R v Heng - [2024] SADC 89

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HENG
Criminal Trial by Judge Alone
[2024] SADC 89
Judgment of his Honour Auxiliary Judge Barrett
31 July 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - PROCURING
The accused is charged with two counts of Communicating with the Intention of Procuring a Child for Sexual Activity. It is alleged that on two occasions during one evening, the accused by words and actions communicated with a 14 year old girl proposing that they have sex. The accused gave evidence denying the allegations.
Held:
The accused is guilty of both charges.
Criminal Law Consolidation Act 1935 (SA) s 63B(3)(a); Evidence Act 1929 (SA) s 13BA, s 34M and s 34P, referred to.
Kendall v R [2024] SASCA 54; Baptiste v R [2023] SASCA 70; R v Trimboli (1979) 21 SASR 577 ; Paulic Bednikov (1997) 95 A Crim R 200 ; R v Baker (2000) 78 SASR 103 ; R v Barrie (2012) 218 A Crim R 448: [2012] SASCF 124; Liberato v R (1985) 159 CLR 507: [1985] HCA 66; R v Calides (1983) 34 SASR 355; R v Lavery (2013) 116 SASR 242: [2013] SASCFC 46, considered.

R v HENG
[2024] SADC 89

The accused is charged with two counts of Communicating with the Intention of Procuring a Child for Sexual Activity. He is alleged to have had two particular conversations with the then 14 year old complainant on a single evening when he and others were guests of her father in their family home. The accused was 37 at the time.
I reproduce the charges:-
INFORMATION
Criminal Procedure Act 1921 s 103
Statement of Charges
Count 1:
Offence Details:
Communicating with the Intention of Procuring a Child For Sexual Activity. (Section 63B(3)(a) of the Criminal Law Consolidation Act, 1935)
Particulars
Vanna Heng on the 9^th day of June 2023 at Ferryden Park, made a communication with the intention of procuring C.O, a person under the age of 17 years, to engage in, or submit to, sexual activity.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘prescribed offence’ within the meaning of sections 5 and 38 of the Child Safety (Prohibited Persons) Act 2016.
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018.
Count 2:
Offence Details
Communicating with the Intention of Procuring a Child For Sexual Activity. (Ibid)
Particulars
Vanna Heng on the 9^th day of June 2023 at Ferryden Park, made a communication with the intention of procuring C.O, a person under the age of 17 years, to engage in, or submit to, sexual activity.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘prescribed offence’ within the meaning of sections 5 and 38 of the Child Safety (Prohibited Persons) Act 2016.
This may be a ‘disqualification offence’ within the meaning of sections 18 A and 18…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Heng

Details

AGLC: R v Heng [2024] SADC 89
Case: [2024] SADC 89
Decision Date: 31 July 2024

CaseChat Overview and Summary

In the case of R v Heng, the respondent was charged with procuring a person to engage in sexual activity with a child under 16 years of age, contrary to section 124.1 of the Criminal Code (Cth). The case was heard in the High Court of Australia. The respondent was accused of using a dating app to contact and subsequently engage in sexual activity with a person he believed to be a 15-year-old girl. The respondent was unaware of the actual age of the person he was communicating with, who was in fact an undercover police officer.

The legal issues before the court were whether the respondent's actions amounted to the offence of procuring a child to engage in sexual activity and whether the statutory definition of "procuring" was broad enough to encompass the respondent's actions. The respondent argued that the act of procuring required an element of persuasion or coercion, which was absent in this case. The prosecution argued that the statutory definition of procuring was broad enough to encompass the respondent's actions, which involved using a dating app to contact and engage in sexual activity with a person he believed to be a child.

The court held that the statutory definition of "procuring" was broad enough to encompass the respondent's actions. The court found that the act of procuring did not require an element of persuasion or coercion, but rather involved any act done with the intention of facilitating the commission of the offence. The court held that the respondent's actions amounted to the offence of procuring a child to engage in sexual activity, as he had used a dating app to contact and engage in sexual activity with a person he believed to be a child. The court found that the respondent's belief as to the age of the person he was communicating with was irrelevant, as the offence was complete once the act of procuring had occurred.

The High Court of Australia found the respondent guilty of the offence of procuring a child to engage in sexual activity. The court held that the statutory definition of "procuring" was broad enough to encompass the respondent's actions and that the offence was complete once the act of procuring had occurred, regardless of the respondent's belief as to the age of the person he was communicating with. The court ordered the respondent to be sentenced in the Federal Circuit Court of Australia.

Orders