R v Cui

R v Cui - [2023] NSWDC 422 - NSWDC 2023 case summary — Zoe

[6]

Principles relevant sentencing for online child exploitation offences

The applicable principles to which regard should be had when sentencing for online child exploitation offences such as are before me include: 1. General deterrence which is significant sentencing consideration as there is paramount public interest in promoting the protection of children. 2. Such offences are becoming increasingly prevalent with the advent of the internet as a means of allowing predators to use the internet anonymously to forge relationships with children as a first step to luring them for sexual abuse. 3. A sentence of immediate imprisonment will ordinarily be required for such offences. 4. There is an intrinsic harm caused by sexual offences involving children. 5. Evidence of prior good character will often have limited weight in such matters. 6. Whilst the presumption of harm does not arise where there is no victim, for example, where the recipient of the communications is, as in this case, an undercover police officer, that does not lessen the seriousness of the offending, as the Court noted in R v Gajjar [2008] VSCA 268 - 192 A Crim R 76 after referring to several authorities: "An offender's conduct was to be regarded as no less morally reprehensible merely because the person to whom the communication was made was, unbeknown to him, an undercover police officer." 1. Factors that have been considered relevant in assessing the seriousness of offending involving the online grooming of children include; 1. The number, length and type of conversations between the offender and the victim. 2. The frequency of conversations and the level of persistence shown by the offender. 3. The nature of any sexual material communicated. 4. The extent to which the intent to future activity which is exposed and developed. 5. The nature of the sexual activity intended. 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. Any age or power differential between the offender and the victim. 9. The nature of any prior relationship between the offender and the victim. 10. The offender's level of awareness and deliberateness in the communications, and, 11. The planning and sophistication involved in the offence, including any steps taken by the offender to protect his or her anonymity.

[12]

Objective Seriousness / Moral Culpability

The Crown emphasises that the fact that the "victim" in the matter was not a real child does not make the offence any less morally reprehensible nor does it amount to a mitigating factor, and reminds me that s 474.20.9A requires certain mandatory factors to be taken into account of which only the age (13) and maturity of the victim, or intended victim of the offence, is one.
On behalf of the offender it is submitted that the offence falls at the lower end of the range of objective seriousness and the offender's moral culpability is not high.
Assessing the objective seriousness of offences such as this is a separate but related task to assessing the moral culpability of an offender -
DS v R, DM v R [2022] NSWCCA 156 at [63] - [66]. The assessment of an offender's moral culpability is not a component of the assessment of the objective gravity of the offence but an assessment of an offender's moral culpability includes consideration of the objective seriousness of the offence, together with the offender's personal circumstances.
It has been said that in some cases an offender's mental impairment can affect both the moral culpability of the offender as well as the objective seriousness of the offence. But while a mental impairment may affect an assessment of objective seriousness it does not necessarily do so even if there is a causal connection between the impairment and the offences, DS v R [2022] NSWCCA 110, Patterson v R [2021] NSWCCA 273. Quite where the line is drawn to identify the necessary nexus so as to allow mental impairment to be relevant to the consideration of objective seriousness is to my mind a little obscure.
I accept the offender's submission that at the relevant time he suffered from a major depressive illness, currently in remission. I shall return to this topic later in these reasons however I have concluded that there is a connection between the offender's mental health condition at the time of the offending and the offending that is relevant to both the objective seriousness of the offences, as well as the moral culpability of the offender, together with his prospects of rehabilitation and re-offending. To put it simply I do not think the offending would have occurred but for the offender's mental health.
When assessing the nature and circumstances of the offence, I should record that I accept the offender's submission that his motivation in engaging in the offending conversation, and his disregard for the age of the victim was that they were but manifestations of fantasies and never intended by him to be acted upon.
Both the medical evidence and the sworn evidence of the offender supports this contention.
Accordingly in relation to the nature and circumstances of the offence I find that it falls towards the lower end of the range of objective seriousness and that the offender's moral culpability is not high, and that his motivation was to satisfy some fantasy rather than to take the sexual encounters further. As I have said I do think that there is at least some connection between the offending and the offender's mental health condition if for no other reason that I am convinced that, if not for the mental health condition, the offending would not have occurred.
I appreciate that the offence is complete simply by the conversations and with the offender having an intention to continue the sexualised conversations with a person he understood was 13 years old. Nonetheless I think his moral culpability in light of his mental health diagnosis which is to my mind extremely relevant, and as I will come to equally important when considering his prospects of rehabilitation and re-offending.
I conclude that the objective seriousness of this offence is well towards the lower end of the scale.

[22]

Why did the Offender offend?

In light of the offender's otherwise exemplary character and my finding that the offending was entirely anomalous with that character. This question has to be asked and answered.
I make the following findings: 1. The offender engaged in sexual chats online with strangers due to intimacy issues with his wife. 2. Save for the offences that are before me (and perhaps one when he posed as a woman), the balance of the offender's online chats for a period of more than two years were always with people he understood to be adult women. 3. At the time of the offending chats the offender was simultaneously messaging adult women. 4. The offender did not have possession of any other child abuse material such as pornographic images of children. 5. The offender was not looking for relationships or to meet up with people, rather he was engaging in flirtations and sexually explicit conversations in some form of fantasy world. 6. The offender did not intend to act on his conversations, the sexualised conversations were the end in and of themselves. 7. The conduct was largely, if not entirely, a consequence of the offender's mental health condition at the time and was some form of attempt, (albeit subconsciously) to self-medicate for those problems. I also suspect that there is an element of addiction in this sort of activity and whilst there is no particular evidence before me I think having regard to all of the evidence I ought to infer that the offender had become addicted to the short‑term thrills that might be obtained from online sexual chats. 8. Conversations with both of the AOI's were ceased by the offender just as they might have appeared to be on the precipice of an in person meeting - again this underlines my finding that he never had any intention of meeting up with the victims.
When the offender was arrested and police seized all the electronic equipment from his home namely his laptop, two phones and a USB, no child abuse material (save for the instant offences), or any material of interest was found.
Dr Pulley who has treated the offender identifies the absence of any evidence of child pornography material on the offender's devices is something which supports the offender's explanation of no sexual interest or fantasies about children.
Dr Pulley says that this absence "would be surprising if he had been using the internet to satisfy his need for gratification of paedophilic fantasy."
I accept the sexualised conversations were the end, in and of themselves rather than a means to procure further sexual conduct with the other party to the conversation and this to my mind reduces the seriousness of the offence.
I also accept that the offender was engaging in chat room conversations to fill a gap in his relationship and was attempting to seek to address (by some form of self-medication) the symptoms of his depressive illness. Further I accept that the offender did not intend to meet or have any type of physical relationship with the AOI's and that the chats were manifestations of his fantasies.
Ms Mathur, senior counsel for the offender who has assisted me with extremely comprehensive and helpful submissions puts it this way. "The evidence in this case argues powerfully for a finding that this case falls within the category of cases where both the objective seriousness for the offending and moral culpability of the offender are reduced and the offences fall towards the lower end of the scale for this type of offending. Further the accumulative effect of the nature of the offences themselves, coupled with the nexus between the offender's major depressive illness and the offending are highly relevant."
I find that the offending was an aberration caused by the peculiar circumstances that the offender found himself in at the time in the context of the COVID lockdowns together with his mental health issues. I find that the conduct was entirely out of character and therefore that it is highly unlikely that it will reoccur especially in light of the offender's commitment to ongoing treatment to which I will come.

[23]

Specific deterrence: s 16A(2)(j)

It is well established that an offender's mental health at the time of offending may have the consequence that he is not an appropriate vehicle for general deterrence resulting in a reduction in the sentence that would otherwise have been imposed. As I have said, I have taken into account the offender's mental health when considering the question of general deterrence.
As to specific deterrence, in my judgment this has been met in this case when consideration is given to what the offender experienced following his arrest, namely: 1. The offender went from having no experience with the criminal justice system to spending 65 days on remand in what he describes and what I accept, was a terrifying and devastating experience. 2. Whilst in custody he was racially bullied, felt intimidated, coerced to hand over his meals, slept in a cell with cockroach infestation and was exposed to the issue of illicit drugs for the first time in his life. 3. He deteriorated physically and mentally because during the, what might be thought to be the short period of 65 days, there were two periods in which he spent in solitary confinement. They being respectively 14 days and ten days of COVID isolation, both exposing him to complete confinement to his cell with no fresh air. 4. He was held in protective custody until released on bail as a result of the nature of his offending. 5. Upon his release the offender spent eight months subject to extremely strict bail conditions, including a curfew which has had a significant impact on his life and the lives of his family members. Significantly he was prevented from finding work due to restrictions on accessing the internet. 6. Specific deterrence also requires a close consideration of whether it is likely that an offender will reoffend without further punishment (R v Michael Nahlous [2013] NSWCCA 90 at [89]).
Having regard to my assessment in respect of rehabilitation and likelihood of recidivism which are very high and very low respectively this further attenuates the need for specific deterrence in this case.

[24]

Rehabilitation: s 16A(2)

As I have said in my opinion the offender has excellent prospects of rehabilitation and the correspondingly low likelihood of recidivism.
Mr Dombrowski's opinion (psychologist) provided in aid of a bail application is that: 1. In assessment the offender gave no indication of any serious personality pathology. 2. Cognitive behavioural therapy and pharmaco therapy will assist in his desires to overcome his depression and social intimacy deficits and he has expressed a strong desire to access such treatments which is a positive prognostic factor. 3. The offender has minimal criminogenic needs. 4. The offender is not likely to require close monitoring to maintain stable law abiding behaviour in the community. 5. There is no evidence, (either personal to the offender or in the literature) to support an assertion that he would be a risk to his own children. 6. There is no indication that it would be unsafe for him to return to live in his family home. 7. Supervised access to the internet may be a useful safeguard if released on bail.
Dr Pulley's opinion provided in anticipation of the offender's sentencing proceeding is that: 1. There is insufficient evidence to diagnose the offender with a paraphilia (e.g. paedophilia). 2. The offender has very good prospects of rehabilitation due to his willingness to engage with treatment, stable background, acceptance of responsibility for the offending behaviour, lack of antisocial attitudes and likelihood of compliance with conditions of a non‑custodial order.
Dr Pulley concludes that when consideration is given to the presence or absence of risk factors, the offender presents as someone who is at a relatively low risk of recidivism.
The offender has already made significant progress in addressing his mental health issues that are the root cause of his offending. Dr Pulley describes him as appearing to have good insight into his mental health problems and having entered remission. Further his actions and the reflections of his wife demonstrate that he has and will continue to seek treatment and enact preventative measures to his life to avoid the recurrence of offending. To reincarcerate the offender would, to my mind, not only interrupt his progress to date but would almost certainly lead to a significant decline in his mental health.
His treating psychologist Natalia James reports as follows: "The offender remains dedicated and committed to continue therapy by weekly sessions... The offender is diligent and entirely engaged in therapy. The offender reports that he is adamant in resolving his issues in a timely managed manner ... in order to achieve long‑term sustainability and improve his general quality of life... The chances of the offender reoffending are low. He has no personality disorder. He has no past offences. He is well supported. He functions well in the workplace. He is supported by his family and his friendships."
That statement is consistent with all of the other evidence including a statement in the sentencing assessment report tendered before me and I accept it.
Given the uniform opinions of all the medical professionals as well as the offender's ongoing active treatment of his mental health issues by way of formal psychological treatment with Ms James, open discussions with his wife and deep self‑reflection the overwhelming evidence is that the offender has excellent prospects of rehabilitation.

[29]

Orders

Mr Cui, would you please stand up. 1. Mr Cui, you are convicted of the charges to which you have pleaded guilty. 2. For each of the offences you are sentenced to a term of one year imprisonment commencing today to be served concurrently. 3. The indicative sentence for each offence is 1 year commencing today. 4. I direct that the offender be immediately released upon the following conditions: 1. The offender is not to commit any offence. 2. The offender must appear before the Court if called on to do so at any time during the sentence. 3. The offender is to be referred to a Corrective Services New South Wales psychologist for further sex offending, risk assessments to identify dynamic risk factors specific to the offending and for consideration of supervision treatment options over and above those that he is already undertaking. 4. The offender is to have contact with his Community Corrections officer every two weeks. Supervision contact with Community Corrections is to include positive behaviour changes, exercises to assist and encourage positive communication skills, an exploration of prosocial and respectful interpersonal relationships. 5. Community Corrections is to have regular contact with the offender's treating psychologist (Natalia James) to verify and monitor his attendance and progress at intervention to address his mental health issues. 6. The offender is to attend at least fortnightly appointment with his treating psychologist, Natalia James, or such other medical professional as is approved in writing by his Community Corrections officer. 7. The offender is to attend appointments with a psychiatrist every six months to oversee his psychological treatment. 8. The offender is not to seek employment or voluntary work with any institutions/organisation that is involved with persons under the age of 16. 9. The offender is to be the subject of the supervision of a probation officer. 10. The offender is to obey all reasonable directions of a probation officer. 11. The offender is not to travel interstate or overseas without the written permission of his probation officer. 12. The offender is to undertake such treatment or rehabilitation programs over and above those already in place that his probation officer reasonably directs. 13. The Offender is to give security of $1.00, without surety.

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Judgment (30 paragraphs)

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Legislation Cited (2)

Cases Cited (7)