Director of Public Prosecutions v Chen
[2020] VCC 385
•30 March 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-00366
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHIH CHEN |
---
| JUDGE: | HIS HONOUR JUDGE CAHILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 March 2020 |
| DATE OF SENTENCE: | 30 March 2020 |
| CASE MAY BE CITED AS: | DPP v Chen |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 385 |
REASONS FOR SENTENCE
---Subject:
Catchwords: Child sex tourism – 34 federal offences – one charge of possess child pornography – 26 child victims – 7-year period of offending in the Philippines – 52 years old – guilty plea– no criminal history – extremely serious offending – overall sentence of 18 years 6 months imprisonment – effective non-parole release period of 14 years
Legislation Cited:
Cases Cited:
Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Breckweg | |
| For the Accused | Mr B. Johnston | |
| (For Plea) | ||
| Mr F. Ralph | ||
| (For Plea and Sentence) |
HIS HONOUR:
1Chih Chen, on 11 March 2020, you pleaded guilty to 34 overseas sexual offences against children. They are 12 charges of producing child pornography material outside Australia, eight charges of encouraging a person to engage in conduct to procure children to engage in sexual activity outside Australia, three charges of engaging in persistent sexual abuse of a child outside Australia, seven charges of engaging in sexual intercourse with a child outside Australia, three charges of procuring a child to engage in sexual activity outside Australia and one charge of importing tier two goods comprising child pornography into Australia. You also pleaded guilty to a charge of possessing child pornography.
2The charge of possessing child pornography is a state offence, the other thirty-four charges are federal offences.
3The circumstances of your offending are set out in a compendious Crown plea opening, Exhibit A. They are agreed facts.
4In summary, between 15 May 2010 and 10 June 2017, during 25 visits to the Philippines, in 33 separate episodes, you sexually abused 26 female children aged between 13 and 17 years.
5Your crimes fall into five categories.
6Firstly, producing child pornography material outside Australia; there are 12 charges. You photographed and filmed yourself engaging in acts of oral and vaginal penetration with 13 girls. Three of them, who were the victims of your persistent sexual abuse, were aged between 13 and 15 years. Ten were aged between 15 and 17 years and you also filmed yourself engaged in sexual activity, not sexual intercourse, with a 14-year-old girl.
7Charge 1, victim one. Between 15 May 2010 and 5 January 2011, you filmed and photographed yourself in sexual activity with victim one when she was 17 years old, on seven occasions, during three trips to the Philippines. One video shows you orally penetrating her with your penis and ejaculating into her mouth. You produced 175 files of child pornography.
8Charge 24, victim two, who was also the victim of Charge 23, persistent sexual abuse. Between 8 September 2014 and 27 May 2017, you filmed and photographed yourself orally, vaginally and anally penetrating victim two with your penis. When she was aged between 13 and 15 years old, you met with her six times. At the first meeting, when she asked you not to take pictures you ignored her and filmed your sexual abuse of her.
9At the second meeting when you vaginally penetrated her with your penis, as you said it was the first time that you had done it with her, she was covering her eyes with her hands and appeared upset and/or in pain. At the fifth meeting you penetrated her orally, vaginally and anally with your penis and, when she was 16 years old, at another meeting, you filmed and photographed yourself in sexual activity with her.
10One video shows you attempting to anally penetrate her with your penis. She looks to be in pain. You said that once you were in, 'It will open okay'. You produced 230 files of child pornography when she was under 16 years of age and 32 files of child pornography when she was 16 years old.
11Charge 18 concerns victims three, four and five. It is a rolled-up count and spans the period 2 May 2013 to 28 August 2013.
12Between 2 and 3 May 2013 you filmed and photographed yourself orally and vaginally penetrating victim three with your penis. She was 15 years old.
13You produced 63 files of child pornography. In one video the child had a gag reflection reaction as you moved your penis in and out of her mouth.
14Between 1 and 15 May 2013 you filmed and photographed yourself orally and vaginally penetrating victim four with your penis. She was 16 years old and you produced 40 files of child pornography.
15Between 26 and 28 August 2013 you filmed and photographed yourself orally and vaginally penetrating victim five with your penis. She was 17 years old and you produced 81 files of child pornography.
16Charge 25, victim six. Between 6 and 7 October 2014 you filmed and photographed yourself orally and vaginally penetrating victim six with your penis. She was 16 years old. You produced 74 files of child pornography. In one video she hid her face throughout and told you she did not want to be filmed. You said, 'I don't like sex without video', and you filmed her.
17Charge 26 relates to two victims. It is also a rolled-up count and it spans a period from 6 to 18 September 2016.
18Between 6 and 18 September 2016, when you visited the Philippines, you filmed and photographed yourself orally and vaginally penetrating victim seven with your penis and penetrating her vagina with your tongue, when she was 16 years old. You produced 162 files of child pornography.
19On the same trip, between 7 and 8 September 2016, you filmed and photographed yourself orally and vaginally penetrating victim eight with your penis when she was 15 years old. You produced 70 files of child pornography.
20Charge 3, victim nine. On 1 August 2010 you filmed yourself engaged in sexual activity, not involving penetration, with victim nine, who was 14 years old, and another female child. The film shows you moving your penis towards victim nine's vagina. When she covered her vagina with her hand and closed her legs and said, 'I don't like sex, I'm a virgin', you replied she was making you unhappy.
21Charge 11 relates to victim 13. On one visit, between 3 and 4 May 2011, and a second visit, on 11 February 2012, you filmed yourself orally and vaginally penetrating victim 13 with your penis. She was 16 to 17 years old and you produced 20 files of child pornography.
22Charge 8, victim 14, who was also the victim of Charge 7, your persistent sexual abuse of her. Between 25 March 2011 and 8 April 2014, on 12 occasions, you filmed and photographed yourself orally, vaginally and anally penetrating victim 14 with your penis.
23On five of those occasions she was 14 and 15 years old and, on seven of those occasions, she was 16 and 17 years old. You captured the child pornography in 379 files. One file shows you masturbating and when you ejaculated into her mouth, she had a gag reflex reaction. In another file, when you vaginally penetrated her with your penis, you said, 'Every night, day, day/night, you come home from school, we make love and you start sucking daddy's cock'.
24Charge 14 relates to victim 16. On 28 November 2012, when she was 17 years old, you filmed yourself penetrating her vaginally and orally with your penis. You produced four videos of child pornography. In one, while you were vaginally penetrating her, you were taking photographs and asked her to bring her school uniform the next night.
25Charge 20 relates to victim 17 who was also the victim of your persistent sexual abuse Charge 19. Charge 20 spans the period 25 November 2013 to 1 December 2016. Between 25 November 2013 and 18 June 2014, you filmed and photographed yourself orally and vaginally penetrating victim 17 with your penis, when she was 14 and 15 years old, during nine meetings with her on five trips to the Philippines.
26Between 30 November 2016 and 1 December 2016, when she was 17 years old, you filmed and photographed yourself penetrating her vagina with your penis.
27You produced 833 files of child pornography. One file shows you vaginally penetrating her with your penis. You told her to move her leg which was blocking you. After you had penetrated her, blood was seen on your penis. You ejaculated on her stomach. In another, she had her eyes closed and was grimacing while you masturbated in front of her. You told her to open her mouth and you ejaculated in her mouth and over her face.
28Charge 22 relates to victim 19. Between 12 June and 20 December 2014, during three trips to the Philippines, you filmed and photographed yourself orally and vaginally penetrating victim 18 with your penis when she was 17 years old. You produced 648 files of child pornography.
29Charge 31 relates to victim 21. On 8 December 2016 you filmed yourself orally and vaginally penetrating her when she was 16 years old. You produced 19 files of child pornography.
30You had stored 2659 videos and photos, which you had produced, on several digital devices.
31773 were Category 1 images, some of which depicted the girls wearing underwear and naked in sexually explicit poses.
321334 were Category 4 images which depicted you sexually penetrating the children's mouths and vagina with your penis. One video also shows you penetrating victim two's anus with your penis. Another film shows you ejaculating in their mouths and over their faces.
33The second category of offending relates to seven charges of engaging in sexual intercourse with a child outside Australia.
34You engaged in sexual intercourse with seven girls aged between 13 and 15 years and filmed and photographed your sexual abuse of them.
35Charge 5. You met with victim 11, who was aged 15 years, on 15 March 2011 for sex. You penetrated her vaginally with your penis. While you had her fellate you told her not to worry, that your sperm was clean. You asked her to open her mouth and used her hand to masturbate you. She did, and when you ejaculated over her face, you apologised and laughed.
36After that episode, you continued to communicate with her on Facebook. You asked her to keep in touch so that you could meet with her again. When she asked you for money for school you replied you would give her money when she stayed with you, 'Like before, but it's not nice to ask for money all the time'.
37Charge 10. You met victim 12, who was aged 14 years, on 26 April 2011 for sex. You used three cameras to record your penile penetration of her vagina. You also recorded yourself moving your penis towards her face whilst she was sleeping naked.
38After that episode, you messaged you would like to see her again. You sent her several inappropriately sexualised messages. You told her you would have had her stay with you longer if she could have done more “blow jobs” for you and you hoped she was “keeping her pussy fresh and nice and tight”. You also asked her, if she met with you again, whether she would let you ejaculate in her mouth and whether she had experienced anal intercourse.
39Charge 28. You met victim 15, who was aged 14 years, on 27 May 2017 for sex. The film you took shows she had a pained look on her face when you penetrated her vagina with your penis. You asked her to tell you she was 12 years old. She refused. You paid her 1500 Pilipino pesos for the sex.
40Charge 21. You met victim 18, who was aged 14 years, between 13 and 14 April 2014 for sex. She had told you she was a virgin and you said you would give her good money for her cherry. While you were thrusting your penis in and out of her mouth, as she knelt on the floor in front of you, you asked her whether she was really 14. She nodded, “yes” and, when you vaginally penetrated her, you told her to turn to look at the camera. During your filming, you called to another girl, victim 17, who was present nearby, and said you would be with her later.
41Charge 27. You met victim eight, who was 15 years old, between 7 and 8 September 2016 for sex. You penetrated her orally and vaginally with your penis and paid her 2000 pesos which was then approximately AUD$52.
42Charge 30. You met victim 20, who was 14 years old, between 26 and 27 November 2016 for sex. While she was performing oral sex on you, you told her you could not believe she was only 14 years old.
43Charge 33 is a rolled-up count. In relation to victim 22, you had sexual intercourse with her on two occasions. You met her when she was 13 years old twice, between 23 and 26 February 2019, and then, between 1 and 2 June 2019, for sex.
44Victim 21 had introduced her to you. On each occasion you penetrated her orally and vaginally with your penis. For the sex, during the first meeting, you paid her 4600 pesos, approximately AUD$120, and you paid victim 21, who procured her for you, 1700 pesos which is approximately AUD$44.
45While you were filming victim 22 fellating you and you then penetrating her vagina with your penis, you told her you could not believe she was only 13 years old. You asked her about her younger sister. You said that you would be very gentle if her younger sister would agree to have sex with you.
46You suggested she teach her younger sister to 'suck (your) cock'. You also asked whether her sister was a virgin.
47You paid the 14 and 15-year-old girls between 1500 pesos, approximately AUD$40, and 2700 pesos, approximately AUD$52, for sex. For the sex with the 13-year-old girl you paid 4600 pesos, approximately AUD$120.
48The third category of your offending is constituted by three charges of engaging in persistent sexual abuse of a child outside Australia.
49You persistently sexually abused three girls when they were aged 13, 14 and 15, that is, you engaged in sexual intercourse with them on three or more separate occasions. You filmed and photographed your sexual abuse of each of them.
50Charge 7 relates to victim 14 who was aged between 14 and 15 years. On five separate occasions, during three trips to the Philippines, between 25 March 2011 and 28 February 2012, you had sexual intercourse with her. Each time you penetrated her mouth and vagina with your penis.
51On three of those occasions you also penetrated her anus with your penis. After one episode you sent her a message, 'I really enjoyed the last time what we did. I finally put a bit of my cock into your little girl's arse'.
52Charge 19 relates to victim 17 who was aged between 14 and 15 years. On nine separate occasions, during five trips to the Philippines, between 25 November 2013 and 18 June 2014, you had sexual intercourse with her. Each time you penetrated her mouth and vagina with your penis.
53When you began communicating with her on Facebook Messenger, she told you she was in Year 8 at school. You enquired if she would do everything you asked. You told her you enjoyed a lot of 'blow job' and when you asked her about her sexual experience, she said she was not a virgin but, 'only one guy (had) fucked (her) and not many times'.
54In a later message, she told you, 'Don't say I'm a good girl but no choice. My mother have breast cancer. My virginity is pay me'. You paid her 2000 pesos, approximately AUD$50, for one episode of sex and larger sums, 19,800 pesos, about AUD$517, 23,800 pesos, about AUD$618, and 52,000 pesos, approximately AUD$1,347, when she stayed with you for sex for longer periods.
55Charge 23 relates to victim two who was aged between 13 and 15 years. On seven occasions, over six visits to the Philippines, between 8 September 2014 and 24 March 2017, you had sexual intercourse with her. Her cousin, who was victim one, introduced her to you. The first time you met her, when she was 13 years old, you penetrated her mouth with your penis.
56Following that episode, she messaged that she wanted to meet you again and asked you to give her a second chance. You replied she was difficult and not willing last time and asked her when you returned, was she willing to do everything you wanted.
57She said she would and would give her best. You met her six more times when she was 14 and 15. Each visit you penetrated her mouth and vagina with your penis several times.
58The fourth category of your offending relates to eight charges of encouraging an offence of procuring a child to engage in sexual activity outside Australia.
59You encouraged 15 young Pilipino girls and women, referred to as facilitators, some of whom you had sexually abused when they were younger, to procure girls aged under 16 for sexual activity with you.
60Charge 17. Between 7 March 2013 and 10 June 2017, you sent facilitator one, who was also victim one, text messages asking her to find girls between 12 and 15 years of age for sexual intercourse with you. She found girls, aged between 13 and 15, who did engage in sexual intercourse with you.
61Charge 4. Between 10 March 2011 and June 2017, you sent facilitator two text messages encouraging her to find young girls for sexual activity with you. She found two girls, victim 12, who was aged 14 years, and victim 11, who was aged 15 years, who had sexual intercourse with you.
62Between 19 March 2011 and 1 June 2017, you sent messages to facilitator three, who was also victim 13, encouraging her to find young girls for sex. In 2011, she introduced you to her younger sister, aged 14 years, who was chairman your brother victim 14, whom you persistently sexually abused and, in 2017, to another girl aged 14 years, who was victim 15, with whom you engaged in sexual intercourse.
63Between 20 January 2013 and 1 March 2015, you sent messages to facilitator four, who was also victim 16, encouraging her to find young girls for sexual activity. She communicated with you about four girls, but you did not meet with any of them. That is Charge 15.
64In relation to Charge 16, between 30 January 2013 and 4 June 2017, you sent messages to facilitator five, who was also victim five, encouraging her to find young girls for sexual activity. She introduced you to victim 17.
65Between 28 September 2016 and 10 June 2017, you sent messages to facilitator six, who was 18 years old, asking her to find young girls for sexual activity. She sent you photographs of a 14-year-old girl, but you never met her. That conduct constitutes Charge 29.
66As to Charge 32, between 8 December 2016 and 20 May 2017 you sent messages to facilitator seven, who was also victim 21, encouraging her to find young girls for sexual activity. You asked for the Facebook details and photos of girls.
67Charge 13 is a rolled-up count. Between 16 November 2012 and 7 June 201,7 you sent messages to eight women identified as facilitators eight to 15, encouraging them to find young girls for sexual activity. You asked them to find girls, ideally aged between 12 and 15 years, who were willing to have sex with you to earn some money.
68You offered payments to the facilitators if they found children for you.
69The fifth category of offending is constituted by three charges of procuring a child to engage in sexual activity outside Australia.
70You used Facebook and text messages to contact five Filipino girls, who were aged 14 and 15 years, to procure them to engage in sexual activity with you.
71As to Charge 9, between 23 April and 1 May 2011, you communicated with victim ten, who was 15 years old, initially by Facebook and, then, when you got her phone number, SMS. You invited her to stay with you at Pampanga for sexual activity. You asked her whether she was still a virgin; she said she wasn't. You wrote you would enjoy making love with her and a 'blow job'.
72She asked for “5 k”, or 5000 pesos. You replied she was asking for a lot of money. You wrote she was not a “cherry”, or a virgin, anymore. She said she would stay with you for 3000. You offered her 2000 pesos, but she refused.
73Charge 34 is a rolled-up count and relates to two children. Between 20 May and 5 June 2017, you messaged victims 25 and 26 on Facebook. You told victim 25, who was 14 years old, you would really like to meet her. After you asked her if she would like to come to Pampanga to stay with you for a few days she did not reply.
74Victim two, also identified as facilitator 15, gave you contact details for victim 26, who was also 14 years old. You introduced yourself as a friend of two other girls you had abused, that is, victims one and two. You asked victim 26 to come to stay with you for sex. She said she would only stay with you if victim two was also with her. You said you wanted her to come alone. She never met with you.
75Charge 12 also relates to two children.
76Between 5 August 2011 and 10 October 2014, you messaged victims 23 and 24, who were both 14 years old, on Facebook.
77In 2011, you exchanged messages with victim 23. When she said she was 14 and attending high school you told her you might meet her when she was older.
78You told her you were aged just over 30 and asked whether she would like to stay with you. She told you that she and a friend would. The conversations became sporadic until late November 2013 when they stopped.
79In June 2014 you started to send Facebook messages to victim 24.
80You asked her when she was born, and she said, 2000. You opened a Skype account for her and sent her messages asking her whether she wanted to stay with you for sex. You told her the first few times her vagina might hurt and that you would use lubricant.
81You said vaginal sex was a very nice and enjoyable experience and there were other sex acts you could teach her. When she responded she would only meet you if you did not touch the sensitive part of her body and respected her and supported her, you ceased communication with her within a month.
82Charge 35 is a state offence of possess child pornography.
83On 15 June 2017 police arrested you and searched your home. In suitcases they found two USB drives, three hard drives and 45 memory cards which contained the 3140 files of child pornography you had produced.
84You also had about 70 DVDs and about 15 books, comics, magazines and DVD VHS covers which contained 2777 other pictures, photos and videos of child pornography material. The items which you had not produced yourself included 914 Category 1 images, which predominantly depicted children's exposed breasts, and 1178 Category 4 images of an adult male sexually penetrating female children aged between nine and 12 years.
85There was also a Category 5 video clip of someone inserting a syringe into the vagina of a child aged between five and ten years and a Category 6 comic depicting a female child aged between seven and 11 years being raped by three men.
86Your possession of the total of 5916 items constitutes the charge of possessing child pornography, Charge 35.
87At different times during the period of your offending between May 2010 and June 2017 you had brought the electronic storage devices which contained the child pornography material, which you had produced in the Philippines, into Australia.
88Police found them in suitcases at your home when they searched it. Bringing into Australia the child pornography, which you produced, constitutes the charge of importation of Tier 2 goods, that is Charge 2.
89I was provided with a table of graphic descriptions of examples of your depraved sexual activity with these young Filipino children, Exhibit B. With your penis you penetrated them vaginally and anally. You had them perform acts of fellatio on you and you had them masturbate you and you masturbated yourself in front of them.
90In some episodes you ejaculated in their mouths and on their faces. In one instance, the victim appears to be sleeping when you put your penis near to her vagina. At times, when girls appeared uncomfortable, and at others, in pain, you disregarded their feelings and persisted with your abuse of them for your sexual gratification.
91When they were reluctant to accede to your demands or protested you pressed them verbally to comply. When girls said they did not want to be filmed you said, 'I don't like sex without video', and you filmed them regardless.
92You expressed a deep sexual interest in 12 to 14-year-old girls. At times you referred to girls as 'daddy's little girl'. You often asked them to tell you their age and when one girl told you she was 14 you replied, 'Only 14? Not 12?'.
93You referred to one girl as 'Little girl so tight, only 12 years old, little girl
12-year-old pussy', although she was 14. While you were having sexual intercourse with another girl you asked her to tell you she was 12 years old. She refused. When you were communicating with the girls and their facilitators you expressed a desire for 'good girls, clean girls, girls with small boobs, skinny girls, not chubby girls, innocent girls and young virgins', who nevertheless would be willing to do everything.94You paid the girls modest sums of money, which were no doubt large in their eyes, for sex. You expected lengthy sex sessions with them. Some of your film captures sex acts which went for more than ten minutes. At one time you said to one girl 2000 pesos, approximately AUD$52, was a fair normal rate.
95You indicated to another you would pay 1800 pesos for a three to four hour sex session. You paid larger sums to girls who stayed with you for days at a time. Even though you were getting cheap sex you haggled with others over prices. When one girl told you, she needed money for school you told her it was not nice to ask for money all the time.
96As I said before, another girl, who told you she was in Year 8 at school, agreed to meet you for sex and in a message, she wrote, 'Don't say I'm a good girl. No choice. My mother has breast cancer. My virginity is pay me'.
97In December 2013 you paid her 23,800 pesos, approximately AUD$618, for seven days she spent with you for sex.
98Five of the girls you used as facilitators were victims of your crimes. You engaged in acts of sexual intercourse with them when they were 16 and 17 years old and filmed them.
99You paid commissions to the three facilitators who found you nine children for sex. In 2012 you told one facilitator you would pay 2000 pesos, about AUD$51, for a girl who stayed overnight with you. In 2016, you told another you would give the girls 1800, about AUD$46, and you would give her, the facilitator, '300 (about AUD$8) for every new girl'.
100You had communicated with the girls and their facilitators using Facebook and SMS. One girl was concerned you might sell the pictures and videos which you had taken on the internet. It appears you stored them only as a personal record.
101Victim 14 made a pithy victim impact statement. She was a victim of your persistent sexual abuse. In 5 separate episodes, during three trips to the Philippines, over a period of 11 months, you engaged in acts of sexual intercourse with her when she was 14 and 15 years old.
102Additionally, on a further seven occasions, you engaged in sexual activity, including acts of sexual penetration, with her after she turned 16 years old. You also filmed and photographed your abuse of her.
103She wrote, simply, she was a school student when you abused her, she said she was quiet and reserved before she met you but then changed and followed the crowd. She feels uneasy and restless after what happened with you. Sometimes, when she remembers your abuse, she avoids her partner.
104When police interviewed you, you were evasive in your answers.
105When they asked you about the use of your Facebook account to procure children overseas for sexual activity you said you feared someone else may have been using it.
106You described yourself as an animal lover and said you used your Facebook account to watch dogs and animals. When you were asked about one of the victims you communicated with on Facebook you described her as your girlfriend. You said you met her in Manila about three or four years earlier, that she stayed with you and, although your relationship had ended, you continued to send her money to help her.
107When asked about your visits to the Philippines you said they were personal trips.
108You were charged with a very large number of offences and released on bail.
109On 20 February 2019 you were committed to stand trial following a straight hand up brief committal where you did not test or contest any of the prosecution evidence.
110Shortly prior to committal, you indicated an intention to plead guilty and, after lengthy discussions, the charges which are on this indictment were agreed.
111You have no criminal convictions.
112I turn now to your personal circumstances.
113Mr Johnson, who with Ms Ballard, appeared on your behalf, told me you were born on 9 October 1967 in Ho Chi Minh City to Chinese parents. Your father was part owner of a clothing factory. You are the youngest of ten children.
114When you were about six years old, the Vietnamese regime imprisoned your father and, after he agreed to forfeit his assets to the government, he was released. In 1978, your father and mother fled with you to Taiwan. In 1980, two of your older sisters who had also escaped Vietnam by boat to Indonesia were granted asylum in Australia as refugees.
115Your mother died while you were in Taiwan. In 1984, your sisters sponsored your father and you to Australia.
116Your sisters supported you, quietly and patiently, in court.
117You are hard working. With no English, you completed two years of secondary school at evening classes and then obtained a degree in accounting and business management at Victoria University.
118You have a good employment history. Initially you worked in hospitality and then as a municipal clerk. Subsequently you worked as a flight attendant for an international airline company. Around 2000 you obtained Australian citizenship.
119In August 2017, after 22 years' service with the airline, you took a redundancy package. You bought a house, but the mortgage is in arrears and the property will have to be sold. You have lost contact with your work colleagues and friends, but your family continue to support you.
120I received references from one of your sisters and her husband. Your sister described you as emotionally challenged and imbalanced as a result of your traumatic exodus from Vietnam, your mother's long illness and her subsequent death, and bullying of you at school. She said you lacked a role model in your formative years
121Your brother-in-law described you as devoted to your parents and helpful to everyone in the family. He said you have shown a deep level of shame and remorse for your offending and have accepted responsibility for your actions.
122I received a medical report, dated 18 June 2019, from Mr Ivan Bashkar. You have been diagnosed with an acute lumbar disc prolapse. You may require surgery to ameliorate the symptoms.
123On 17 October 2019 you were charged with an offence of attempting to import a sex doll into Australia. Mr Johnson told me that charge is disputed.
124When you were charged, your bail in respect of these charges was revoked and, after six days at Melbourne Assessment Prison, you were transferred to Hopkins Unit at Ararat Prison. To reward your good behaviour there you have since been transferred to the less restrictive Wimmera Unit.
125Because you have limited English there are few programs available to you on remand, but you have completed the courses offered to you so far. Family members visit you weekly.
126In comprehensive and helpful written and oral submissions Mr Johnson acknowledged your offending is undeniably serious and must attract a lengthy prison term.
127He properly acknowledged your offending was to varying degrees prolific and protracted, that you exploited the social and demographic vulnerability of young girls, who were in no position to meaningfully consent to sexual activity with you, and you harmed them.
128He submitted, in assessing the objective gravity of your offending, regard must be had to the absence of several aggravating features, namely you did not disseminate any of the child pornography material you produced, you did not use it to coerce the children to engage in sexual activity with you, you did not show it to them at all, you made no threats of self-harm or harm to others if your demands were not met, you were not in a supervisory position of a family member or employer and you did not use any implements or devices such as a vibrator in your offending.
129True enough these aggravating features, present in other cases, were not present in your offending. On the other hand, these points of distinction should not be overstated.
130Mr Johnson conceded in cases so grave as yours, general deterrence and protection of the community, particularly children, are the prime sentencing factors and that limited weight is to be given to your personal circumstances.
131Nevertheless, in mitigation of penalty, he relied on:
132Firstly, your lack of any criminal history,
133Secondly, your plea of guilty for its significant utilitarian value in saving the community an otherwise lengthy and distressing trial, and its demonstration of your acceptance of responsibility and willingness to facilitate the course of justice.
134Thirdly, the delay of nearly three years, not attributable to you, between your arrest and the prosecution of the charges against you, during which you have faced the uncertainty of your fate; and
135Fourthly, that the burden of a lengthy term of imprisonment, which you inevitably face, will be more burdensome because of the risk that your older sisters, who are your only family, will die while you are incarcerated.
136I accept they are mitigating factors and will take them into account to moderate your sentence, albeit in the limited way in which the law allows.
137Mr Johnson also relied on the principle of totality given the large number of sentences for which you are to be sentenced to avoid a crushing sentence. I will be mindful, by the orders I make for cumulation and concurrency, to ensure your overall sentence is just and appropriate for the whole of your offending.
138On 27 March Mr Ralph made a further submission that the effects of the COVID-19 virus, a global pandemic, will make prison more burdensome for you in two respects, namely the hardship of increased prison restrictions, including suspension of prison visits and programs, and the worry and uncertainty you have for your older sisters who live in Melbourne where the rate of transmission of the virus is escalating in the community daily.
139The issue has been very recently considered by Justice Lasry in a bail application, Re Samatha Broes [2020] VSC 128, and the Court of Appeal in R v Brown [2020] VSCA 60. On 23 March 2020 the Court of Appeal said at paragraph 48:
'We are hesitant to express a general statement of principle regarding how this court and others should deal with this crisis as regards to its effect upon relevant sentencing principles. We do accept however that the situation is causing additional stress and concern for prisoners and their families as it is for every member of the community. The extent to which that may be taken into account if at all will be a matter to be resolved on the particular facts of any individual case.'
140I accept and consider the current public health crisis, for so long as it continues, which of itself is uncertain, will make your incarceration more onerous in the two respects Mr Ralph contended. However, where the offending is very serious, as yours is, it is not a factor that looms large in the sentencing synthesis.
141Ms Breckweg, who appeared for the Crown, in full and thorough written and oral submissions, submitted your offending was extremely depraved and serious because you offended against 26 young girls, aged between 13 and 17 years, over a seven year period, which occurred during 25 separate trips to the Philippines, and your offending against them involved 33 separate charges of five different types of child sex offences outside Australia, some of which were rolled up counts involving a number of individual sex crimes.
142In assessing the seriousness of your offending, she pointed to the following abhorrent features of your crimes.
143You had a clear sexual interest in female children an interest in female children aged from 12 to 14 years.
144You engaged in gross sexual activity with young girls, including having them adopt pornographic poses, partly clothed and sometimes naked, and you performing acts of oral, vaginal and anal penetration and masturbation with them and ejaculating on their faces or in their mouths.
145At times, you ignored their feelings of reluctance and discomfort during sexual activity with you.
146You filmed your sexual activity with them, sometimes with several cameras and sometimes despite their hesitation and embarrassment.
147You had the girls participate in multiple sexual acts with you over long sessions, sometimes days, and, in the case of some victims, abuse over a period of years.
148You engaged in sexual activity with one girl who appeared to be asleep.
149You engaged in sexual activity with some girls in the presence of another girl.
150You used young women, some still teenagers who had been your victims as facilitators to replenish your pool of victims with younger girls as time passed.
151She acknowledged:
152Firstly, your guilty plea has high utilitarian value and is demonstrative of a willingness to facilitate the course of justice and a degree of acceptance of responsibility for your actions. She submitted, other than your guilty plea, there is little evidence of remorse.
153Secondly, the principle of totality applies in your case, but she submitted that some degree of cumulation between counts is warranted to reflect the separate and different forms of your offending against individual victims.
154I accept the force of her submissions.
155In addition, she submitted your prospects of rehabilitation must be assessed unfavourably because of the lengthy, copious and persistent nature of your offending. While they are factors which indicate I should be guarded about your prospects of rehabilitation I am not prepared to conclude your prospects of rehabilitation are poor.
156The Crown provided me with a table of relevant sentencing principles derived from the following cases. R v Revo [2012] VSCA 111, Commonwealth DPP v Beatty [2017] NSW CCA 301, R v Merrill [2018] VSCA 62, R v McNeice [2018] VSCA 186, a leave application of Appeal Justice Whelan, R v Hawke [2018] VSCA 287, a leave application heard by Justice of Appeal Ashley, R v Konsavitski [2020] VSCA 41, a decision of Justice Champion and R v Baden [2020] NSW CCR 23.
157I have read the cases and, making adjustments for the differences between the circumstances in those cases and yours, I have used them as a yard stick to measure the sentences I will impose.
158Mr Johnson acknowledged because of the high number of victims and lengthy period of your offending the objective seriousness of your crimes is greater than in the other cases, save for Konsavitski.
159He sought to distinguish Konsavitski's offending as more serious taking into account Konsavitski was sentenced for 59 child sexual offences, including one of maintaining a sexual relationship with a male child under 16 years in Victoria, that his offences were committed upon 43 child victims, in 47 separate incidents, over a period of 15 years, in Australia and three Asian countries, on occasions involving group sex with children and sexual penetration of sleeping victims.
160Justice Champion, at [8] described Konsavitski's offending as, 'the worst level and type of such offending (he has) seen and is shocking'.
161I do accept your offending was significantly less in its scale than Konsavitski's.
162Nevertheless, it was extremely serious offending.
163It was prolific and protracted. Your moral culpability is high. You planned your offending. It seems your work-related travel provided you with an opportunity to commit these crimes, and you did.
164The objective of division 272 of the Criminal Code(Cth) is to implement Australia's international obligations to protect vulnerable children from sexual abuse and exploitation by Australians travelling overseas for child sex tourism.
165The sentencing principles are well established.
166Child sex crimes are especially grave and demand substantial penalties because:
167Firstly, children cannot meaningfully consent to sexual activity.
168Secondly there is a clear presumption of harm, including future harm being inflicted upon them.
169Thirdly, they are vulnerable to predatory advances due to their immaturity.
170Fourthly, they are ill equipped to deal with an adult's attempt to foster a sexual relationship with them; and
171Fifthly because they are unable to protect themselves or respond appropriately, they require protection from being criminally sexualised.
172In addition, because children are entitled to the protection of the law, and because offending of this type is difficult to detect, general deterrence and denunciation are paramount considerations and personal factors, such as lack of prior offending and age, must be given less weight.
173The fact that you are now 52 years old and have no criminal record is less significant in the sentencing synthesis. In view of your persistent offending over a lengthy period specific deterrence is also an important consideration in your case.
174In the absence of any psychological evidence I must approach the assessment of your prospects of rehabilitation with caution. I am unable to conclude that you have good prospects of rehabilitation but, on the other hand, I cannot say they are unfavourable.
175Your rehabilitation will be closely linked to your response to the treatment that you will receive while you are imprisoned. I hope you will engage with the people who can assist you with your rehabilitation.
176Mr Chen, I will now announce the sentences that I will impose. There are 35 charges, as you appreciate, and I will provide each of Ms Breckweg and Mr Ralph with a table that I will be reading from to enable them to follow what I am saying.
177On Charge 1, produce child pornography material outside Australia contrary to s.273.5(1) of the Criminal Code, you are sentenced to four years' imprisonment and I direct that three months of this sentence be served cumulatively with the sentence on Charge 23 to commence on the completion of the sentence imposed on Charge 23.
178On Charge 2, import tier 2 goods contrary to s.233BABA (5) of the Customs Act 1901 you are sentenced to one year and nine months' imprisonment to commence on 30 June 2020.
179On Charge 3, produce child pornography material outside Australia, you are sentenced to five years' imprisonment and I direct four months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 1.
180Charge 4, encourage an offence against division 272 of the Criminal Code, you are sentenced to four years and six months' imprisonment and I direct that two months of the sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 3.
181On Charge 5, engage in sexual intercourse with a child while outside Australia, contrary to s.272.8(1) of the Criminal Code you are sentenced to six years' imprisonment and I direct that six months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 4.
182Charge 6, encourage an offence against division 272 of the Criminal Code, you are sentenced to four years and six months' imprisonment and I direct that two months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 5.
183Charge 7, engage in persistent sexual abuse of a child outside Australia by committing offences against s.272.8(1) and s.272.9(1) of the Criminal Code on three or more occasions contrary to s.272.11(1) of the Criminal Code you are sentenced to eight years' imprisonment and I direct 12 months of this sentence be served cumulatively with the sentence on Charge 23 to commence on the completion of the sentence imposed on Charge 6.
184Charge 8 produce child pornography material outside Australia, you are sentenced to five years' imprisonment to commence on 30 June 2020.
185Charge 9, procure a child to engage in sexual activity outside Australia, contrary to s.272.14(1) of the Criminal Code you are sentenced to four years' imprisonment and I direct that two months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 7.
186On Charge 10, engage in sexual intercourse with a child outside Australia, you are sentenced to six years' imprisonment and I direct that six months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 9.
187On Charge 11, produce child pornography material outside Australia, you are sentenced to four years' imprisonment and I direct that three months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 10.
188On Charge 12, procure a child to engage in sexual activity outside Australia, you are sentenced to four years and six months' imprisonment and I direct that three months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 11.
189On Charge 13, encourage an offence against division 272 of the Criminal Code, you are sentenced to five years' imprisonment and I direct three months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 12.
190On Charge 14, produce child pornography material outside Australia, you are sentenced to four years' imprisonment and I direct three months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 13.
191On Charge 15, encourage and offence against division 272 of the Criminal Code you are sentenced to four years' imprisonment and I direct two months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 14.
192On Charge 16, encourage an offence against division 272 of the Criminal Code, you are sentenced to four years' imprisonment and I direct two months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 15.
193On Charge 17, encourage an offence against division 272 of the Criminal Code, you are sentenced to five years' imprisonment. I direct three months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 16.
194On Charge 18, produce child pornography material outside Australia, you are sentenced to five years and six months' imprisonment and I direct four months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 17.
195On Charge 19, engage in persistent sexual abuse of a child outside Australia, you are sentenced to eight years' imprisonment and I direct 12 months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 18.
196On Charge 20, produce child pornography material outside Australia, you are sentenced to five years' imprisonment to commence on 30 June 2020.
197On Charge 21, engage in sexual intercourse with a child while outside Australia, you are sentenced to six years' imprisonment and I direct six months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 19.
198On Charge 22, produce child pornography material outside Australia, you are sentenced to 4 years imprisonment and I direct 3 years of the sentence be served cumulatively with the sentence on charge 23 to commence on completion of the sentence imposed on charge21.
199On Charge 23, which is your base sentence, engage in persistent sexual abuse of a child outside Australia, you are sentenced to eight years' imprisonment to commence on 30 June 2020.
200On Charge 24, produce child pornography material outside Australia, you are sentenced to five years' imprisonment to commence on 30 June 2020.
201On Charge 25, produce child pornography material outside Australia, you are sentenced to four years' imprisonment and I direct that three months of this sentence be served cumulatively with the sentence imposed on Charge 23 to commence on completion of the sentence imposed in Charge 22.
202On Charge 26, produce child pornography material outside Australia, you are sentenced to four years' imprisonment and I direct three months of this sentence be served cumulatively with the sentence imposed on Charge 23 to commence on completion of the sentence imposed on Charge 25.
203On Charge 27, engage in sexual intercourse with a child while outside Australia, you are sentenced to six years' imprisonment and I direct six months of this sentence be served cumulatively with the sentence imposed on Charge 23 to commence on completion of the sentence imposed on Charge 26.
204On Charge 28, engage in sexual intercourse with a child while outside Australia, you were sentenced to six years' imprisonment and I direct six months of this sentence be served cumulatively with the sentence imposed on Charge 23 to commence on completion of the sentence imposed on Charge 27.
205On Charge 29, encourage an offence against division 272 of the Criminal Code, you were sentenced to four year's imprisonment. I direct two months of this sentence be served cumulatively with the sentence imposed on Charge 23 to commence on the completion of the sentence imposed on Charge 28.
206On Charge 30, engage in sexual intercourse with a child while outside Australia, you were sentenced to six years' imprisonment. I direct six months of this sentence be served cumulatively with the sentence imposed on Charge 23 to commence on completion of the sentence imposed on Charge 29.
207On Charge 31, produce child pornography material outside Australia, you were sentenced to four years' imprisonment. I direct that three months of this sentence be served cumulatively with the sentence imposed on Charge 23 to commence on completion of the sentence imposed on Charge 30.
208On Charge 32, encourage an offence against division 272 of the Criminal Code, you were sentenced to four year's imprisonment. I direct two months of this sentence be served cumulatively with the sentence imposed on Charge 23 to commence on completion of the sentence imposed on Charge 31.
209On Charge 33, engage in sexual intercourse with a child whilst outside Australia, you were sentenced to six years and six months' imprisonment. I direct eight months of this sentence be served cumulatively with the sentence imposed on Charge 23 to commence on completion of the sentence imposed on Charge 32.
210On Charge 34, procure a child to engage in sexual activity outside Australia, you were sentenced to four years and six months' imprisonment. I direct three months of this sentence be served cumulatively with the sentence imposed on Charge 23 to commence on completion of the sentence imposed on Charge 33.
211On the State charge, Charge 35, knowingly possess child pornography contrary to s.70(1) of the Crimes Act(Vic), you are sentenced to one year and nine months' imprisonment.
212Mr Chen, for the State offence, you are sentenced to one year and nine months' imprisonment and I intend that three months of that sentence should be served cumulatively with the sentences I have imposed on the federal charges.
213Your base sentence for the federal offences is eight years' imprisonment, Charge 23.
214By the orders I have made for cumulation, I intend your overall sentence for the 34 federal offences is 18 years and three months' imprisonment and I order that you serve 13 years and 9 months of the sentence before you are eligible for parole.
215Your total effective sentence, for all 35 charges, is 18 years and 6 months imprisonment from today’s date. You will not be eligible for parole before 14 years (less your presentence detention) from today’s date.
216Because you have pleaded guilty, I have imposed a less severe sentence upon you. I must make a s.6AAA declaration in respect of the state offence. Although the position is not clear in respect of the federal offences, I will make a similar declaration. I declare that but for your plea of guilty I would have sentenced you to three years' imprisonment with a non-parole period of two years and three months for your state offending and I would have sentenced you to 24 years' imprisonment with a non-parole period of 20 years for your federal offending.
217I declare you have served 150 days of your sentence by way of pre-sentence detention.
218Finally, Mr Chen, you stand convicted of 13 registrable class 1 offences and 22 registrable class 2 offences under the Sex Offenders Registration Act (Vic). Under the Act you are now a registrable offender and you must comply with your reporting conditions of part 3 of the Act for the rest of your life.
219You must report your personal details to Victoria Police within seven days and you have an ongoing obligation to report your personal details to Victoria Police each year thereafter and to report any change of your personal details during that time. It is an offence punishable by a term of imprisonment to fail without reasonable excuse to comply with your reporting obligations. You will be given a written notice of your reporting obligations and the consequences that may arise if you fail to comply with these obligations. When you receive that notice you will be asked to sign an acknowledgement that you have received it.
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