AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 11 November 2016

R v Nguyen

[2016] NSWDC 395

Sexual offences
CRIMINAL LAW SENTENCE NO YOUNG PERSON HARMED

Citation: R v Nguyen [2016] NSWDC 395
Court: District Court of New South Wales
Date: 11 November 2016
Judge: Berman SC DCJ

Background

The offender, a man then aged in his mid-twenties, accessed a teen chat website in September 2014 and began online conversations with what he believed was a 13-year-old girl. The conversations moved to Skype and continued over three months. Throughout, the offender lied about his own age and sent photographs that were not actually of him.

During these exchanges, the offender repeatedly directed sexual conversation at the supposed minor, including instructions on masturbation and descriptions of intended sexual activity. He also persistently asked whether her computer had a camera, which the court found significant in understanding his ultimate intentions.

There was no real victim. The online identity had been created and maintained by police officers conducting an undercover operation. The offender pleaded not guilty and was convicted by a jury after two trials, the first having resulted in a hung jury.

  • Whether the Crown had proved the elements of using a carriage service to groom a person under 16 years of age, and in particular whether the offender had failed to establish on the balance of probabilities that he believed the person to be at least 16.
  • What form of intended sexual activity the sentencing court should find as the factual basis for sentence, given the breadth of the term "sexual activity" in the offence.
  • How to assess the objective seriousness of the offending where the intended activity was remote (watching the supposed victim masturbate via video call) rather than in-person contact.
  • Whether an Intensive Correction Order (ICO) was appropriate given the Crown's submission that fulltime custody was required for general deterrence.

Decision

The court accepted the jury's verdict that the offender had not displaced the presumption against him. The central sentencing question became what form of sexual activity the offender had actually intended to procure. The court noted the term "sexual activity" covers a wide spectrum, from remote audio or video acts through to physical contact, and acknowledged this created a genuine difficulty in identifying who bears the burden of proving the intended form.

On the facts, however, the court did not need to resolve that burden question. The offender had sent photographs that were plainly not of him, meaning any in-person meeting would have immediately exposed his deception. The court was satisfied that his genuine intention was to have the supposed victim perform sexual acts on herself via video call while he watched remotely, and sentenced on that basis.

The court assessed objective gravity by reference to the equivalent in-person offence, which would have been inciting an act of indecency with a person under 16 under s 61N of the Crimes Act, carrying a maximum of two years imprisonment. However, the court also recognised that the carriage service element adds distinct features: it enabled anonymity, allowed the offender to conceal his true identity, and reflects the significant policy concern that prompted the Commonwealth to create this offence with a 12-year maximum. The rule in R v De Simoni was observed, with the court careful not to treat the offending as equivalent to the more serious offence of procuring sexual activity.

On personal circumstances, the court gave weight to the offender's otherwise good character, his diagnosis with muscular dystrophy (which would affect his experience of any custodial sentence), his social isolation and depression, and his supportive home environment. The court disagreed with the Crown's submission that good character carries less weight in this class of offence, maintaining that its relevance to personal deterrence and rehabilitation prospects applies in every sentencing exercise. The court accepted that general deterrence was of prime importance but concluded that an ICO was the most appropriate outcome, noting it was a more lenient outcome than fulltime custody but that the restrictions on liberty it imposed retained some deterrent effect.

Orders Made

  • The matter was adjourned to 27 January 2017 for an assessment of the offender's suitability to serve his sentence by way of an Intensive Correction Order.

Key Takeaways

  • The District Court confirmed that where an online grooming offence is charged, the Crown must prove beyond reasonable doubt any matters of aggravation, while the accused bears the balance of probabilities to prove a belief that the person was at least 16.
  • A conviction under the carriage service grooming provision does not require a real victim: an undercover police officer assuming the identity of a minor is sufficient to ground the offence, and the absence of an actual young person is relevant to sentence rather than liability.
  • In assessing objective gravity, the court looked to the equivalent in-person offence under state law as a useful comparator, while also accounting for the aggravating features unique to carriage service offending, including anonymity and the broad reach the internet enables.
  • The court rejected the proposition that prior good character automatically carries reduced weight in grooming offences, holding that its bearing on personal deterrence and rehabilitation remains relevant in every sentencing exercise.
  • Notwithstanding the Crown's submission for fulltime custody, an ICO was available where the term of imprisonment determined was two years or less and the offender's personal circumstances, including a serious medical condition and a supportive home environment, weighed against fulltime incarceration.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61N (inciting an act of indecency with a person under 16)
- Commonwealth legislation creating the offence of using a carriage service to groom a person under 16 (maximum penalty: 12 years imprisonment)

Cases
- R v De Simoni (1981) 147 CLR 383 (the rule that an offender cannot be sentenced on the basis of facts that would constitute a more serious offence of which they were not convicted)