R v Tan (No 3)

[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

5. 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.

6. 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 of birth is [redacted].

3. In the period June 2021 to July 2021:

1. the offender was 25 years old;

2. the victim was 12 years old; and

4. In June and July 2021, the offender had possession of intimate videos and photographs of the victim.

5. Between 1 and 2 July, the offender threatened to disseminate intimate images of the victim without consent by threatening to print:

1. the victim’s intimate images and the victim’s face on a poster and sticking it to the front gate of the victim’s school; and

2. the victim’s intimate images and the victim’s face on a pamphlet to be distributed.

6. the offender made threats to the victim in the following messages that were sent to the victim via Instagram:

• “and to your school”

• “dw I got it too hehehe”

• “even printed a poster that I will stick to with your face in it”

• “and stick in it infront of your school gate fucker”

• “and send all the pamphlets with your face and pussy spread :)”

• “I warned you already and you didn’t listen so now Imma fuck you up :)”

• “Goodluck :D”

• “Harsh hey”

7. On 2 and 3 July 2021 the offender conducted internet searches about the victim’s school and visited the school website several times.

8. On 15 July 2021 the offender was arrested and his phone was seized. Upon analysis, police located 6 intimate videos and 18 photographs of the victim on the offender’s phone.

Other matters

9. In his ERISP (the edited transcript of which was MFI 8 at trial), it was indicated that the offender:

1. recognised he had threatened to send photographs he had screenshotted when she was video calling him;

2. said that he and the victim had a ‘chemistry’ between them (A 128);

3. was angry and frustrated with the victim not talking to her. The threat was intended to elicit a response from the victim (A 324, A 418) and intended to scare her into giving (him) more attention (A 446)

10. At trial, the offender:

1. admitted that upon his arrest, he disclosed to police that he had threatened the victim with the ‘sexual contents’ she had sent to him (T 142.31);

2. one of the reasons for deleting the emails was that he “got disgusted

3. explained that when he told interviewing police “As much as I say things, I don’t do it”, he thought that (his) words had no meanings’ (T 156);

4. said that part of the reason why he deleted the ‘conversations’ with the victim on his phone was because of the threats he made to her (T 247.2);

5. although at trial, he referred to having an ‘emotional’ connection to the victim (T 109, 124-125), a ‘romantic’ relationship (T 226.35) and being ‘in love’ with her (T 226.41) in my reasons of 26 June 2023, I indicated that this evidence was implausible and detracted from his general credibility (Verdict reasons, paragraphs 154, 157). For him the sex was impersonal. He was a sex addict who had told interviewing police (A 152) interacted with the victim purely for sexual interactions; to gratify his own sexual needs (A 510).

11. As a sentencing judge, contrary to the usual position of jury verdicts, I have the benefit of calling upon findings made in the trial that go beyond simply findings regarding the essential elements of the offences.

12. I accepted, on the probabilities, that the offender believed that at the time of the offending, the victim was 16, turning 17 years of age. It is also apparent from the reasons that he knew that she was a school student.

13. What is more, there were indications that he knew that the victim was both troubled and in love with the offender. As to the former, there were references in her Instagram messages (Exhibit J at trial) to the offender to her “problems” (at 3:03pm and 3:12pm on 30 May 2021). There were other objective signs of her problems which her apparent to him: her sending intimate photos of herself not only to the offender (22 May), but also previously to other males (which had piqued the offender’s curiosity), which was another sign. He also understood that she was having difficulties with her mother – her sole carer - (which, although not known to the offender, were touched upon in the mother’s witness statement at trial: Exhibit R).

Objective seriousness of offending

14. There is little authority on the types of circumstances that typically weigh on sentencing for the instant offence. I could find no decision of the Court of Criminal Appeal and only four sentencing decisions in this Court (none of which were published) and in respect the only real ‘case characteristics’ identified in the JIRS Statistics were directed towards the subjective circumstances of the offenders. It is likely that this may be because of, as Counsel for the offender observed, the maximum penalty for this offence, which may explain why most such cases are dealt with in the Local Court.

15. Uninstructed by authority, it strikes me that relevant circumstances would include:

• the relationship between the offender and the victim;

• the nature and seriousness of the threat (including its scope and how realistic its implementation could reasonably have been viewed by the victim);

• the number of threats;

• the likely and actual effect of the threat on the victim;

• the offender’s motive for the threat; and

• the extent of planning or impulsivity in which the threat was made.

16. The Crown emphasised that the offender told the victim that he had printed a poster with her intimate images; that what was threatened to be distributed was an image of the victim’s vagina with her face; that the place for threatened distribution was the victim’s school (by affixing the poster to a school gate and by pamphlet), that the threats were made over two days and the offender knew that the victim was aware that he had her intimate images (including photographs and videos). The Crown also referred to the victim’s age and the offender’s conduct in conducting internet searches.

17. The offender acknowledged the (real) age differential between the victim and the offender, whilst fairly pointing out that he believed she was over 16. But he also acknowledged that she was a school student who lived with her mother and younger sister. His counsel noted that the victim had sent him a number of intimate photos of herself. The offender became angry when she stopped communicating with him and believed that she was communicating – indeed sending intimate images of herself – to other young males. The offender accepted that the threats made to the victim would have caused significant fear and alarm. The offender’s Counsel did, however, note that the offender did not carry through with other threats made.

18. The matters that impressed me, in particular, were the age differential between offender and victim – who the offender believed was a ‘minor’ (i.e. under 18). He had tertiary qualifications and a position of some responsibility in the workforce. He had a car. She was a school student. The offender was on notice of a yearning in the victim for an emotional connection. This, and his own possession of intimate images which the victim had sent her, placed her in a position of vulnerability and him in a position where he could exploit her for his own sexual needs. For a young school student whom he still believed was at high school and – even worse – someone who he believed was studying for the HSC and had aspirations to attend university - he would have known how sensitive distribution to her school would have been to her, given the prurient interest many teenagers have for their classmates sexual lives.

19. There was some level of planning in the form of internet searches into the victim’s school, although it was not significant in scope and was not sophisticated. Further, the threats endured over two days.

20. The threat was not far-fetched but was realistic: there was no doubt that the offender had the means to implement it. The victim (who did not give evidence at the trial) prepared a victim impact statement. This was not read at this hearing. She described the effect of the offending as having deeply affected her sense of safety, security and well-being. She elaborated that she lived in a continuing state of anxiety since finding out about the threats. She said she felt scared to go to school because of the worry he might hang those pictures of her for everyone to see. In addition to making her anxious at school, it was distracting for her in terms of her school work and enjoyment with being with friends. She felt that she was stuck in a never-ending cycle of fear and uncertainty. None of what she described could be regarded as an unexpected reaction to the threat that occurred.

21. The offender had shown a propensity to coerce the victim through his Instagram messages on 30 May 2021, in Exhibit J at the trial, by ‘verbally’ abusing the victim on social media. I consider that he had a tendency to engage in coercive conduct when he did not get his own way.

22. The offender’s offending was objectively very serious.

Aggravating circumstances

23. I have already referred to the feature of the victim’s situational vulnerability.

24. The Crown correctly disclaimed any suggestion that the statutory aggravating factor in s 21A(2)(g) was engaged.

The offender’s subjective case

Age

25. The offender was 25 years of age at the date of the offending.

Background

26. Very little appears in the evidence about the offender’s background. In his Counsel’s written submissions, reference is made to his migrating to Australia in 2008 when he was 12 and his living with his parents and three siblings.

Mental condition

27. In his ERISP, the offender told police about his high sex drive, sexual needs and compared his requirement for sex to a drug addict’s requirement for drugs. What he had said in his ERISP was the subject of objection at trial, but that objection was overruled. As indicated, it struck me during the course of the trial that he was minimising the influence of this condition; rather trying (implausibly) to convince me of his emotional connection and love for the victim.

28. For the purpose of this offence, however, his sex addiction may provide an explanation for some of the context, but it is immaterial to the circumstances of his threat to distribute the images to others.

29. In this sentencing hearing, the offender (through his Counsel) attributed his conduct to anger and frustration with the complainant. There was no expert evidence of a mental health professional to explain the underlying sources of such anger and frustration. I find that it evinced jealousy and a controlling disposition in the offender. There is, in short, no real basis for applying principles of Muldrock[1] or De La Rosa[2] . As I note later, there was no evidence of any treatment the offender has since taken to control or manage his sexual urges.

    1. Muldrock v The Queen (2011) 244 CLR 120

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

Antecedents

30. The offender has no prior criminal record. This entitles him to a degree of leniency for being a first time offender and has some weight in the sense of a reduced need for specific deterrence and enhanced prospects for rehabilitation.

Prior good character

31. I directed myself in my reasons for verdicts that the offender was of good character, but only in the particular respect of an absence of prior convictions (J[114]-[116]). The Crown nevertheless accepted that he can, for sentencing purposes, be treated as having prior good character.

32. The offender’s mother supplied a statement to the Court, which partly took the form of a testimonial. Reference was made to her belief in the offender (along with her other children) being kind and respectful. This evidence is, with no disrespect, had little weight given that it comes from his mother who has a natural love of the offender. The statement did not acknowledge the commission of the offence. Kindness and respectfulness was manifestly not exhibited by the offender to the victim in this case.

Plea

33. The offender was committed for trial on 29 June 2022. A plea of guilty for the index offence was entered on 8 September 2022.

34. The Crown submitted that in accordance with s 25D(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’), the offender is entitled to a 10% discount.

35. In his written submissions, the offender did not address the appropriate level of discount. At the sentencing hearing, the offender did not dispute the quantum of discount which the Crown proposed.

36. The offender is entitled to a 10% discount on his guilty plea.

Contrition or remorse

37. For the purposes of the sentencing hearing, the offender prepared a letter of apology. He purported to express how remorseful and deeply apologetic he was. He acknowledged the emotional abuse in the victim resulting from his conduct. He says he has been conscious of his wrongdoing, especially through the period already spent under incarceration.

38. However, I have to reconcile these written statements (he did not elect to give evidence at the sentencing hearing) with adverse credibility findings I made of him at trial in my reasons for verdicts (J[150]-[157]).

39. Not without some doubt, given the very self-serving nature of the ERISP and his evidence in trial, I accept, on the balance of probabilities, that the offender is contrite and remorseful, however this is limited since, as I will point out momentarily, no evidence is before the Court of his taking any steps to address the causes of his offending.

Rehabilitation prospects

40. Unusually, no sentencing assessment report or mental health professional’s report was before the Court.

41. There was nothing in his letter of apology to suggest that, beyond learning lessons whilst enduring his period of custody, that the offender has done anything to manage either his high sexual drive or needs or manage the anger that were the underlying conditions contributing to his offending. As the Crown noted, at the trial, the offender had accepted (T 253.19) that he had not sought professional assistance in 2021.

42. His parents and at least one of his siblings are supportive of the offender and, as indicated in his Counsel’s written submissions, he lives with them. One of his brothers gave evidence for him at the trial. Either or both of his parents and a brother attended Court at trial in support of him. I do not now recall the presence of his two younger sisters at the trial.

43. At trial reference was made to his employment and in his written submissions, it was noted that he was employed by Speedex as a biology scientist prior to his arrest.

44. As noted, the offender’s mother supplied a written statement in which my impressions of her support for the offender were affirmed. Mrs Tan referred to his working in the family restaurant business whilst he was on bail and his working in his auntie’s business as an administrator.

45. She referred also, amongst other things, to his working out in a gym and reading to help pass the time.

46. I have already noted that he is a first-time offender and has demonstrated contrition (albeit to a limited degree).

47. I regard his prospects of rehabilitation as reasonable.

Likelihood of re-offending

48. I referred earlier to the offender’s self-perception of his being a sex addict with such a high sex drive. There was, however, no objective professional opinion that commented on the likelihood. Specifically, there is no evidence that any continuing sex drive would likely manifest itself in repeats of the particular offence to which he has pleaded guilty to.

49. His Counsel submitted that in view of the period of incarceration he has endured, he would be most unlikely to reoffend in respect to this type of conduct or any other criminal matter. There is force to this submission. The Crown re-emphasised his not seeking professional treatment, which although true, does not grapple with the question of recidivism in relation to an offence coming before the Court.

50. The custodial history indicates that the offender has behaved himself whilst in custody. Since his release from custody in September 2022, he has complied with strict bail conditions.

51. In my view, the likelihood of his reoffending is low.

Hardship

52. A final part of the offender’s mother’s statement appeared to have the forensic purpose of establishing the help that the offender gives to her to help her get to her medical appointments and even financial support. Such circumstances are not ‘exceptional’ in the sense of militating against the imposition of a custodial sentence if I regarded that as otherwise warranted, but it is some evidence that I have had some (very limited) regard to.

Instinctive synthesis

53. I take into account the maximum penalty for the offence. To repeat, I also take into account the 10% discount on the guilty plea.

54. I also take into account the circumstance that the offender, not having any prior convictions, has already served a period of over 14 months (1 year, 2 months and 5 days) in custody in relation to a bundle of charges which, aside from the index offence, he was found not guilty of. This prior period of custody is significant from the perspective of the fulfilment of the sentencing consideration of specific deterrence.

53. I take into account the considerations in s 3A of the CSP Act. For an offence of this kind, it is important that general deterrence, adequacy of punishment, specific deterrence, denunciation and retribution holding the offender to account and imposing a penalty that reflects the harm to the victim are given force although, as indicated a moment ago, in the particular circumstances the force to some of those considerations is moderated by the period that the offender has already spent in custody.

54. The offender’s Counsel submits that the s 5 threshold has not been crossed. Rather, a Community Release order without conviction, under ss 9(1)(b) and 10(1)(b) of the CSP Act is appropriate. Amongst other things, he agreed that the maximum penalty was such that, in isolation, in all probability, the charge would likely have been dealt with in the Local Court.

55. The Crown submitted that the s 5 threshold is crossed. It acknowledged (whilst being neutral on the question whether such a finding should be made) that a finding of special circumstances was discretionary.

56. I do not consider that a conditional release order is appropriate under s 10. The offender’s Counsel accepts that the offending is not trivial. Although there were some positive features in the offender’s case, regarding the absence of antecedents, good character and the offending occurring when he was at a still relatively young age, there was no mental condition impairing the offender’s capacity to desist from offending. There were no extenuating circumstances.

57. When weighing the option of imprisonment, it is axiomatic that I have to be satisfied that, having considered all other alternatives, no penalty other than that particular option is appropriate.

58. The offence to which the offender pleaded guilty is distinct from the other offences for which he was determined to be not guilty, as is manifestly apparent from the substantial correspondence between the agreed facts for sentencing and the agreed facts that were before the Court at the trial, the facts underlying all of the charges arose substantially from a common substratum of fact, and it was the combination of all the charges that gave rise, without real distinction, to the offender being detained for a significant period of time.

59. It remains my task to ensure that the punishment for this offence is adequate, or proportionate to the nature of the offending. I acknowledge that the objective circumstances are serious and the harm to the victim, but I have regard to his guilty plea, the offender’s age, the circumstance that he is a first-time offender, his good character, and my assessment of his rehabilitation prospects, and the circumstance that specific deterrence is moderated by the time he has spent in custody which, for a 25 year old, is significant; considering as it has coincided with the restraints from the Pandemic.

60. Not without reservation, I am not persuaded that the s 5(1) threshold has crossed.

61. Instead, I am inclined to think that a community corrections order under s 8 of the CSP Act would be appropriate.

62. In terms of the period of that order, in my view, it is also appropriate to recognise the time the offender spent in custody. Taking that into account, I consider that the appropriate length would be 10 months. The standard conditions would apply.

63. Having heard from the legal representatives for both the Crown and the offender I am inclined to add a community service work condition, however that condition cannot be imposed unless a sentencing assessment report is obtained indicating that the offender is suitable to be made the subject of such a condition (s 89(4) of the CSP Act). I agree with the offender’s Counsel that it is far from clear that a rehabilitation condition would be appropriate having regard to the nature of the index offending.

64. It is appropriate, therefore, to direct that such a report be obtained and to adjourn the sentencing proceeding until it is procured, and then allowing the parties the opportunity to make further submissions about the suitability of that condition.

65. Bail is to continue in its current terms.

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Endnotes

Decision last updated: 07 August 2023