District Court New South Wales Medium Neutral Citation: R v Nguyen [2016] NSWDC 395 Hearing dates: 11 November 2016 Date of orders: 11 November 2016 Decision date: 11 November 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is referred for assessment as to his suitability to serve his sentence by means of an Intensive Corrections Order Catchwords: CRIMINAL LAW – Sentence- Use carriage service to groom a person under the age of 16 years – Police assumed online identity of 13 year old girl – No young person harmed Legislation Cited: Crimes Act Cases Cited: R v De Simoni. (1981) 147 CLR 383 Category: Sentence Parties: The Crown William Nguyen Representation: Counsel: S Schaudin - Offender Solicitors: Director of Public Prosecutions File Number(s): 2014/361974 Judgment 1. HIS HONOUR: On 8 September 2014 the offender William Nguyen accessed an Internet site known as TeenChat. His profile correctly identified himself as a male over the age of 24. In the names of people available to chat he clicked on a username I will describe in this publically available judgement as an assumed on line identity (AOL). A conversation ensued. When the offender was asked for his "ASL", an abbreviation for age, sex, and location, he lied about his age saying that he was 19. After a brief exchange on the TeenChat site the conversation continued using Skype. 2. Over the next three months the offender and AOL had a number of conversations using Skype. The offender was told that AOL was 13 year old girl on many occasions. He persisted with the lie about his age and sent photographs to her which were purportedly of him but as matters turned out, were not. Over the course of the conversations, the offender would often discuss sexual matters instructing AOL on how to masturbate, asking what she had done with a boy, asking whether she had in fact masturbated as he suggested she should and describing what would happen should the two of them ever meet up, telling her that they could have penile vaginal intercourse after she performed what he described as a blow job on him. 3. Unfortunately for the offender but fortunately for the community there was no real AOL speaking to him, instead that identity was assumed by a number of police officers who were endeavouring to catch people like the offender. 4. The offender pleaded not guilty to one charge of using a carriage service to groom a person under the age of 16 years of age. That required the Crown to prove that the offender used a carriage service to transmit a communication to another person, which he did, with the intention of making it easier to encourage and entice that person to engage in sexual activity with him, he at the time being over the age of 18. Once the Crown proved those matters, the burden of proof was on the accused on the balance of probabilities to prove that he believed the person to whom he was chatting to be at least 16 years of age. The offender must have failed to prove that matter as he was found guilty by a jury. It is now for me to sentence in accordance with the jury's verdict. 5. Perhaps the first thing to notice is the width of the expression "sexual activity".. That term would cover vastly different forms of behaviour. A person who can hear another person masturbating over a Skype audio call is engaging in sexual activity, as is a person who meets up with another person and has penile vaginal sexual intercourse with her. This case starkly prevents a difficulty with sentencing law. It has always been the law that matters of aggravation must be proved beyond reasonable doubt by the prosecution and matters of mitigation must be proved by the offender on the balance of probabilities. Who bears the burden of proving of what form of sexual activity was and was not going to take place? Does the Crown have to prove beyond reasonable doubt that what was going to occur was something more than the accused listening to AOL masturbating, or does the accused have to prove on the balance of probabilities that what was going to happen was less serious than meeting up for the purposes of penile vaginal intercourse? Fortunately the evidence in this case is fairly clear and so the factual basis on which I will sentence the offender has not been determined on the basis of who has got to prove what and to what standard. 6. As I mentioned earlier the offender sent photographs to AOL which he said were of him, but which were not. There was a significant and obvious difference in the appearance of the person in the photographs and the offender himself. This tends to suggest that it was most unlikely that the offender was ever going to meet up with AOL. Had he done so he would have immediately been exposed as a fraud, thus any sexual activity which the offender intended to encourage and entice AOL to engage in could only have been sexual activity occurring remotely over an audio, or much more likely, video call using the Internet. This is consistent with the offender's repeated enquiry of AOL whether her computer was equipped with a camera. It would seem the offender's ultimate intention was to have AOL perform sexual acts upon herself while he watched from a remote location. It is on that basis that I will sentence the offender. 7. There are various ways of examining the objective gravity of that conduct. One way, which was raised in argument before me during these sentencing proceedings, was to look at what offence would have been committed had the offender watched AOL masturbate, not over a carriage service but in person. The offence he would have committed in those circumstances is under s 61N of the State Crimes Act, an offence of inciting an act of indecency with a person under the age of 16. The maximum penalty for the offence is two years imprisonment. On the other hand, the circumstance that it was the offender's intention to make it easier to procure that form of sexual activity and that he used a carriage service to do so cannot be ignored. As the Crown pointed out in her submissions to me, the use of the carriage service allows a person to be anonymous. It allowed Mr Nguyen to hide his identity, it allowed him to pretend that he was someone who he clearly believed was more likely to be able to persuade a young girl to masturbate over the Internet than would have been the case if he used his true identity. 8. Another aspect of the use of the carriage service which cannot be ignored in assessing the objective gravity of the offence is that the Internet has brought with it an enormous scope for offences of this type to be committed. It is not to be ignored that the Commonwealth parliament has responded to the challenges the Internet has produced by creating this offence, which carries a maximum of 12 years imprisonment. It is important of course not to breach the rule in R v De Simoni. (1981) 147 CLR 383. Had the offender intended to procure that act of sexual activity he would have faced a maximum penalty of 15 years imprisonment. It must be remembered this is an offence of grooming. 9. The offender is a man of otherwise good character. As is commonly the case these days the Crown makes a submission that for this type of offence prior good character is of less weight than it would otherwise have been. In truth the absence of prior convictions remains an important aspect of every sentencing decision, if only because it says something about the underlying character of an offender, in particular as regards a need for personal deterrence and the prospects for rehabilitation. If the Crown submission is intended to suggest that general deterrence is of prime importance for an offence of this type then I would agree, but I do not agree that prior good character has less weight in this sentencing exercise than it does in every other sentencing exercise for the reasons I have indicated. 10. The offender is now 27 years of age. He lives with his mother, his father died when he was very young. He has a much older sister who lives in Newcastle. His mother, after the death of her husband, the offender's father, had to work hard to support the family. In a psychological report the offender expresses his high regard for his mother and her commitment to raising him and his sister alone. The offender is of Vietnamese background, his mother came to Australia from Vietnam. Her English is barely adequate and her friends are mostly Vietnamese. In contrast, the offender regards himself as Australian, he says he has no attachment to Vietnam. 11. The offender completed high school and is currently studying, although two particular challenges have presented themselves in that regard. The first is these criminal proceedings. The offender pleaded not guilty to these charges. He faced a trial in 2015 which resulted in a hung jury. He faced another trial in 2016, over which I presided, and which resulted in a guilty verdict, and so he has been unable to attend to his studies when he is otherwise engaged in trials and associated proceedings relating to his offending. The other challenge faced by the accused concerns a diagnosis made when he was in year 9 of a genetic disease, muscular dystrophy. I will return to the consequences for and of that disease later in more detail, but it would be a significant factor for any one in year 9 to be diagnosed with a genetic disease of that kind. 12. The offender is employed and references regarding that matter were tendered today. It seems that his social life is based largely around his work friends, in other regards he appears to have been socially isolated and lonely. He did have a girlfriend but she moved to Queensland and he has not formed any romantic attachment since then. He is currently depressed and anxious, which is not uncommon in people facing sentence where a sentence of fulltime custody is a real possibility. 13. Medical reports were tendered concerning the offender's genetic condition, there is a long list of ways in which the disorder can manifest itself. I will list them, voluntary muscle failure; cardiac defects; cataracts; testicular atrophy; respiratory impairment; adverse reactions to anaesthesia; difficulty swallowing, dysphasia, and other gastrointestinal tract involvement; intellectual and psychiatric disorders including intellectual delay; an excessive output of insulin; abnormal carbohydrate metabolism; and excessive sleepiness with consequent sleep apnoea. Fortunately it appears thus far the offender's symptoms are limited to muscle stiffness and excessive sleepiness, but there remains the possibility of other symptoms developing in the future. The Crown pointed out that the last medical report relied on by the offender is dated 2010. One might have expected if there was medical evidence suggesting the offender's time in custody would be harder because of something beyond muscle stiffness and excessive sleepiness, that would have been provided to me. I am not satisfied therefore that the offender's muscular dystrophy will mean he would serve any sentence of imprisonment more harshly than would otherwise be the case. 14. It must be remembered the offender pleaded not guilty to these offences. He is not to be punished for doing so but it cannot be said that his contrition is reflected by an acceptance of the wrong doing of his conduct. To the contrary he told the author of the pre-sentence report the same story he told to the jury in this trial, an explanation which was clearly rejected. There is no evidence, I regret to say, of contrition. That is not to say the offender was not cooperative with the authorities, he was cooperative. Firstly, with the police when he provided the passwords to his various electronic devices enabling a complete search to be made of them, and secondly, in the way the trial was conducted. The trial, with cooperation of the offender, took a very short time due to the offender not objecting to the Crown case being put before the jury in a very truncated form, enabling the real issue to be the focus of the proceedings. 15. I mentioned before some aspects of the way in which I assess the objective gravity of this offence, there are other matters I should mention as well. Firstly, that there was no young girl harmed. Of course it almost goes without saying but I will say it anyway, that the offender was not to know that. By their verdict the jury clearly accepts, as do I, that the offender thought he was speaking with a young girl and did what he did with the intention of making it easier to procure her to masturbate while he watched over the Internet. The fact is there was no young girl harmed. In some of the comparative cases the Crown has provided there was harmed caused. 16. It is also to be noted that this was not, as Mr Schaudin described it, an unrelenting pursuit by the offender of a person he believed to be a young girl. That is not to say the contact between them was sporadic but there are many cases where contact from an offender is much more regular. It is also to be noted that on occasions, police pretending to be a 13 year old girl contacted the offender. That does mitigate the objective gravity of this offence, albeit to a slight degree. 17. The Crown provided cases which were of considerable assistance to me. Of course, no two cases are identical but judges are able to take into account differences between the cases before them and other cases which have been dealt with, particularly by superior courts, in determining an appropriate sentence to impose on a particular offender for a particular offence. 18. In one comparative case, at least, a sentence of other than fulltime custody was imposed but as the Crown pointed out that involved an offender who was deeply remorseful for his conduct, a factor which I have noted does not apply in the present case. On the other hand, that offence was objectively more serious. There was a real victim of that offence and there was, what I would describe as an unrelenting pursuit of her by the offender. 19. I use that case as an illustration as to the way in which I found the comparative cases useful identifying differences between those cases and the present as I attempt to determine the appropriate sentence in the present case. 20. The Crown says that nothing less than a fulltime custodial sentence should be imposed, relying, of course, on the idea that general deterrence is of prime importance in the present case, a matter which I have already said I agree with. I am satisfied that a custodial sentence is required. I am satisfied, however, that he is likely to be in imprisonment for two years or less. I have determined that in the circumstances of this case an Intensive Correction Order would be the most appropriate outcome. Of course, an ICO is much more lenient that fulltime custody. Fulltime custody is a harsh sentence and often harsh sentences are required. An ICO, whilst carrying with it restrictions on an offender's liberty, allows the offender to live at home, in the offender's case with his mother, rather than at a gaol full of often violent and disturbed men. I recognise the leniency of an ICO but I consider that it would be the most appropriate outcome in the present case. It does contain with it an element of general deterrence, not as much as the Crown would like of course, but the impact of an ICO on others who may be tempted to act in this way cannot be ignored. 21. I will therefore adjourn the matter to a date to be discussed with counsel and order the offender's suitability to serve his sentence by means of an Intensive Correction Order be assessed. 22. ADJOURNED TO FRIDAY 27 JANUARY 2017 ********** 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: 22 February 2017