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District Court 21 July 2023

R v Tan (No 3)

[2023] NSWDC 298

Sexual offencesPublic order & justice offences
CRIMINAL LAW SENTENCING

Citation: R v Tan (No 3) [2023] NSWDC 298
Court: District Court of New South Wales
Date: 21 July 2023
Judge: Abadee DCJ

Background

The offender, a 25-year-old man, had been in an online sexual relationship with a victim he believed was aged 16 turning 17. The victim was in fact 12 years old. In late June and early July 2021, the offender possessed intimate videos and photographs of the victim that she had sent to him during the relationship.

When the victim stopped communicating with him, the offender sent a series of threatening Instagram messages. He threatened to print her intimate images alongside her face on posters and pamphlets, and to distribute them at her school gate. Over the following days he conducted internet searches about the school and visited its website multiple times. He was arrested on 15 July 2021, and police found 24 intimate images and videos of the victim on his phone.

The offender had earlier been tried in the same court on five counts relating to sexual intercourse with a child and production or possession of child abuse material. He was acquitted of all five counts (see R v Tan (No 2) [2023] NSWDC 228). The sentencing proceedings dealt with a separate charge to which he had pleaded guilty on 8 September 2022: threatening to distribute intimate images of the victim without her consent, contrary to s 91R(2) of the Crimes Act 1900 (NSW).

  • What constitutes the objective seriousness of an offence under s 91R(2) of the Crimes Act 1900, given the limited sentencing precedent for this provision?
  • What weight should be given to the offender's honest and reasonable belief that the victim was aged over 16, when she was in fact 12?
  • How should time spent in pre-sentence custody be treated where that custody arose substantially from a combination of charges, most of which resulted in acquittal?
  • Whether the sentencing threshold for imprisonment under s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) was crossed, and if not, what the appropriate alternative order was.

Decision

His Honour identified the absence of Court of Criminal Appeal guidance on s 91R(2) sentencing and only four unpublished District Court decisions on the provision. He therefore identified the relevant objective factors himself: the relationship between offender and victim, the nature and scope of the threatened conduct, the number of threats made, their likely effect on the victim, the offender's motive, and the degree of planning involved. His Honour found the offending was objectively serious. The threats were explicit and targeted, they named the victim's school as the distribution point, they were made over two days, and they were followed by internet searches confirming the offender's intent.

Aggravating features included the age differential, the victim's vulnerability (which the offender was aware of), and the fact that the offender exploited her emotional attachment to him for his own sexual gratification. His Honour accepted that the offender genuinely and reasonably believed the victim was 16 turning 17 at the time, a finding carried over from the verdict reasons. That belief moderated the full weight of the age differential as an aggravating factor, but did not eliminate it: the offender knew she was a school student, knew she was emotionally troubled, and chose to weaponise intimate images she had sent him.

On the custody question, His Honour acknowledged that the charges on which the offender was acquitted and the charge to which he pleaded guilty arose from a common substratum of facts. The combination of all charges had caused the offender to be detained for a significant period. His Honour treated that period of custody as a relevant consideration moderating the need for specific deterrence, particularly given the offender's age and the fact that the custody coincided with COVID-19 pandemic restrictions.

Weighing the guilty plea, first-offender status, good character, age, rehabilitation prospects, and the moderating effect of pre-sentence custody, His Honour was not persuaded, albeit not without reservation, that the threshold for a sentence of imprisonment under s 5(1) of the CSP Act had been crossed. A community corrections order of 10 months under s 8 of the CSP Act was considered appropriate, with the length reflecting the time already spent in custody. His Honour indicated an inclination to add a community service work condition but noted that a sentencing assessment report was required before that condition could be imposed. The proceedings were adjourned for that report and further submissions.

Orders Made

  • A community corrections order of 10 months under s 8 of the CSP Act was indicated as appropriate, with standard conditions applying.
  • His Honour expressed an inclination to add a community service work condition, subject to a sentencing assessment report confirming suitability under s 89(4) of the CSP Act.
  • A rehabilitation condition was considered unlikely to be appropriate given the nature of the offending.
  • The sentencing proceedings were adjourned pending the sentencing assessment report, with the parties to have the opportunity to make further submissions.
  • Bail was continued on its existing terms.

Key Takeaways

  • Where sentencing authority on a provision is sparse, the District Court will identify relevant objective factors from first principles, informed by the nature of the offending and the purposes of sentencing under the CSP Act.
  • An offender's honest and reasonable belief about a victim's age is a relevant mitigating consideration in sentencing, but does not neutralise the significance of other aggravating features such as the victim's known vulnerability and the offender's exploitative conduct.
  • Time spent in pre-sentence custody arising from a combination of charges, where most charges resulted in acquittal, can still be treated as moderating the need for specific deterrence when the charges arose from a substantially common factual substratum.
  • The District Court confirmed that the s 5(1) imprisonment threshold under the CSP Act requires a sentencing court to be satisfied that no other penalty is appropriate before imposing a custodial sentence; the threshold was not crossed here despite the objective seriousness of the offence.
  • A community corrections order may appropriately reflect pre-sentence custody through a reduced period, even where the custody was referable to a broader set of charges rather than the index offence alone.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66C, 91H, 91R
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 8, 9, 10, 21A, 25D, 89

Cases
- R v Tan (No 2) [2023] NSWDC 228 (verdict reasons in the same proceedings)
- Muldrock v The Queen (2011) 244 CLR 120
- DPP (Cth) v De La Rosa (2010) 71 NSWLR 1