R v Noy [2025] ACTSC 93

On at least three occasions, the offender sent explicit images of himself to the victim. On at least one other occasion, he sent images of himself in underwear.

At the sentence hearing, it was accepted that there are discrepancies in the interview as to what the offender said regarding the victim’s age, and his own age at the time. These were described as being misstatements and misunderstandings by the offender at the time of the interview.

During the record of interview, the offender was further shown intimate images sent from him to the victim. A short time later, he advised that he did not wish to further participate in the interview as he needed to go to work.

On 29 June 2023, the offender attended at the police station and gave consent for his mobile phone to be forensically examined. Police were unable to recover any text message conversations, videos, or images between the offender and the victim from the offender’s phone.

The offender was summonsed in relation to the offending and has spent no time in custody. Assessment

The offending that occurred involves particularly serious aspects. The victim was of a relatively young age, and the communications quickly descended into a highly sexualised interaction. The child abuse material depicted was detailed and explicit, with graphic descriptions of the sexual acts that the offender wanted to engage in with the victim. The victim transmitted, typically upon his request, images of a highly intimate nature. The offender sent explicit images of himself to the victim. There were at least seven images transmitted.

Nonetheless, there are factors in the offending that reduce the seriousness. In particular, it was offending that occurred over a short period, less than a month, from 1 January 2023 to 25 January 2023. It was restricted to messages and images between the offender and the victim, without inclusion of external material. The messages and communications involved, while daily and involving some persistence, are not otherwise specified as to the number of them in the facts. There appears to be a lower amount than might typically arise in more serious offending of this type. The daily conversations are described as not always being of a sexual nature, and not always initiated by the offender. It is also apparent that the offender did not attempt to preserve his anonymity, and he was honest about his own age.

The age disparity between the offender and the victim was not inordinately significant. There was no breach of trust arising from a previously established relationship, although the offender did rapidly gain the trust of the victim and exploited that trust. He was not though, as submitted on his behalf, threatening, forceful or coercive, no inducements were offered, and the conduct is not necessarily indicative of a paedophilic interest in children. However, I do not accept the other submission made on his behalf in this regard, namely, that the communications were not manipulative. The manner in which the communications built the trust of the victim, and then descended rapidly to images and graphic communications reflects aspects of manipulation, done at least recklessly by the offender.

The observations made as to the less serious aspects of the offending is not to say that the offending was anything other than inherently serious. This includes that the circumstances of the offence involve communications which suggest, particularly at the initial stage, that the offender was very conscious that he should not engage in communications of a sexual nature with the victim. [Redacted]. Nonetheless, he rapidly began to engage in such communications, and did so with communications of a highly explicit and graphic nature, with intentions to engage in sexual activity involving intercourse. This extended to the communications being of a highly offensive and degrading nature, with a girl that he well knew to be of 13 years of age.

While it is apparent that the offender was not making immediate plans to meet in person with the victim, and appeared to have some hesitations about this occurring, he did take some steps towards this. He also did not cease the communication of his own volition.

Overall, I regard the procurement and transmit charges as the most serious, in terms of the contents of the communications, the extent to which sexual activity was procured, and the number and nature of images involved. The transmit to self charge, while still serious, is less extensive in terms of the communications involved and I regard it as less serious. Nonetheless, there is, as the Crown submitted, an inherent gravity in all of the offending.

With reference to the mandatory consideration provided by s 272.30 of the Criminal Code, I observe that there was one person involved in the commission of the offence, that is, the offender is solely responsible for the offending. As already observed, the victim was young and of an immature age, being 13 years old. As expressed by her mother (see below at [36]) she has a particular vulnerability due to neurodivergence. Harm to the victim

The victim has expressed in a victim impact statement the real and significant harm that offending of this type causes. The offending has impacted her life in a material way.

The victim expresses her anxiety and overwhelm when the offending was detected. She felt that she was going to get into trouble, while also feeling responsible for the offender’s conduct. She was frustrated with herself, and felt sad and worried. Her devices were taken away from her, and she lost motivation to go to school and work. She lost friends. The victim became depressed and started self-harming and having suicidal thoughts. She has had to engage in therapy for assistance. The victim poignantly describes that she has been left with scars on her body and scars in her mind.

The victim’s mother, whose impact statement was admitted with leave, expresses her experience of the stages of grief as she processed what occurred. She felt that she had failed her daughter, and she lost trust in her and in other people. She has struggled to trust her daughter with technology and the internet, and is anxious and worried for her safety. The victim’s mother explains the particular vulnerability of her daughter due to her being autistic. She has also experienced anxiety and concern that the offender would attend at their house, and there have been financial implications from attendance at appointments and the seizure of the victim’s phone by police. Subjective circumstances

The offender is almost 21 years of age, and was aged 18 years at the time of the offending.

He has no criminal history. The Crown accepted that the offender may be regarded as being of good prior character, although noted that this is often the case for matters of this type and such a circumstance is to be given less weight in sentencing for offending of this type: DPP v Smith [2010] VSCA 215 at [23]; Mouscas v The Queen [2008] NSWCCA 181 at [37].

The offender was born and raised in Canberra with a sibling or siblings. The reports may be inconsistent as to this, but it is not of consequence. Both a pre-sentence report and a psychological report were tendered on sentence. The reports are consistent that the offender has a younger sibling who has cognitive differences, and that the offender has a role in supporting him. The offender describes to the author of the pre-sentence report that he was raised in a family environment free from domestic violence or substance abuse, with supportive relationships amongst the family.

He resides with his family, and in his free time he enjoys playing board games with them. He has a girlfriend whom he has been dating since October 2024. He otherwise has a wide and positive social network, and is a member of a particular sporting organisation in Canberra. He participates in entertainment shows in a professional capacity in that sport, and he regards the performance troupe as family and a supportive environment.

The offender completed year 12, and has been employed in various roles since he was 16 years of age. He is currently employed, although has had to change employment due to the offending becoming known. He describes a relatively comfortable financial situation. He is in good physical health.

The offender denies any history of problematic alcohol or drug use, although reported he experimented with cannabis once in March 2024. I note that this was on an occasion after he had come to the attention of police in relation to the sentence matters, but he was not on bail. Further, given use of the nature described is to be regarded as more of a health issue in the ACT jurisdiction, the described use is not of concern in terms of compliance with the law.

The offender further reported to the author of the pre-sentence report that [redacted]. The details of this are unnecessary to repeat, particularly given the Crown do not submit against a finding that this occurred. The offender reported to the pre-sentence author that he did not disclose this experience to his parents until a few months ago, and that he has struggled [redacted]. On his behalf, it was submitted that while the offender appeared objectively to be a stable prosocial young man, what was truly going on was a young man struggling to come to grips with [redacted].

The offender describes his mental health as stable, and he has never received mental health treatment. He reports to the pre-sentence report author that he occasionally experiences depressive episodes and suicidal ideations.

Nonetheless, the offender has made progress in this regard. The pre-sentence report dated February 2025, finds that the offender does not dispute the statement of facts and that he accepts responsibility for his offences. He is described as demonstrating an appropriate level of victim empathy. He attributes his offending behaviour to his poor mental health at the time, and surmised [redacted] may have contributed to his conduct or caused some distortions towards intimate interactions. Further, the psychologist finds that the offender’s presentation is consistent with someone who is appropriately affected by and regretful of their behaviours, and who recognises their responsibility for those behaviours.

On behalf of the offender, it was highlighted that he raised no objections to the victim impact statements, reflective of the offender appreciating the importance of not just the victim, but also her family, being able to express the impact of the offending upon them. Rehabilitation

In accordance with ss 16A(2)(n) and 16A(2AAA) of the Crimes Act, I am required to have regard to the prospect of rehabilitation of the offender and the objective of rehabilitating him. The requirement in s 16A(2AAA) does not of course displace or override the requirement in s 16A(1) to impose a sentence of a severity appropriate in all the circumstances of the offence: Boulton v The Queen [2014] VSCA 342; 46 VR 308 at [72]. However, the offender’s youth, and the role of rehabilitation in the sentencing exercise as a result, is also to be borne in mind, with both parties submitting that this has significance in the sentencing exercise: see, e.g. Clarke-Jeffries v The Queen [2019] NSWCCA 56 at [49] (Clarke-Jeffries v The Queen).

The offender is described in the pre-sentence report as benefiting from a number of protective factors, including stable accommodation, family support, financial stability and pro-social connections within the community. He is assessed as having a low risk of general re-offending, and an above average risk of sexual re-offending. The report recommends that the offender engage in an assessment for a sex offender program, such as the ACTCS EQUIPS Sex Offender Program, and that consideration be given to addressing his mental wellbeing [redacted]. The report finds that he is suitable for a medium level of intervention by ACT Corrective Services.

The psychologist finds that the offender requires psychotherapy, but his opinion is that he does not believe that Mr Noy will re-offend. The psychologist opines that the offender’s “motivation for [psychotherapy] treatment is low compared to others in such circumstances”, which he attributes to the offender having “sublimated much of his longer-term underlying depression and need for recognition in his professional [sporting] performances in front of an audience”. The psychologist explains that this means that “any treatment would be fairly challenging, with a difficult process and the probability of reversals and at-risk for early termination”. At the sentence hearing, I was informed that the offender has made an appointment with his general practitioner to obtain a mental health plan and a referral to a psychologist.

The psychologist report includes that the offender was asked about his use of pornography and the attitudes toward females that such approaches to interpersonal relationships generate. The offender is described as being receptive and aware of the artificiality and corrosive nature of such media.

In addition, the parents of the offender have provided a letter on his behalf. They expressed their deep remorse and sorrow for the pain and distress that their son’s actions have caused the victim and her family. They acknowledge that the pain and regret they feel would pale in comparison to that of the young vulnerable victim. They write that they are taking every possible step to ensure their son understands the gravity of his actions. It is apparent that the offender’s parents have a depth of recognition of the seriousness of the offending and the harm it has caused. This allows a finding that the offender has the support of committed family members, who have insight into the gravity of the offending, to assist him with his rehabilitation.

It was submitted by the Crown that there are guarded prospects of rehabilitation. However, I conclude from the available information as to rehabilitation, along with the degree of remorse and insight into the offending, that the offender has solid prospects of rehabilitation, particularly if there is a motivation to engage with therapeutic treatment. It is apparent from both the pre-sentence report and the psychological assessment that the offender would benefit from engagement in rehabilitative programs that address his offending behaviour and his mental health. It is apparent that he has parents that will encourage and enforce such treatment. In the circumstances of this matter, it is unnecessary that the appropriate programs are specified in any order, with it apparent that ACT Corrective Services have already identified appropriate treatment options. Comparable authorities

Both parties assisted with authorities directed towards providing guidance as to the identification and application of relevant sentencing principles and as ‘yardsticks’ that might show the range of available sentences: R v Pham (2015) 256 CLR 550 at [23], and see also Clarke-Jeffries v The Queen at [47].

The Crown referred to Clarke-Jeffries v The Queen, DPP (Cth) v Singh [2017] VSCCA 146 and R v Bredal [2024] NSWCCA 75 (R v Bredal). The latter two of these authorities involved an older offender and communications with an assumed online identity which are significant distinguishing features. In Clarke-Jeffries v The Queen, on appeal, sentences of two years imprisonment and seven months imprisonment were imposed for offences contrary to ss 474.26(1) and 479.19(1)(a)(iv) of the Criminal Code. There was a large volume of messages over a four-month period, with images sent, and compelling subjective circumstances of the 18 year old offender. This authority pre-dates the introduction of the legislative presumption as to exceptional circumstances, and the offender there was required to serve nine months of fulltime imprisonment.

The defence referred to DPP v Cook [2024] ACTSC 379, R v Ralston [2020] ACTCA 47 and R v Collins [2018] ACTSC 127. These authorities also have significant distinguishing features, including older offenders, communication offending occurring in a context of acts of sexual intercourse, and a different legislative regime including as to maximum penalties.

I have otherwise had regard to the recent decision in this jurisdiction of Kember v The Queen (No 4) [2025] ACTCA 9, to the extent that can be of comparative assistance.

Overall, there are aspects in each of the provided authorities that are distinguishable from the current matter, and which involve less and more serious aspects. It is plain from the authorities that stern terms of imprisonment are typically imposed for offending of this type. Sentencing principles

The sentencing exercise engages Pt 1B of the Crimes Act. This includes that the sentence must be “of a severity appropriate in all the circumstances of the offence” (s 16A(1) Crimes Act), that there is a need for adequate punishment (s 16A(2)(k) Crimes Act), that deterrence is to be reflected (s 16A(2)(j), (ja) Crimes Act), and the sentencing exercise is to recognise the harm suffered by any individual victim (s 16A(2)(ea) Crimes Act).

As the Crown submitted, with reference to various authorities, and being sentencing principles that were accepted on behalf of the offender as applicable: (a) General deterrence is typically a significant sentencing consideration, as there is a public interest in promoting the protection of children, given the vulnerability of children online and the need to protect them from sexual abuse by predators using electronic devices; (b) Offending of this type is 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; (c) Children need to be protected from predators and from themselves; (d) Offending of this type is difficult to detect; and (e) There is an intrinsic harm caused by sexual offences involving children.

The Crown did accept that in the circumstances of this offender, general deterrence is less relevant than it would be if sentencing an older and more mature offender without the mental health condition of the offender here. It was submitted that specific deterrence remains a significant consideration, with it necessary for the offender to understand that the bounds of sexual exploration cannot extend into the exploitation of children. I accept these submissions.

Pursuant to s 17A(1) of the Crimes Act, I must not impose a period of imprisonment unless I am satisfied that no other sentence is appropriate in all the circumstances of the case. ACT Corrective Services find that the offender is able to meet a financial penalty and is suitable for community service work. I do not consider that either such penalties, even if community service formed part of an entirely community based order, is appropriate having regard to the objective seriousness of the offending, the role of specific deterrence, and the subjective circumstances of the offender.

I am satisfied that no sentence other than imprisonment is appropriate in all of the circumstances. The objective gravity of the offending, even where it was offending committed by a young man for a short period, warrants nothing other than imprisonment. This was conceded on behalf of the offender.

The Crown conceded that, despite the presumption in favour of cumulative sentences in s 19(5) of the Crimes Act, some concurrency is appropriate to reflect the degree of overlap in the charges. It was submitted that total cumulation is not appropriate as the offences are directed at separate and distinct aspects of the offending. I agree. Complete cumulation is not appropriate given the inextricable link between the offending, with all offences related to the same period of communications. Nonetheless, there are distinct aspects to each of the offences such that a level of partial concurrency is appropriate. I am satisfied that imposing the sentence in a manner other than provided by the presumption would still result in sentences that are of a severity appropriate in all the circumstances: s 19(6) Crimes Act.

The issue becomes how that period is to be served. There is a legislative presumption that, at least, some part of the sentence should be served in actual custody: R v Bredal at [57]. The offender was not assessed for an intensive correction order, and I do not consider it necessary that he is, given the typical criminogenic risks to be addressed by such an order are not present in this matter. The Crown submitted that terms of imprisonment are required, but that it was a matter for the Court as to how any sentence of imprisonment is to be served. The Crown submitted that the Court should impose a sentence that focuses on ensuring the offender participates in treatment to address the offending, [redacted], and his mental health. Consideration

The aggregate sentence to be imposed is one that is less than three years of imprisonment, and the offender is not already serving or subject to a federal sentence. Accordingly, it is necessary to impose a single recognizance release order (RRO): ss 19AC(1) and 20(1)(b) Crimes Act. I may decline to make such an order if satisfied that such an order is not appropriate: s 19AC(4) Crimes Act. No submission was made to this effect.

I do not consider it appropriate in this matter to exercise that discretion. The offending was serious, and the prospects of rehabilitation warrant oversight and incentive to engage with treatment. The psychologist’s finding as to the prospect of treatment engagement suggests that a lengthy period of community supervision, being in the community where appropriate treatment can be accessed, would be of benefit.

Section 20(1)(b)(ii) of the Crimes Act is then of application. That is, there is a presumption that the offender will serve some period of actual imprisonment unless there are exceptional circumstances that justify the offender being released immediately on an RRO.

The Crown, appropriately, accepted that a combination of factors may demonstrate that the circumstances of the case are exceptional: R v Bredal at [61]. The Crown, fairly, accepted that the combination of factors relied upon by the offender are capable of establishing exceptional circumstances in this matter. This combination of factors was identified as: (a) The lower level objective seriousness of the offending; (b) The young age of the offender; (c) The lack of offending history either before or since; (d) The assessment as to the risk of re-offending, being nil per the psychologist’s opinion; (e) The primacy of rehabilitation; (f) The protective factors available to the offender, being the safe, stable and supportive family that will support rehabilitation; (g) The likelihood that a sentence of imprisonment would weigh more heavily on the offender in light of his [redacted] and mental health; and (h) The lifelong consequences to the offender, including his registration requirements pursuant to the Crimes (Child Sex Offenders) Act 2005 (ACT), with this being significant given it will be for the entirety of his adulthood.

It was additionally submitted that [redacted]. The Crown accepted this was a factor capable of relevance to consideration of exceptional circumstances, and the Crown’s submission remained that it was open to the Court to make a finding of exceptional circumstances in light of the combination of circumstances identified.

The Crown otherwise assisted with reference to Bredal and Crowder (a pseudonym) v The King [2024] VSCA 211 as to what is capable of constituting exceptional circumstances, this being a phrase that is deliberately not defined. It is apparent that a reasoning process is to be applied to determine whether the circumstances of the case are so exceptional as to warrant imposing a non-custodial sentence. Both the objective seriousness of the offending and the need for general deterrence require consideration.

I am satisfied, having considered the relevant matters, and with reference to the combination of factors identified on behalf of the offender, that exceptional circumstances are established in this matter. I am not persuaded that there is a lower level of objective seriousness, nonetheless, the youth of the offender is of particular significance, along with the circumstance of his childhood, his remorse, and the other factors relied upon. I am satisfied that an immediate RRO is appropriate.

It warrants emphasising, as observed by Taylor J in R v Lidden [2024] ACTSC 297 at [91], that “an outcome which does not require the offender to spend a period in full-time imprisonment must not be mistaken for no punishment at all”. The offender will be required to engage in supervision and treatment.

In addition, he will experience the consequence of registration requirements for life pursuant to the Crimes (Child Sex Offenders) Act 2005 (ACT). This is, as submitted on his behalf, a significant undertaking for an offender of his young age, and while, appropriately, not relied upon as extra-curial punishment, warrants recognition in the sentencing exercise. This young offender will be met with consequences that will follow him throughout his life, and will likely impact on activities that require a working with vulnerable people card, and his ambitions to have a professional sporting role in the United States.

Nonetheless, it also warrants recognising that the victim of his offending will also experience consequences from the offending throughout her life. A sentence that reflects this gravity of the offending, while giving effect to the subjective circumstances of the offender, is necessary. Orders

For those reasons, the following orders are made: (1) On the charge of use a carriage service to procure a person under 16 years for sexual activity (CAN 2024/7754) the offender is convicted and sentenced to 18 months imprisonment, reduced from 24 months on account of the plea of guilty, to commence on 19 March 2025 and end on 18 September 2026. (2) On the charge of use a carriage service for child abuse material (transmit) (CAN 2024/7756) the offender is convicted and sentenced to 18 months imprisonment, reduced from 24 months on account of the plea of guilty, to commence on 19 July 2025 and end on 18 January 2027. (3) On the charge of use a carriage service for child abuse material (cause to transmit to self) (CAN 2024/7755) the offender is convicted and sentenced to 12 months imprisonment, reduced from 18 months on account of the plea of guilty, to commence on 19 March 2026 and end on 18 March 2027. (4) The offender is to be released immediately, upon his entering into a recognizance release order, pursuant to s 20(1)(b) of Crimes Act 1914 (Cth), with security of $1000.00, without surety, for the period of 2 years, from 19 March 2025 to 18 March 2027. (5) The conditions of the recognizance release order are that Mr Noy is to: (a) be subject to the supervision of a probation officer appointed in accordance with the order; (b) obey all reasonable directions of the probation officer; (c) not travel interstate or overseas without the written permission of the probation officer; and (d) undertake such treatment or rehabilitation programs that the probation officer reasonably directs. (6) [redacted].