R v Nguyen [2001] VSCA 139

2. The applicant, Thai Nguyen, who is now aged 25, pleaded guilty in the County Court at Melbourne on 24 July 2000 to a presentment containing two counts of taking part in an act of sexual penetration with a child aged between 10 and 16 contrary to s.46(1) of the Crimes Act 1958. The maximum penalty for this offence is 10 years' imprisonment. The acts of offending occurred on 9 September 1999 when the applicant was 23 years of age and the victim was aged 14. The applicant had first entered a plea of guilty to both charges at the committal stage on 26 April 2000. The matter was then set down for hearing as a plea of guilty in the County Court and the applicant was released on bail. He has no prior convictions. After hearing a plea for leniency made on his behalf, the learned sentencing judge sentenced the applicant on 28 July 2000 to a term of two years' imprisonment on each count and ordered that six months of the second count be cumulated upon the sentence in respect of the first count, thereby imposing a total effective sentence of two years and six months' imprisonment. The sentencing judge also ordered that 21 months of the sentence be suspended for a period of two years.

5. On 2 August 2000, the applicant lodged a notice of application for leave to appeal against sentence and, on 1 September 2000, by an order of this Court was released on bail. The applicant has served 37 days, including today, of his sentence in prison.

8. Before considering the grounds on which the applicant relies in support of his application, I will set out the personal circumstances of the applicant and the circumstances relating to his offending. The applicant was born in Vietnam on 7 January 1976. Because of the war and its aftermath, the applicant never knew his father who died when he was approximately three years old. Ultimately, the applicant and his mother migrated to Australia when the applicant was approximately seven years old. His mother remarried in about 1990, but the applicant only has a distant relationship with his stepfather. After successfully completing Year 12 at the local high school, the applicant eventually enrolled in 1997 in a graphic design course at Monash University where he proved to be a very social and active person. He was popular and became the Vice-President of the Vietnamese Student Club. The applicant completed the course in 1999 and obtained a part-time job as a graphic designer.

11. Although the applicant had a short relationship with a girl when they were at high school and some episodes of social interaction with some females, since about the age of 13 or 14, he has experienced thoughts and fantasies of sexual contact with males. He admitted to the police that around this time he was involved in one episode of mutual masturbation with his male cousin who was then aged about 12 or 13. Apart from that, up to the time of the present offending, according to the applicant, he had no other sexual contact with other males or females. Having grown up in a Catholic family with strict, conservative moral values, the applicant, while being troubled and confused by his thoughts about sexual relationships with males, felt he had no one at his home to whom he could speak about the matter. He could not even bring himself to tell his family that he had been charged and convicted of the offences in question.

14. The victim in this case is a boy then aged 14 who lived with his parents and siblings in an area that was in the general vicinity of the applicant's home, but before the time of the offending the victim and the applicant had not personally met. Each, however, used the Internet to communicate and "chat" with persons with whom they had mutual interests. During 1999 the applicant, who described himself as being "bi-curious", that is to say, curious about males, and, being interested in making contact with other, preferably mature, teenage or young adult males to whom he could speak about his sexual interests, started to visit a number of gay chat rooms and gay pornographic web sites on the Internet. He established a chat room on the Internet where he could contact those who seemed to have the same sexual interests. It seems that the applicant's first communication with the victim over the Internet took place at 9.28 p.m. on 6 September 1999. After mutual greetings, the applicant asked the victim, "Can I ask if u r bi?" Her Honour found that the victim responded that he was not "bi", but after the applicant said, "I'm just looking for other bi friends, sorry to bother you", the victim said that he was bi and that he had had separate experiences with "three other guys". This statement was in fact false. As a result, the applicant continued to "chat" with the victim and in the course of their conversations asked him whether he had "done everything" and was told that "Yup, it all, I think". This was also false. The victim later explained to the police that he told those untruths to the applicant in order to see how he would respond to that information.

17. Although the victim did not know the applicant's age, he did know that he was attending university. The applicant told the police that he believed the victim when he told him that he was aged 15. It seems that, in any event, his age was listed on the computer home page as 15 years (notwithstanding that he was then only aged 14). As the applicant's counsel told her Honour during these discussions a friendship developed between the applicant and the victim and in the event, they decided to meet in the afternoon of 9 September 1999 at a bench outside a fish and chip shop in Hampton Park.

20. The applicant and the victim gave slightly different versions as to the precise events of that afternoon. The applicant's counsel pointed this out to her Honour but said the difference between the respective versions was not of "enormous significance in the greater scheme of things". Her Honour, however, accepted the victim's version of the events which he had disclosed to the police on the day following the offending in the form of a statement which, according to her Honour, was "comprehensive and [contained] frank admissions as to the provocative or inquisitive statements" which he had made to the applicant. Her Honour said that the victim's account was consistent with passive participation in the sexual activity to which I will refer shortly. On the other hand, her Honour found that a number of the answers given by the applicant to the police in his record of interview were somewhat vague, evasive and inconsistent.

23. After the applicant and the victim met at the pre-arranged spot in the late afternoon or early evening of 9 September 1999, they walked to a nearby park for privacy and spoke for up to an hour on various topics including their sexual preferences and behaviour. It seems that each felt awkward talking about these matters and expressed the view that it was easier to speak about them on the Internet where there was less inhibition. In the course of these discussions the victim asked the applicant whether he would like to see his penis; during the discussions it started to rain. It was also getting dark. In that context the two went to the applicant's car which was parked nearby. The victim sat in the passenger seat and the applicant sat in that of the driver. The applicant's counsel told the sentencing judge that, once they were in the car, the applicant became sexually excited. According to her Honour, the applicant then asked the victim if he would like the applicant to touch him but the victim replied: "I don't think so. I don't know." When the applicant then began caressing the victim and kissing him on his chest and stomach, the victim did not resist. The applicant then requested the victim to remove his pants, which he did, and the applicant then engaged in oral sex on him. He then stopped and asked the victim to perform oral sex on him, and, according to the victim, the applicant placed his hand at the back of his neck and guided his mouth towards his penis. The victim thus performed oral sex on the applicant for a "couple of minutes" until the applicant lifted him up and began to perform oral sex on the victim again until he ejaculated into the applicant's mouth. The applicant then told the victim that he was ready to ejaculate. The victim then performed oral sex on the applicant until a car pulled up nearby. The victim told the applicant, falsely, that the occupants in that car were his brother, his girlfriend and a friend. As her Honour found, the victim took this opportunity to get out of the car and leave, telling the applicant not to follow.

26. The two sets of oral sex were the subject of counts 1 and 2 to which the applicant pleaded guilty as previously described.

29. According to the victim, when he arrived home he immediately turned on the computer, had a "boiling hot" shower and drank lots of water. Shortly thereafter, he sent the applicant a message saying that he was disgusted, scared and confused by what had happened, asking the applicant not to make further contact and stating further, "I think we both know that what we did was wrong ... and illegal". He then telephoned a friend and told her and her mother what had happened. He was distressed and threatened to commit suicide. Since the victim was at his home alone, his friend's father took him to his own home until the victim's mother arrived. Her Honour found that the offending is likely to have a lasting effect on the victim and his own victim impact statement refers to his "chronic paranoia", insecurity about going out, and indicates that he is deeply ashamed, embarrassed and confused about what happened and guilt-ridden for the suffering caused to his parents.

32. The applicant was subsequently identified and arrested by the police. During his arrest, he admitted the offences, expressed remorse for his behaviour, and was generally co-operative and of good demeanour although, as has been mentioned, her Honour had reservations about the frankness of some of his answers to the police. During the hearing of the plea in mitigation neither the applicant nor the victim gave evidence, although the judge had before her the victim's statement to the police and the applicant's record of interview. His counsel also tendered a reference from a course coordinator at the applicant's university, which attested to his being a "talented and popular student of high character ... dedicated, reliable and very popular with his peers". Counsel also tendered the report of Dr William Glaser, a consultant psychiatrist, who examined the applicant on 5 and 10 July 2000 and who expressed an optimistic view about the applicant's prognosis.

35. The applicant relies in support of his application on six grounds, but in light of certain concessions made by the Crown in relation to ground 2, it will not be necessary to deal with the other grounds. Ground 2 alleges specific error, namely, that her Honour erred when she said in the sentencing remarks that the victim's consent and provocative conduct were irrelevant for sentencing purposes. It is plain that, if this ground is made out, the sentencing discretion will be re-opened.

38. In her sentencing remarks the learned sentencing judge said that: "The fact that [the victim] may have indicated active or positive consent or even engaged in provocative behaviour is entirely irrelevant." Her Honour meant, as is apparent from the context, that the victim's behaviour which she considered to be entirely irrelevant was irrelevant for sentencing purposes. Mr Elston for the Crown agreed that the victim's conduct in relation to the applicant, which included his passive or active consent to oral sex with the applicant, cannot be said to be irrelevant for sentencing purposes, but he did not concede that consent by itself could be a circumstance of mitigation in an offence of this kind where absence of consent is not an element of the offence. Mr Elston submitted, as I understood him, that consent by itself may demonstrate absence of aggravating factors but it could not be taken into account for mitigating purposes. This submission seems to me to be contrary to a number of cases. For example, in R. v. Wu[1] this Court considered the statutory offence of sexual penetration of a person with impaired mental function by a person supplying services relating to that impairment in circumstances where consent is no defence. Phillips, J.A. (with whom Brooking and Buchanan, JJ.A. agreed) said that the fact that "the offence was committed by the applicant believing the complainant had consented" was one of a number of factors which "made a powerful base for the plea in mitigation". In R. v. Butler[2], the Full Court[3] considered that the consenting conduct of the 12-year-old victim of an offence in respect of which consent was no defence could be taken into account as a mitigating factor for sentencing purposes. Similarly, Professors Fox and Freiberg Sentencing State and Federal Law in Victoria[4] confirm[5] that in the context of sentencing a person guilty of sexual penetration of a child between 10 and 16:

"Though the consent of the victim is, by law, irrelevant to the determination of guilt in relation to these offences, it is highly relevant to sentence. Sentences at the lowest end of the range will be appropriate for consensual acts of intercourse between those persons whose age difference is not great."

See also Kakai v. R.[6]; Fletcher v. R.[7]

43. Having said that, however, it is unnecessary to resolve this issue because her Honour excluded from her sentencing considerations all of the victim's relevant conduct towards the applicant, which the Crown has agreed amounted to specific error. It follows that this Court may now exercise the sentencing discretion and impose a sentence that it considers appropriate. In determining what should be the appropriate sentence to impose on the applicant, it is necessary to ensure that it reflects (inter alia) the gravity of the offence, the applicable sentencing principles, the circumstances of the offending including its consequences, taking into account matters personal to the applicant and other mitigating factors. The offence in respect of which the applicant pleaded guilty is obviously a very serious one, as is evident from the fact that Parliament has prescribed a maximum penalty of 10 years' imprisonment and has abrogated a defence of consent. It is apparent that a principal aim of the legislation is to protect children and young adolescents who are generally vulnerable to persuasive conduct of older and more mature persons from being sexually abused by them. This case is not one of consensual sexual behaviour between two young persons of comparable age. The applicant was more than 50% older than the victim and of the two he was clearly the more intelligent and mature. Although the victim did not know the applicant's exact age, he knew that he was a university student and therefore a good deal older than he was. Those matters, and the fact that the applicant was obviously socially more experienced, were likely to have impressed the victim and confirmed in his mind the applicant's more dominant position. As far as the offending conduct is concerned, although it was the victim who offered to show the applicant his genitals when they were discussing various matters in the park, it was clearly the applicant who took the lead in the sexual behaviour between the two while they were in the car. It seems clear enough that the applicant took advantage of the vulnerability and the friendship of his much younger victim.

46. 15 Given that so many children and young adolescents nowadays use the Internet usually without effective parental or other supervision, it is relatively easy for someone older and more mature to abuse that technical facility and his or her status to seek out a young victim for the purpose of forming a sexual relationship that is proscribed by the legislation. The law sets out to protect children and young adolescents from such exploitation (and, on one view, from themselves) and it is important that it should be understood by those who engage or propose to engage in such predatory conduct on the Internet that the courts will impose appropriate punishment upon those who are caught. As her Honour correctly observed, the principle of general deterrence assumes considerable significance for the purpose of the sentencing disposition in this case. Special deterrence, denunciation and the need to effect just punishment are also relevant. Similarly, it is necessary to take into account the fact that the offending has caused significant distress to the victim which is likely to continue for some time and may have a detrimental impact on him into the future. But it is also necessary, as I have said, to have regard to all the circumstances surrounding the offending. In my view, the applicant's conduct was not predatory in nature, given that he was prepared to move on when the victim first told him he was not a "bi". He remained to speak with the victim only because the latter lied to him about his sexual interests and experience and thereby aroused the applicant's interest. Similarly, the victim's offer to show off his penis is a relevant matter when considering whether the applicant's conduct was predatory. There are other mitigating factors, which include the relatively young age of the applicant; the fact that this is his first offence; the fact that he admitted the offending and pleaded guilty at an early stage and has shown remorse; his seemingly reasonable prospects of rehabilitation; the victim's relevant conduct towards him to which I have already referred; the applicant's personal circumstances, including his strength of character which helped him to overcome a certain amount of racism at school and to complete his schooling and a university degree; other circumstances including the Crown's attitude that in the present case a fully suspended sentence would not be an inappropriate sentencing disposition.

49. I agree with her Honour that an appropriate sentence to impose on the applicant in relation to each count is two years' imprisonment, but because, as the Crown submits, the conduct comprising each count was only marginally different, the conduct giving rise to the offences can be properly treated as one transaction and therefore I would not order any cumulation in respect of the sentences. In view of the mitigating circumstances to which I have referred, I am of the view that immediate incarceration would not be in the best interests of the applicant or the community. Sending him to gaol for a few months in the context of this case might do him and the community more harm than good. I consider it appropriate that, in the special circumstances of this case, the sentence be, in effect, wholly suspended save for the 37 days to which I have referred earlier. I note that her Honour sensibly, with respect, recommended that whilst in prison the applicant be referred for assessment and treatment under relevant sex offender programmes. If the other members of the Court agree with my proposed sentencing disposition, I would strongly recommend to the applicant that he seek the treatment suggested in Dr Glaser's report.

59. I agree that the application should be granted and the appeal allowed. I also agree with the sentence which Chernov, J.A. proposes. Having regard to the personal circumstances of the applicant set out in the report of the psychiatrist, Dr Glaser, I think it is appropriate to suspend all but 37 days of the sentence. The sentence itself, however, reflects the seriousness of the offences.

62. An element of this case which in my view is troubling is the use made by the applicant of the Internet. The circumstances of this case illustrate that youthful users of the Internet are vulnerable to strangers. Predators who exploit that vulnerability should be punished, and those entrusted with the care of the young should be aware of the risks which the Internet creates as a result of the access to the world which it provides.

66. Mr Nguyen, before I pronounce the orders of the Court it is important that you understand them. We propose to give you one last opportunity to avoid serving the rest of the sentence. That is for the reasons that Justice Chernov has explained, including our belief that you have good prospects of rehabilitation if you are given one last chance. The effect of the order that we shall make is this. The sentence of two-and-a-half years' imprisonment will be reduced to two years, but the Court will suspend all of the sentence except for the part that you have already served. The sentence will be suspended for two years, but that two-year period will be backdated to the date on which you were sentenced in the County Court, which was 28th July last year. Accordingly, the operational period that will be referred to in the order is the two years ending on 28th July 2002. If you commit another offence punishable by imprisonment during that period of two years you will be brought back before a court. It does not matter whether you commit the offence in Victoria or outside Victoria; it does not matter whether you are in fact imprisoned for that offence or not. If you commit another offence that could be punished by imprisonment, you will be brought back before a court. That court may punish you for breach of the suspended sentence, but, far more importantly, you will almost certainly be ordered to serve the rest of the two years in prison. You only get one last chance to avoid that. Do you understand that?

71. The formal orders of the Court will be as follows.

The application for leave to appeal against sentence is granted. The appeal is treated as instituted and heard instanter and is allowed.

The sentences imposed below are quashed and in lieu thereof the appellant is sentenced -

Those sentences are to be served concurrently by operation of law, making a total effective sentence of 2 years' imprisonment.

It is ordered that all but 37 days of the sentence be suspended for an operational period of 2 years.

The sentences are deemed to have been imposed, and the operational period to have begun, on 28th July 2000.

It is declared that the period of 37 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

[1] [1999] VSCA 209.

[3] Winneke, C.J., Starke and Crockett, JJ.

[6] Unreported, Court of Criminal Appeal of Western Australia, 23 February 1999 at p.9 per Malcolm, C.J.

[7] Unreported, Court of Criminal Appeal of Western Australia, 27 March 1997 at 14-15 per Malcolm, C.J.