R v Tan (No 3)

Case [2023] NSWDC 298

District Court


New South Wales

Medium Neutral Citation: R v Tan (No 3) [2023] NSWDC 298
Hearing dates: 21 July 2023
Date of orders: 21 July 2023
Decision date: 21 July 2023
Jurisdiction:Criminal
Before: Abadee DCJ
Decision:

See paragraphs 66 – 67

Catchwords:

CRIMINAL LAW – sentencing – threat to distribute intimate images of victim – offender in sexual relationship with victim – offender honestly and reasonably believed that the victim was a child aged over 16 but was actually 12 – relevance of period spent in custody in connection with the index offence and other related offences

Legislation Cited:

Crimes Act 1900 (NSW) ss 66C, 91H, 91R

Cases Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 8, 9, 10, 21A, 25D, 89

DPP (Cth) v De La Rosa (2010) 71 NSWLR 1

Muldrock v The Queen (2011) 244 CLR 120

R v Tan (No.2) [2023] NSWDC 228

Texts Cited:

Nil

Category:Sentence
Parties: Office of the Director of Public Prosecution (ODPP)
R Tan (offender)
Representation:

Mr S Richards for the ODPP
Mr D Stewart for the offender (Counsel)

Solicitors:
ODPP
Ross Hill Solicitors for the offender
File Number(s): 2021/00203497
Publication restriction: Non-publication order in relation to the complainant’s name

REMARKS ON SENTENCE

Background

  1. On 26 June 2023, following a trial by judge alone, I found Reinier Allen Tan not guilty of 5 counts on an indictment. Those charges raised allegations of under-age sexual intercourse with a child above the age of 10 but under the age of 14 (contrary to s 66C(1) of the Crimes Act 1900 (NSW)) and 3 counts relating to the production or possession of child abuse material (contrary to s 91H(2) of the Crimes Act). The reasons for my verdicts have been published on Caselaw (R v Tan (No.2) [2023] NSWDC 228).

  2. After I announced my verdicts, the Crown indicated that Mr Tan, who I will henceforth refer to as the offender, had earlier pleaded guilty to a separate charge. The plea was entered on 8 September 2022.

  3. The charge to which he pleaded guilty is that on about 1 July 2021, at Guildford in the State of New South Wales, the offender threatened to distribute intimate images of the victim, without her consent, intending to cause the victim to fear that the threat would be carried out, contrary to s 91R(2) of the Crimes Act.

  4. The maximum penalty for this offence is 3 years’ imprisonment and/or 100 penalty units. There is no standard non-parole period.

The facts and circumstances of offending

Agreed facts

  1. The Crown tendered a document titled ‘Statement of Agreed Facts’. By his Counsel’s written submissions (MFI, paragraph 4), the offender did not dispute them. At the sentencing hearing, the offender said he had seen this statement of agreed facts and he agreed with them. He also adhered to his guilty plea.

  2. The facts in the document before the Court were as follows:

  1. the offender’s date of birth is [redacted].

  2. the victim’s date…

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Details
AGLC
R v Tan (No 3) [2023] NSWDC 298
Case
[2023] NSWDC 298
Decision Date

CaseChat Overview and Summary

In the matter of R v Tan (No 3), the respondent was charged with contravening sections 92AB and 92AC of the Crimes Act 1900 (NSW) by threatening to distribute an intimate image of a victim with the intent to cause distress. The respondent had been in a sexual relationship with the victim, who was actually 12 years old but whom the respondent honestly and reasonably believed to be over 16 years of age. The respondent was convicted and sentenced to imprisonment, and subsequently appealed against the sentence. The Court of Criminal Appeal was required to consider the appropriate weight to be given to the period the respondent had spent in custody in connection with the index offence and other related offences.

The court considered the appropriate weight to be given to the period spent in custody, taking into account the need to ensure that the sentence reflected the seriousness of the offending and the need to avoid excessive punishment. The court noted that the respondent had already spent a significant period in custody and that this should be given weight in determining the appropriate sentence. The court also noted that the respondent had shown remorse and had taken steps to address his offending behaviour. However, the court found that the gravity of the offending, which involved the sexual exploitation of a child, outweighed the need to take into account the period spent in custody.

The court concluded that the sentence imposed by the primary judge was appropriate and did not need to be altered. The appeal was dismissed and the original sentence was upheld. The court noted that the sentence reflected the seriousness of the offending and took into account the need to avoid excessive punishment. The court also noted that the sentence provided an opportunity for the respondent to address his offending behaviour and to take steps to prevent reoffending.

The court ordered that the appeal be dismissed and that the sentence imposed by the primary judge be upheld. The court also ordered that the respondent be released on parole on the conditions set out in the judgment.

Orders

Orders of the court

See paragraphs 66 – 67

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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