to a recipient (TA), being someone who is under 16 years of age, with the intention of procuring the recipient to engage in sexual activity with himself. 2. Count 2 - On or about 24 April 2022, at Cronulla in the State of New South Wales and elsewhere, did an act in preparation for engaging in, or planning to engage in, sexual activity with a person under 16 years of age (TA), and the act was done using a carriage service. 1. I sentence you to a term of imprisonment of 2 years in respect of Count 1 commencing today and a term of imprisonment of 12 months in respect of Count 2 to commence on 10 August 2025. The total term will be a period of 2 years and 3 months. 2. I order a recognizance release order pursuant to s20(1)(b) of the Crimes Act 1914 (Cth) for your immediate release upon entering into recognizance without surety self in the sum of $500 on the following conditions: 1. That you be of good behaviour for a period of 2 years and 3 months. 2. That you accept supervision by a probation officer appointed by Community Corrections. 3. That you follow all reasonable directions of your probation officer, and not travel interstate or overseas without the written permission of your probation officer. 4. That you will continue counselling with Dr Mangelli for a period specified by Dr Mangelli, and treatment by your General Practitioner. 1. I direct you to report to Sutherland Community Corrections within 7 days of today. You must understand that this is a gaol sentence that you are required to serve in the community. If you breach any conditions that are attached to the order, without reasonable cause or excuse, consequences will follow that may include you serving the balance of the term in custody. 2. I make the forfeiture order of the offender's mobile phone pursuant to s23ZD of the Crimes Act 1914 (Cth).

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: 10 May 2024

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