R v Noy
[2025] ACTSC 93
•19 March 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Noy |
Citation: | [2025] ACTSC 93 |
Hearing Date: | 26 February 2025 |
Decision Date: | 19 March 2025 |
Before: | Christensen AJ |
Decision: | See [82] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to procure a child for sexual activity – using a carriage service for child abuse material – where victim aged 13 and offender aged 18 years – nature of offending inherently serious – communications quickly descended into highly sexualised interaction – specific deterrence an important consideration – real and significant harm caused – [redacted] – consideration of offender’s youth – solid prospects of rehabilitation – reduction in sentence where plea of guilty entered at first opportunity – period of imprisonment imposed – combination of factors may demonstrate that the circumstances of the case are exceptional – exceptional circumstances warrant immediate release on recognizance release order |
Legislation Cited: | Crimes Act 1914 (Cth) Pt 1B, ss 16A, 17A, 19, 20 |
Cases Cited: | Boulton v The Queen [2014] VSCA 342; 46 VR 308 |
Parties: | Commonwealth Director of Public Prosecutions ( Crown) Bohdi Noy ( Offender) |
Representation: | Counsel E Gordon ( Crown) B Morrisroe ( Offender) |
| Solicitors Commonwealth Director of Public Prosecutions Tim Sharman Solicitors ( Offender) | |
File Number: | SCC 333 of 2024 |
Publication Restriction: | Portions of explicit material at [15]-[16], [20]-[21] have been redacted from the published decision. Enquiries should be directed to: [email protected] |
CHRISTENSEN AJ:
Introduction
1․Between 1 January 2023 and 25 January 2023, Bohdi Noy, the offender, engaged in conversation with a 13 year old girl over iMessage and Facetime. This was done with the intention of procuring the victim to engage in sexual activity.
2․During these conversations, on multiple occasions, the offender requested from the victim, and received, child abuse material in the form of images and text-based descriptions of sexual activity between them. The offender also transmitted text-based child abuse material to the victim.
3․The offender is to be sentenced for three offences contrary to the Criminal Code Act 1995 (Cth) (Criminal Code):
(a)Use a carriage service to procure a person under 16 years for sexual activity, contrary to s 474.26(1) (CAN 2024/7754);
(b)Use a carriage service for child abuse material (transmit), contrary to
s 474.22(1) (CAN 2024/7756); and(c)Use a carriage service for child abuse material (cause to transmit to self), contrary to s 474.22(1) (CAN 2024/7755).
4․All of the offences carry a maximum penalty of 15 years imprisonment, reflecting the gravity of the offending.
The offending
5․The offender and the victim had initially started communicating via SMS texting, on or about 1 January 2023 after the victim’s friend supplied her with the offender’s phone number, advising the victim that she had broken up with the offender on the game ‘Fortnite’ and that the victim was eighteen years old. The victim told the offender that she was thirteen years old, and the offender told her that he was eighteen years old.
6․They proceeded to text each other daily for a period of approximately three to four weeks, until 25 January 2023 when the victim’s mother discovered the conversations on the victim’s phone and reported the matter to New South Wales Police. Police conducted investigations, including obtaining the communications. The offender was identified following phone subscriber checks, and given his location in the ACT, the matter was referred to ACT Policing for investigation.
CAN 2024/7754: Using a carriage service to procure
7․During their conversations, the offender made references to being older than the victim.
8․During their conversations, the offender introduced sexual content to the conversation. He asked the victim whether she had been sexually assaulted and discussed the sexual assault of their mutual friend. [Redacted].
9․The communications, set out in detail in the statement of facts,[1] include:
[1] The communications as set out in these reasons are sic erat scriptum.
Offender: Wait your 13 right
Victim: Yeah
Offender: Pls don’t tell me someone has taken your v card yet right?
Victim: No no,
Offender: I hope you at least hold it till 16
Offender: For the legal age
Victim: Yeah
10․The offender introduced the idea of sending intimate images, talking about sending shirtless images of himself in exchange for memes, which subsequently occurred. He stated, “I’m so bored but I feel like a slut for running a special onlyfans for you with my man tittes”. The offender then said he had to go and explained to the victim that he had gone to masturbate. His communications to the victim included:
Offender: This happens to every guy
Offender:Around this time we get left alone with our thought and then our blood starts to rush to an area
Offender: Do you know what I’m saying
Victim: Yep
Offender: But just in case, wanna tell me what it is?
Offender: In other words
Guys get horny
Offender: And down there gets bigger
Victim: Oh yeah?
Offender: Us as guys has to do something to get rid of it
…
Offender: Guys have to Masturbate…
Offender: To get rid of it
Offender: Why am I telling you this
…
Offender: You will one day get these urges
Offender: And then you will deal with it
…
Offender: Don’t tell me your already getting those urges
Victim: What
…
Offender: Do you watch p**n
…
Offender: Good don’t watch it till your older
11․The offender then asked the victim whether she had ever masturbated. After a few more messages, the offender said “imma be honest I’m incredibly horny so I need to go take care of the thing”. Further communications then occurred:
Offender: Now I’m gonna go do my thing
Unless your helping then go
THAT’S A JOKE IT’S A JOKE
Victim: Ok good
Victim: Lmao
Offender: Fun fact
Offender: I said that to another person v
Offender: And then they helped
Victim: Oh yeah?
Offender: Yeah
Victim: Do you want me to?
12․There were then communications in which the defendant texted "where’s my lawyer” and said to the victim that it was up to her, and he was not telling her to help him. The victim said “well I don’t mind”, and the offender asked her if she knew how she would help. The victim suggested that, theoretically, she would send a picture. The offender said to her that he wouldn’t say no to this, but that “I want you to say you consent to this … meaning I have not forced you to do anything against your will … and no one is to hear about this”. The victim replied “well, theoretically if I DID do this, it would be a hundred percent be consensual”. The offender then said that he would have to give something in return if the victim wanted this.
13․The victim queried how would she be able to help, and the offender suggested sending a photo or video engaging in sexual activity. The offender then said that “Daddy has an idea” and suggested that they use FaceTime and a live video of them “jerking off”. He said to the victim “call when your ready”.
14․It can be inferred from the messages that there was then a video call between the offender and the victim, after which the offender sent a sexually explicit message to the victim, and referred to her as “baby girl” and “sexy”.
15․The facts provide that the offender and the victim then continued talking daily, with conversations regularly of a highly explicit sexual nature. Conversation topics included:
(a)They discussed what they might do if they were to meet in person, such as making out, the offender slapping the victim on the buttocks, and discussed sexual activity that the offender was interested in;
(b)On one occasion, they discussed Onlyfans and the offender stated “I wanna be on your onlyfans with you Making content”. They then discussed that it was illegal to do things in person ‘at this age’;
(c)They discussed that if one of them was to get into a relationship, they would need to stop ‘dirty talking’. The offender recognised that “they can’t date”, but stated “but you will always secretly be my little pet”;
(d)In relation to the offender ejaculating in a scenario described by the victim, the offender told her [redacted].
16․The communications included:
[Redacted].
17․On at least one further occasion, the offender requested that the victim call him while masturbating to engage in “dirty talk”.
18․The offender and the victim also discussed arrangements for meeting up, including exchanging addresses and the viability of the offender visiting and staying in his car or a nearby caravan park. On another occasion, the offender sent the victim clips of “cheap places to live” near to her. The offender asked the victim what her sexual fantasies were, which she told him, and the offender responded “yeah, I think in June we can work something out”. The offender said he would have to get the victim “on the pill”.
19․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.
CAN 2024/7755: Use carriage service to cause child abuse material to be transmitted to self
20․During the conversations, at various points the offender requested, and received, child abuse material from the victim in the form of images of herself, and text-based descriptions of sexual activity between them, being:
(a)The exchange set out above at [13], which involved the offender describing the nature of the image he would like to see as “the person would like to see the person sending the photo or video of them touching there private parts either tits or pussy (theoretically)”;
(b)On another occasion, the offender asked “do you wanna help me jerk off and we exchange nudes”. The offender subsequently sent an explicit image of himself. The victim then sent a topless picture. The offender then asked to see pictures of the victim’s vagina, stating [redacted];
(c)On at least six further occasions, the victim sent the offender images of herself that constituted child abuse material, being images of her breasts or vagina. The offender actively encouraged the sending of this material, for example when she asked if he wanted to see more, he said yes, and on another occasion, he stated [redacted];
(d)On at least two occasions, the offender asked the victim to describe sexual activity between the two of them, including:
(i)[redacted]; and
(ii)[redacted].
On each of these occasions, the victim subsequently described a detailed sexual scenario, with input from the offender. These conversations constituted child abuse material.
CAN 2024/7756: Use carriage service to transmit child abuse material
21․During the conversations, the offender at various points described detailed sexual scenarios involving himself and the victim, constituting child abuse material. This included descriptions of oral, digital and penetrative sexual activity. For example:
(a)The offender described reaching under the victim’s skirt and touching her genitalia before taking her to the bathroom to engage in oral and penetrative sexual activity;
(b)The offender stated that he wanted to make the victim [redacted];
(c)The offender described [redacted];
(d)The offender described [redacted];
(e)The offender stated [redacted];
(f)The offender stated [redacted];
(g)On one occasion, the offender described [redacted]; and
(h)The offender stated [redacted].
Arrest and record of interview
22․On Tuesday 27 June 2023, police attended at the offender’s address in the ACT, and approximately an hour later, the offender attended at the police station. The offender agreed to participate in a record of interview. The statement of facts provides that the offender stated:
23.1. He used to be in a relationship, but ‘sadly’ wasn’t anymore.
23.2. He ‘somewhat’ recalled the text messages with the [victim].
23.3.He met the [victim] playing Fortnite, which is an online game. They don’t talk anymore. They started communicating as friends, then the conversation led one thing to another.
…
23.5.The [victim] lives in [redacted]. He hasn’t spoken to her in ages. He doesn’t know much more about her, just her name. She has [redacted: colour] hair and [redacted: description of facial features].
23.6.When they first started talking the [victim] said she was 16 and later told him she was 13.
23.7.He didn’t remember when they first started talking. He remembered meeting her on Fortnite and that’s how they got to know each other. They communicated on Fortnite via voice chat. They talked about ordinary things, like how they were and about the game.
23.8.They communicated on Fortnite for about 2–3 weeks and then started texting each other. He didn’t remember whose idea it was or when it was. It was probably the start of 2022. When they were talking on Fortnite the [victim] said she was 16 and on the voice chat she sounded 16. The offender was 17 at that time.
23.9. They never met in person.
23.10. They didn’t text every day. Nothing started until 6-8 months later. They then started talking and ‘one thing led to another’ and ‘something sparked’. Things ‘developed’ in November/December 2022.
23.11.He was going through mental health issues at the time and she was there for him.
23.12.They were both in a ‘sexual mood’ and one of them suggested they ‘have some fun’. They both consented to sending explicit pictures to each other. He doesn’t remember who initiated it.
23.13.He sent her pictures of his male genitalia from his phone. She sent him pictures of her female genitalia.
23.14. They didn’t exchange pictures of their faces.
23.15. They exchanged videos of themselves masturbating.
23.16.He can’t remember when the [victim] said she was 13, but she called him and told him that she had been lying a bit and her real age was 13 (this was not their first phone call). He didn’t talk to her for a bit after that, he called her and confronted her, said she shouldn’t have done that. He felt like he had been used because she had lied. He knew he could get in a lot of trouble.
23.17.He explained what he understood the law to be: the age of consent is 16 for sexual intercourse, and for sending images, when both consent and don’t share amongst other people the age is 18 or 21 or 16. They both consented, and he thought she was 16. He didn’t know whether it was legal for a 16 year old to send explicit images to an 18 year old.
23.18. It is completely unacceptable for a 13 year old to send images.
23.19. Once he knew she was 13 they talked less and less.
23.20.One day she disappeared – he thinks that was in December. They have had no contact since.
23.21.There were plans to meet up. They talked about having sexual contact, meaning sexual intercourse. He didn’t think they would go through with it, he thinks he would’ve cancelled because it wouldn’t have been safe. This was discussed in November, when they were sending each other explicit stuff.
23.22.She said she was 13 near the end of December, it was after boxing day.
23.23.After January, they stopped talking.
23.24. He thinks she could get in trouble for impersonating a 16 year old.
23.25.He doesn’t have any of the messages anymore because he got a new phone and wiped his old phone.
23.26.Police showed him a picture of him and he said that was probably his first day at [redacted: employee location] but this wasn’t clear because there was some confusion over when he got his uniform.
23.27.Police showed him the conversation where [the victim] said she was 13 and [the offender] said he didn’t remember that.
23․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.
24․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.
25․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.
26․The offender was summonsed in relation to the offending and has spent no time in custody.
Assessment
27․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.
28․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.
29․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.
30․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.
31․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.
32․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.
33․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
34․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.
35․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.
36․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
37․The offender is almost 21 years of age, and was aged 18 years at the time of the offending.
38․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].
39․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.
40․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.
41․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.
42․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.
43․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].
44․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.
Psychological assessment
45․A psychologist assessment of the offender was prepared, with a report dated 8 October 2024 by psychologist Mr Tom Sutton tendered on sentence.
46․The psychologist finds that, on a brief assessment of cognitive capacity, the offender is average to high average intellectually. His emotional and personality assessment indicates that he has a current major depression, with some suicidal ideation and traumatic anxiety. It is described that there are strong indications that the offender may suffer from a persistent low-grade depression. His self-perception varies from states of harsh self-criticism and severe self-doubt to periods of relative self-confidence and intact self-esteem. His clinical profile includes features of hopelessness and helplessness, and an increased risk of self-harm.
47․There was no submission that the offender’s mental health, [redacted], contributed to the commission of the offence in a material way, but rather it was submitted that it is informative as to the general subjective circumstances of the offender. I accept this. I also accept the submission made on behalf of the offender that his mental health has a level of relevance as to any period in custody that the offender might experience.
Plea of guilty
48․The offender pleaded guilty in the Magistrates Court on 29 August 2024. The plea is described as having been entered at the very first opportunity, without a brief of evidence being required. The matter was committed to the Supreme Court for sentence. The submission was made that there was a strong Crown case, but no submission was made that no significant reduction was warranted on a basis that the Crown case was overwhelmingly strong: s 35(3) Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). I accept that significant utilitarian value arises and the usual practice for a plea of that nature, as applies in this jurisdiction, is warranted: s 16A(2)(g), (f) Crimes Act 1914 (Cth) (Crimes Act); s 35 Sentencing Act; Robertson v DPP [2024] ACTCA 26 at [23].
49․As to whether there is a need to specify the reduction that applies per s 37 of the Sentencing Act, a review of authorities in this jurisdiction that have been concerned solely with the sentencing of Commonwealth offences suggests differences in approach. Earlier decisions appear not to have done so, but more recently, the Court of Appeal (see, e.g. Henderson v The King [2024] ACTCA 3; Manyathela v The Queen [2015] ACTCA 13) and numerous Supreme Court authorities have specified the reduction. I consider it appropriate to specify the reduction that applies here, it being 25 per cent.
Contrition
50․As to the degree that the offender has shown contrition (s 16A(2)(f) Crimes Act), there are a number of sources of information known to the Court. There is firstly the early plea of guilty as already observed, albeit the Crown case was strong.
51․The next is that the offender did voluntarily attend at the police station and participated in a record of interview. He accepted responsibility for the offending. However, there are aspects of the interview that are of concern, at least as at the time of the interview in June 2023. Even accounting for the offender being mistaken about matters, his responses to the police do not demonstrate a depth of remorse or insight into his role in the offending, as the adult in the conversations. As the Crown submitted, the offender has tried to minimise and justify his offending behaviour.
52․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.
53․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
54․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).
55․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.
56․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.
57․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.
58․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.
59․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
60․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].
61․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.
62․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.
63․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.
64․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
65․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).66․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.
67․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.
68․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.
69․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.
70․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.
71․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
72․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.
73․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.
74․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.
75․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.
76․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.
77․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.
78․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.
79․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.
80․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.
81․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
82․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 Act1914 (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].
Corrigendum
83․Following the delivery of reasons and the making of sentencing orders in this matter, an in chambers order was made on 6 June 2025, pursuant to r 6906 of the Court Procedures Rules 2006 (ACT), to rectify an error in the charge numbers.
84․The orders as set out above at [82] reflect the orders as rectified on 6 June 2025. The charges set out in [3] have also been amended to reflect the corrected orders.
| I certify that the preceding eighty-four [84] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen. Associate: Date: 18 June 2025 |
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