R v Nguyen [2001] VSCA 139

R v Nguyen [2001] VSCA 139 - VSCA 2001 case summary — Zoe

[11]

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.

[19]

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.

[20]

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.

At a glance

Court

Decision date

Before

Source

Judgment (35 paragraphs)

Parties