Director of Public Prosecutions v Duc Le
[2024] VCC 1937
•28 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01308
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUC LE |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 November 2024 | |
DATE OF SENTENCE: | 28 November 2024 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2024] VCC | |
REASONS FOR SENTENCE
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Subject:Rape --- False Imprisonment --- Trial --- Sentence
Catchwords: Rape --- False Imprisonment --- Plea Not Guilty --- 21 year old Victim --- Offender 27 years old --- Known to each other for 2 weeks --- Other Consensual Activity --- Victim a virgin who declined penile/vaginal sexual activity --- Alcohol and Illicit Drug Use --- Rape occurred in Offender’s Apartment --- Victim physically resisting and verbally protesting --- Penetration from behind --- Victim immediately bled --- Victim physically prevented from leaving apartment --- Immediate complaint and report to police --- Offender denied sexual activity in record of interview --- Claim of self defence to the false imprisonment --- Offender has no prior criminal history --- Vietnamese national --- To Australia as unaccompanied 15 year old --- Completed schooling and Tertiary Education --- Accountant --- Some illicit drug issues --- No subsequent sexual offending --- Significant Delay --- Delay Not Attributable to Accused --- Risk of Deportation --- Has sought psychological treatment --- Stable relationship and accommodation --- Support of family and friends --- Positive Prospects of Rehabilitation --- First Time in Custody --- Standard Sentence offence
Legislation Cited: Sentencing Act 1991
Cases Cited:Cheung v The Queen (2001) 209 CLR 1 --- R v Harris [1961] VR 236 --- Berry v The King [2024] VSCA 274 --- Jurj v The Queen [2016] VSCA 57 --- Queen v Rankin [2001] VSCA 158 --- Guden v The Queen (2010) 28 VR 288 --- Matamata v The Queen [2021] VSCA 253
Sentence: 8 years and 6 months imprisonment --- Non-Parole period of 5 years imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Crouch | Office of Public Prosecutions |
| For the Accused | Mr R. Richter KC | Richard Revill Lawyers |
HER HONOUR:
1Duc Son Le, on 26 August 2024 after a nine day trial a jury found you guilty of rape and false imprisonment. Those offences were committed against Ms Megan Anh[1] on
2 November 2019. Ms Anh was aged 21 years at the time of the offending. She was someone that you had known for approximately three weeks and had only met once in person previously.[1] A Pseudonym
2At the time of your offending you were 27 years of age. You are now 32. Your English name is Jason.
3It is now my task to sentence you in line with the jury verdict.
Background to the offending
4You first met Ms Anh at a nightclub on Friday 18 October 2019 through mutual friends – some of Ms Anh’s girlfriends and some of your male friends. At the nightclub your two groups socialised and danced together. Later, you returned to your apartment in Maribyrnong with Ms Anh, her girlfriends Macey[2] and Intira[3], and your friends Nick[4] and Nick[5]. There you were drinking and there was some drug taking. Macey, Nick and Intira left, leaving you and Nick with Ms Anh.
[2] A Pseudonym
[3] A Pseudonym
[4] A Pseudonym
[5] A Pseudonym
5You, Nick and Ms Anh played a dice game which you described as a truth or dare game. It involved the loser removing clothing. On losing Ms Anh had to remove her clothing. You and Nick also took your clothes off until you were both completely naked. Ms Anh was naked except for her underpants which she kept on. The game also involved using cocaine. She said ‘I was shown how to inhale the cocaine off their bodies.’ Cocaine was also taken off her naked body.
6At some stage Ms Anh was asked to participate in a threesome. She declined saying ‘That’s not what I want’. She told you that she had not had sex before and was a virgin. She said after the game she wanted to go home but that you and Nick were telling her to ‘rest here’.
7You and she ended up in your bedroom. You and Ms Anh were kissing and participated in some consensual sexual activity in your bedroom including her performing oral sex on you. She described you as roughly groping her chest and trying to touch her vagina. She had her period.
8Eventually she left your apartment and you and she exchanged numbers.
9For the next two weeks you and she exchanged text messages. They were flirtatious from both of you. You also invited her to try LSD with you, saying it makes you ‘super horny’. She said she had never tried it and asked in a text what it was. You said ‘I wish someone showed it to me when I was younger.’ She said she was scared to try it but agreed to try it with you.
10You invited her to go to Peninsula Hot Springs. For that purpose, you picked her up on Friday 1 November 2019. You gave her a small square of paper that was LSD during the car ride. She gave evidence that she did not think it had much effect on her. I note it was not detected in the urine sample she later gave.
11In the car park at the Hot Springs she said you were again groping her and rough. She stopped you but you made a comment along the lines that ‘It’s fine, because we’re in Australia’.
12You and Ms Anh attended a private bath and there was again consensual sexual activity. She performed oral sex on you which she described as ‘rough’ and that she could not breathe and would pull back. In the private bath you attempted to have intercourse with her by trying to penetrate Ms Anh’s vagina, however Ms Anh moved away. In cross examination she confirmed the contents of her statement ‘…he tried to continue to put his penis into me while we were both in the bath, but I kept moving away. He kept telling me to just turn around, but I didn’t.’ She was asked ‘You made it clear at that stage you didn’t want to?’ and she agreed.
13You both left the Hot Springs together in your car and returned to the Melbourne CBD. At some point you rolled a joint of marijuana and both smoked it.
14In Melbourne at around midnight you met Ms Anh’s friends Intira, Lisa[6], Macey, Connor[7] and David[8] at the Arbory Afloat to celebrate Macey’s birthday.
[6] A Pseudonym
[7] A Pseudonym
[8] A Pseudonym
15You and Ms Anh remained at Arbory Afloat for several hours with the group of friends before you all left for the Workshop Bar. You were drinking alcohol. You gave evidence that Ms Anh stopped drinking by the time you reached the Workshop Bar. You became drunk. You were described as loud to the point where a bartender told you to quieten down.
16At approximately 2:51 am that morning you and Ms Anh left the Workshop Bar. The evidence from Ms Anh and a number of her friends was that you told her you would drive home, however she insisted you were too drunk and should take an Uber, and that she would take you home.
Summary of offending
17At approximately 3.13 am, you and Ms Anh arrived at your apartment. She told you to go to bed but you were ‘hyper’. She said you went to the ensuite bathroom. She got you a glass of water and returned to find you without pants on. You told her to kiss you which she did and then she removed her clothes. Ultimately at trial she could not recall whether her underpants were taken off by her, by you or remained on, but said she did not think she had her underpants on. It is most likely that she did not have underpants on given what transpired but I make no finding about who removed them.
18You were touching each other and she performed oral sex on you.
19You told her to kiss you and she again did. While you were kissing she said ‘he rolled me over and then I ended up underneath him…. So he was above me.’ She said the kissing continued but she started to try and pull back. She said ‘I started resisting’. She described feeling like she was losing control and unable to move and that she stopped consenting because she did not want what was happening.
20In evidence she was asked whether the kissing stopped. She said ‘no… he pushed himself onto me. ... he was trying to get closer. Even closer.’ She continued to resist ‘like pull back and try to get out.’
21In cross examination her statement was put to her, where she described herself resisting and telling you to ‘chill’ and calm down. She said that you just wanted to have sex; that you did not want her to do it with another guy; that she felt your penis on the side of her leg; that you grabbed both of her arms and ‘I think put them above my head’; that ‘he had half of his body weight on my right side and he was trying to move me and roll me and get his penis into my vagina from behind.. he wanted to have sex. I felt like I had no control.’
22She said ‘After I resisted, he said ‘You’re going to do it anyway, so might as well do it with me.’ In cross examination she confirmed the contents of her statement where she stated that you told her ‘You’re gonna do it either way. Don’t fight it. Stay calm’ or ‘you may as well do it with me’. He was saying this just before he pinned me down, and when he pinned me down, I couldn’t fight him off.’
23You then turned her to the side. She said, ‘he turned me to the side – he was rough – I resisted he pushed himself onto me more’. Ms Anh said that once on her side, after you moved her hip over ‘he had his hands on my arm’. Ms Anh said that while your hands were on her arm you were rough - ‘he had his hands on my wrist… he was pinning me down – on my wrists with his hands… it was really hard’.
24You put your penis near Ms Anh’s vagina. Ms Anh loudly said ‘No’ more than once – she estimated more than four times. In her statement which she confirmed in evidence, she said ‘I was yelling at him, Stop. Stop’.
25You then pushed yourself onto Ms Anh more and pushed your penis inside her vagina. Again, she confirmed the contents of her statement where she said, ‘That’s when he forced his penis inside me. He pushed the entire thing in. Because I was really tense already, when it went in I was so shocked. The physical sensation was so intense, I felt a lot of pain, a sharp rough jabbing pain.’
26She screamed and you moved back a bit and withdrew your penis. She said ‘I tried to get out of the bed… I slid off the bed.. [and noticed] blood everywhere.’
27Ms Anh grabbed her clothes and ran to the bathroom. She had blood flowing down her legs and onto the bathroom floor. She described herself as ‘distressed, crying, screaming.’ She said she was shocked. You followed her to the bathroom. She asked you loudly ‘Why did you do that?’ She put her clothes back on but could not find her bra.
28She took her phone and took photos of the blood down her legs. You had taken the sheet off the bed. She took photos of the mattress. She also took a photo of you in the bathroom.
29She tried to call her friend Intira. She sent her a text at 3:43 am which said 'I got raped'.
30There followed a struggle between you and Ms Anh. She said she tried to leave the apartment. She was asked if she was able to do so but said ‘No… he wasn’t letting me leave.’ She agreed that at some point she slapped you and hit you. She said, and you also gave evidence, that you were grabbing her hands. She told you that she would call the police if you did not let her go.
31At one point she managed to call her friend Intira. Intira was still with the group of friends who had been at the Workshop Bar. Intira gave evidence of the text message and the phone calls. At one point she received a call from Ms Anh which she put on loudspeaker for the group of friends to hear. Ms Anh could be heard yelling – ‘What the fuck is wrong with you. I’m bleeding everywhere’.
32The friends who gave evidence variously described her as screaming, crying, sobbing, loud, aggravated, panicked and stressed. Mr Connor Reshma stated that his memory of the phone call is still glaring to him despite the passage of time. Mr Lawrence Surendra[9] stated that the group of friends were calling Ms Anh in an attempt to speak to her and to find out where she was. He said on a few occasions she picked up and they could hear her crying before the phone hung up. He said ‘I think Megan was in shock because she wasn’t really helping to let us know where she was.’
[9] A Pseudonym
33Ms Anh said to you ‘Let me go or I will call the cops.’ Ms Anh said ‘I kept insisting that I wanted to leave but he didn’t let me leave’. You physically restrained her and you blocked her path, at one stage sitting in the doorway to the ensuite. You gave evidence that when she tried to get past you she kicked at you and you grabbed her legs. Three times she attempted to call Triple 0 but for reasons unknown those calls did not connect.
34Ultimately you grabbed her from behind in a bear hug, holding her around her arms. She said this lasted for ‘quite a while’. She said she could not break free from the bear hug. She was asked whether she managed to leave your apartment and said ‘Yes’. ‘How did you manage to leave? Answer: I bit him.’ She bit you on both arms. She was asked ‘And after you bit him on both arms did he let you go?’ and she said ‘No… I tried to run again.’ But she was unable to. She was only able to get away after biting you on the arm harder for a third time which caused you to release her.
35On leaving she did not put her shoes on and did not have her bra. She said of her shoes ‘I left [them] there before I ran… because I didn’t have enough time to put my shoes on and I was scared that he would come and grab me again…so I ran without them.’ CCTV footage of the apartment basement shows Ms Anh leaving barefoot.
36On later examination she was observed to have bruises and abrasions to her arms, legs, face and neck.
37Ms Anh then tried to call an Uber, but it did not come so she flagged a different car - ‘a random Uber’ driving by. She said, ‘I waved him down to try to get his attention’. As she got in the car you appeared at the door. She said 'Jason almost ended up next to me and I remember telling Jason to fuck off. I quickly jumped into the car, and I told the Uber driver that I got raped.’
38Ms Anh was driven to the home of her sometime boyfriend Mr Jonathan Guanyu[10]. He was woken by her banging on the door and screaming. He observed her to be crying and distressed and with blood on her legs. She told him she had been raped and he took her to the police station where she vomited.
[10] A Pseudonym
39Later when Ms Anh was at the police station, she described herself as feeling ‘really scared and distressed.’ Officer Morris described her as shaking and visibly upset. He observed the blood on her legs and arranged for her to be taken by ambulance to the Royal Women’s Hospital.
40Ms Anh said at the hospital she was in pain and emotionally that she was stressed.
41She made various complaints to the police and doctor, the details of which included that you wanted to have sex with her and had pinned or held her down for that purpose. The next day she spoke to Intira and reported that she was saying no to sex and did not want to have sex because she was a virgin. She relayed the comment you made to the effect that she was going to lose it [her virginity] one day so it may as well be with you. She reported that you used a lot of strength to hold her back during the false imprisonment.
42You confirmed in your evidence that after Ms Anh left your apartment, you flipped the bloodied mattress over and that you disposed of the bedding. In doing so you gathered up Ms Anh’s shoes and probably her bra, disposing of them with the bedding in a bin outside your apartment. You then got an Uber and went to a friend’s house in Doncaster.
43Police attended your apartment on the night of 2 November 2024 and left a copy of the search warrant which referred to the offence of ‘rape’. On your return you found the warrant and made contact with the informant. You attended voluntarily for interview on
3 November 2019. You did not seek legal advice.44In your interview you agreed about the history of your contact with Ms Anh. However, you told police that there had been no oral sex at any time; that on return to your apartment on 2 November you immediately fell asleep; that there was no sexual contact between you; and that you were woken suddenly by Ms Anh screaming; that there was blood everywhere and you did not know where it was from, suggesting it may have been period blood; that Ms Anh was hysterical and hitting you; and that you restrained her out of concern that she would leave in the middle of the night in a distressed state. You told police after she left you tried to find her before passing out and that a friend came to see you because you were distressed.
45At trial you gave evidence. You admitted that you had lied to the police when you denied any sexual activity with Ms Anh, and when you denied penile/vaginal penetration. You admitted that you lied when you said you woke to her screaming and did not know the cause of it. You admitted you lied when you denied previous oral sex, and in describing yourself looking for Ms Anh after she had left your apartment before passing out.
46In evidence you described yourself as anxious and scared during your record of interview, in particular given the seriousness of the allegation and given you had not been interviewed by police before.
47You maintained your account of the events which followed, namely that you had only restrained Ms Anh to either defend yourself from her hitting you, or to protect her from running into the night. You admitted you knew if she went to police this would cause trouble for you.
Interpreting the Jury Verdict – Findings of Fact
48Counsel at your plea made submissions regarding how I should interpret the jury verdict and what I should conclude by way of findings of fact regarding the rape. I accept that I am not bound to sentence you on a view of the facts which is most favourable to you. Nor am I required to assess the facts and the basis of the jury’s verdict in a way which is least favourable to you. Those principles are consistent with a line of authorities including Cheung v The Queen[11], and R v Harris[12] and repeated only in the last couple of weeks by the Court of Appeal in the case of Berry v The King.[13]
[11] Cheung v The Queen (2001) 209 CLR 1
[12] R v Harris [1961] VR 236
[13] Berry v The King [2024] VSCA 274
49Before I come to those findings I note the following.
50Ms Anh was cross examined about the events of 18/19 October including examination of drug taking and sexual activity on that occasion. She was cross examined regarding the contents of the text messages which passed between the two of you thereafter. She was cross examined about drug taking and sexual activity at the Hot Springs and about sexual activity back at your apartment prior to the rape. She did not seek to deny drug taking or the earlier consensual sexual activity. The jury were in a position to examine all of those matters and their impact on her credibility and reliability. They were in a position to assess whether and how those earlier events may have impacted on you and her as at the time of the rape, and on the issues of her consent and your belief in her consent, and no doubt did so. By their verdict they accepted Ms Anh as a witness of truth. They accepted her account of the events at your apartment on 2 November as truthful and reliable to the standard of beyond reasonable doubt.
51By their verdict, in relation to element 2 of consent, they accepted that Ms Anh did not consent to penile vaginal intercourse. The factual basis of that conclusion can only be through reliance on her account of the events in the bedroom. That is, and I find, that Ms Anh did not want to have sexual intercourse because she was a virgin, that she physically resisted you, that you pinned her down with your body so that she could not move out from under you, that she said ‘No’ or ‘Stop’, that she said those words repeatedly, that you ignored her pleas to desist, instead pinning her down with your body and holding her by the wrists, that you roughly rolled her over to her side and penetrated her vagina with your penis.
52Although I find as a matter of fact that you held her by her wrists prior to the sexual penetration, first, I cannot conclude exactly when that was. From her evidence it is not entirely clear whether it was when you were on top of her, or after you had turned her to the side. In my view it is more likely you held her wrists when you were above her but shortly before and as you rolled her to the side. That difference, if it exists, is not material. It was a dynamic situation and one which became increasingly stressful. The point is, you physically restrained her by holding her wrists and using your body weight against her. Second, I cannot and do not conclude that any injury to her wrist was caused prior to or during the rape.
53Having made those findings, I turn to element 3, the state of your belief. The jury, having concluded Ms Anh did not consent could only do so on the basis of the evidence I have just outlined. In those circumstances I accept the Prosecution submission and I find that you believed Ms Anh was not consenting. In other words, you knew by her words, and her actions, and through your actions including the need to pin her down and physically hold her, that she was not consenting. That fact is amply demonstrated by your comment to her ‘You’re going to lose it some way. You might as well lose it with me.’ That is a clear indication that your intention was to engage in penile/vaginal penetration with her regardless of her right to choose.
54I accept beyond reasonable doubt that you made such a comment and that you did so when you were on the bed and shortly before the penetration. It demonstrates your belief that that decision was not hers, but rather was something you could decide.
55You knew that penile penetration was Ms Anh’s line in the sand. She was entitled to have that line. You were aware of that fact at that time and also from your earlier interactions with her. She had made plain to you that she was not prepared to have penile/vaginal sex with you. Whatever flirtation, drinking, drug taking, or sexual activity had occurred at an earlier time or on the same night, does not detract from that fact. Your state of sobriety does not impact that fact. She was a 21-year-old. She was entitled to choose when, to whom, and in what circumstances she lost her virginity. You robbed her of that choice. Your moral culpability is high.
56You penetrated her from behind. The forcefulness of that penetration is reflected in the fact that she described it as sudden and painful, and in the fact that she screamed in pain immediately.
57It is common ground that she suffered an injury to her vagina as a result of you penetrating her. I do not draw any conclusion about the nature or extent of any injury to her vagina. I accept the expert evidence given in the trial that there are a number of reasons a woman might bleed during sexual penetration. However, the bleeding was immediate and it was profuse. The photographs tendered during the trial bear that out. It lasted some minutes.
58The pain was ongoing for Ms Anh to the point that when she was examined later that day at the Royal Women’s Hospital at 1:35 pm she was observed to be still in pain and a speculum examination could not occur.
Sentencing Principles
59Rape is an inherently serious offence. It is a crime of violence involving the invasion and breach of the physical integrity of another person. For that reason it is described as an intensely personal crime and one which is likely to have a significant impact on the victim.
60The seriousness of such a violation of another person’s bodily integrity and personal dignity by means of such a sexual intrusion is reflected in the maximum penalty of
25 years' imprisonment.61In addition to the maximum penalty, Parliament has indicated its intention that it is an offence which belongs to the most serious raft of offences described as Category 1 offences. The legislature mandates that such an offence may only be met by a term of immediate imprisonment. [14] It was not suggested by your Counsel that any alternative disposition was appropriate and nor could it be.
[14] Sentencing Act 1991 s5(2G)
62Further, Parliament has declared that rape is a standard sentence offence warranting a standard sentence of 10 years' imprisonment for an objectively mid-range example of such an offence.
63Those three aspects of the applicable sentencing regime are not starting points nor end points, but rather guideposts which I must and do take into account as part of the ultimate instinctive synthesis of sentencing.
64That synthesis requires me to consider a number of sentencing principles. By my sentence I must announce the Court’s denunciation and the community’s disapproval of sexual offending. I must impose a sentence which seeks to achieve community protection. It must be a sentence which deters you and deters others from sexual offending, and it must achieve just punishment.
65Mr Richter KC while conceding general deterrence is a relevant consideration, made submissions that general deterrence should not loom large in your case as to overshadow other sentencing considerations. I do not accept that your case is not one where general deterrence is a significant matter. The combination of young people, alcohol, drugs and sex is a potent one. Other younger people must be aware that violation of another person’s sexual boundaries constitutes serious offending which must be met by condign punishment. The sentence I impose must be directed to that aim.
66In that way it must also achieve community protection for other young people. They must be aware that being affected by drugs or alcohol is no excuse for committing a sexual offence against another person. They must be aware that the law is clear – consent to one act does not give blanket consent to other acts.
Objective Gravity
67The features outlined in Jurj v The Queen[15] are commonly understood to be pertinent to an assessment of the objective gravity of a rape offence. Those features are
non-prescriptive, and include considerations such as the level of premeditation, the duration of the incident and of penetration, whether the rape was accompanied by other violence or the threat of other violence, whether a weapon was used, whether the victim was physically injured or otherwise humiliated or degraded, whether the offender used a condom, whether the victim was particularly vulnerable, and whether the offender ignored warnings or protests by the victim.[15] Jurj v The Queen [2016] VSCA 57
68In assessing the objective gravity of your offending, I take into account the following features which serve to aggravate the offence of rape.
69You and Ms Anh had not known each other very long – only a matter of weeks. You had only met in person once before the night of this incident. As such you were not in any relationship with her, although there was flirtation and interest from both sides.
70Ms Anh was young – 21 years of age and six years your junior. You were older and more experienced.
71She was a virgin and you were aware of that fact. She had told you on 18 October that she did not want to have penile/vaginal sex with you. She had demonstrated that to you at the Peninsula Springs by moving away from you when you attempted to insert your penis into her vagina.
72Despite the short time she had known you, she trusted you enough to return to your apartment. Indeed, instead of going on with her friends as planned, she took you to your apartment to ensure you did not drive home alcohol affected. You abused that trust, taking advantage of her in a situation where she was then alone and isolated. In that sense she was vulnerable.
73Despite her verbal and physical protests, you persisted.
74You pinned her down with your body. You held her arms above her head. You rolled her over roughly and you forcibly penetrated her.
75The penetration was penile penetration of her vagina. The penetration caused her an injury and to bleed profusely.
76You did not use a condom.
77As against those features, I accept a number of the aggravating features referred to in Jurj are absent. That does not mitigate but means there are less of the possible aggravating features which would otherwise serve to further elevate the seriousness of the offence.
78I accept that this was not a premeditated rape in any way. You and she ended up alone in the circumstances I have described.
79The period of penetration was very brief. However, it only ceased due to her response caused by the sudden pain of penetration.
80Taking into account of each of the aggravating and mitigating circumstances in my view this is a mid-range example of the offence of rape.
81Regarding the false imprisonment, in assessing the objective gravity of that offence, it must be viewed in the context of the non-consensual act which had just occurred. Ms Anh was responding to you raping her. She said words to the effect 'Why did you do that?'. She sent a text almost immediately that she had been raped.
82She was bleeding profusely which only added to her state of genuine distress. She was in pain and attempting to make contact with her friends and with police. She called 000 three times during the period of the false imprisonment, but for reasons unknown those calls did not connect.
83She was distressed and hysterical, wanting to leave your apartment. You prevented her from doing so. Indeed you kept her there in that state for at least 15 minutes. While I accept that initially you were grabbing at her arms to stop her slapping or hitting you, you did not desist so that she could just leave. Instead you increased your physical restraint of her by holding her arms and hands. At one stage you sat in the entrance to the ensuite, preventing her from getting out. When she tried to do so you grabbed her legs. Ultimately you chose to restrain her by holding her from behind wrapping her in a bear hug.
84You are a physically bigger and stronger male. It was undoubtedly very frightening for her to be held by you in that way when all she wanted to do was leave.
85Her screams were loud enough to wake your neighbour. He gave evidence that he could hear a female voice screaming loudly and for approximately 3–5 minutes, ‘Get away from me, leave me alone’.
86You told police in your interview that you only acted to prevent Ms Anh hitting you and then only out of concern for her should she go out in the middle of the night in a state of distress. You made that claim again in your evidence given at trial. At no time did you offer to call a friend, call an Uber, take her where she wanted to go. The jury rejected your account that you were defending yourself or acting out of concern for her. I accept Mr Crouch’s submission that you were restraining her and preventing her from leaving out of concern for yourself and to try to gain control of the situation.
87So desperate was she to try to get away that she bit you on the bicep in attempt to make you release her. You did not do so immediately. She had to bite you two more times before you would release your hold on her. Photos of the bite marks to both of your arms and taken by police at the time of your interview days later were tendered at the trial.
88Her desperation to leave is amply demonstrated by the fact that she left your apartment without her shoes, without her bra, in the middle of the night and hailed a passing car.
89Her ongoing distress is apparent in the evidence of Mr Guanyu, Officer Morris and
Dr Krishnan.90In assessing the objective gravity of the false imprisonment I take into account that context and those features which in my view are aggravating.
91No doubt it was a frantic scene. I also take into account you were likely not thinking clearly. I accept that this was an event which unfolded very quickly. I take into account the sight of blood and the amount of blood was no doubt distressing to you and had an impact on your ability to calmly respond. I take those matters into account. Nonetheless, the catalyst for those events which followed and became a false imprisonment was the rape. In that sense you were responding to a distressing situation which you had largely caused.
92False imprisonment is an offence which carries a maximum penalty of 10 years' imprisonment. It is an offence which covers a wide range of factual scenarios, many of which are quite different to this. Most often false imprisonment is committed for the purpose of furthering some other offence. It often involves infliction of violence or the threat of violence, not uncommonly involving the use of weapons, physical restraints and is often pre-planned. None of those significant aggravating features are present here.
93Here, it is aggravated by the context I have described and by your physical restraint of her, but for those reasons I have just outlined I accept the submission that this is a lower end example of that offence.
Victim Impact Statement
94In this case Ms Anh has elected not to make a victim impact statement. That is her right. A victim should not be criticised in any way for that choice.
95There are a number of inferences I could draw regarding why she has made that decision including that she does not want to revisit these events because of the stress that would cause her, or that the impact of these events has largely resolved for her. I do not know why she made that choice and I do not reach any conclusion in that regard.
96In the absence of a victim impact statement, I cannot take into account the specific impact of your offending on her. However, informed by the experience of this Court, I can reasonably infer that your offending had an impact on her in the immediate period following the incident and, again, informed by the experience of this Court, is likely to have had at least medium term consequences.
97There was a plethora of evidence given at the trial of her state of distress in the immediate aftermath.
98The rape was clearly a stressful and confronting event when it occurred, no doubt exacerbated by what occurred after.
99Mr Crouch referred me to the Court of Appeal decision of TheQueen v Kenneth Paul Rankin.[16] The Court approved an approach wherein the sentencing Judge had regard to the potential impact which the ordinary course of human affairs suggests is likely to flow from this type of crime.
Judges in this day and age do not need experts to draw such conclusions. It is commonplace now for courts to take into account the potential impact which sexual abuse is likely to have in moulding the character and personality of its victims. Courts cannot turn a blind eye to the state of knowledge which is available to them and which is now well recognised by the community at large.
[16] TheQueen v Kenneth Paul Rankin [2001] VSCA 158
100Although that was a case about child sexual abuse, the principles are apposite. Victims of rape often talk about their difficulty forming relationships, trusting others, engaging in intimate relationships. They may need counselling to recover their sense of confidence and to deal with the insult to their bodily integrity.
101As I indicated, I can reasonably infer that Ms Anh suffered some such impact from both of these offences.
Personal Background
102I now turn to your personal circumstances. I have been provided with submissions by your counsel Mr Richter KC. I am also assisted by a report dated 14 November 2024 from Psychologist, Mr Tim Watson-Munro, a report dated 1 November 2024 from
Dr Pamela Matthews, Forensic Psychologist, and four Court Integrated Services Program Reports prepared by Case Manager Katherine Taylor during the period between November 2021 and May 2022, as well as a number of letters written by your family and friends.103You were born in Vietnam and are a Vietnamese citizen. Your parents remain living in Vietnam. They are owners of a pharmacy shop and have been for 30 years.
104The decision was made for you to relocate to Australia for education purposes when you were 15 years old. You came here at that young age without your parents. You lived with two guardian families, one for about four months, and another for about three years until you turned 18. Although you have extended family in Melbourne, you were living through those years in New South Wales.
105You had difficulty adjusting to life in Australia. You were overwhelmed by a different language and culture. You had a poor command of English and report being too shy to speak. You report longstanding symptoms of depression, anxiety and low self-esteem stemming from that time. You were a boy living in a foreign place without close supports. You believe, no doubt accurately, that your schooling performance was negatively impacted and that you under-achieved at high school.
106You went to school at a college in the Sydney CBD before transferring to a number of high schools. Having hoped to study accounting you had to settle with a place at a TAFE course studying a diploma. Your command of English and commensurately your marks improved during that 12 month period and you were then able to gain entry to the University of Technology Sydney where you commenced a Marketing and Communications Degree. I agree with the comments of Mr Watson-Munroe that it is to your credit that you were able to complete you schooling and gain entry to tertiary study against the backdrop of your difficulties in adolescence.
107After about a year you left that course to start a restaurant in partnership with a friend. You ran the restaurant successfully for two years, but it then started to flounder in the third year. You were losing approximately $2,000 per month and ultimately the restaurant was closed. According to Mr Watson Munroe that failure exacerbated your underlying symptoms of depression and low self-esteem.
108You then applied for a tourist visa and relocated to Melbourne towards the end of 2017. Melbourne also had the benefit of having a number of relatives living here. They offered you accommodation and support. You decided to return to study, completing a Bachelor of Accounting at a college in Melbourne CBD in two years.
109During your period of your study, you worked with a cousin in a manicure/pedicure salon in Geelong for about two years. After completing your accounting degree you remained working with that business as their accountant. That work continued until your remand.
110About eight years ago you had a relationship with a woman for about six months. You and she have a son together who is now seven years old. You have limited access to him, seeing him about twice a year, although you describe a positive relationship with your son and his mother. It seems the limited contact is not of your choosing.
111At the time of this offending you had no prior criminal convictions. I note, though they are of limited relevance, you appeared in Court in Sydney in 2013 for charges of resisting an arresting officer in execution of their duty for which you received a non-conviction bond.
112It is apparent that you have had difficulties with illicit substances. You began using cannabis as a 19-year-old and continued using that drug throughout your 20s. Your use increased to daily use after being charged with this offending.
113It is apparent from the evidence at the trial and also now reported in the psychological material, that you were also using other drugs regularly. You were using cocaine about fortnightly. You had experimented with methylamphetamine. You were using small amounts of LSD two or three times per week and were taking MDMA (ecstasy) and ketamine, as well as benzodiazepines to aid with sleep to help you come down after other drug use.
114In 2022 you were before Melbourne Magistrates Court for possession of cannabis, methylamphetamine, MDMA and a prescription drug. Those offences were committed in breach of your bail for the offending before me. You were dealt with without conviction and placed on a 20-month adjourned undertaking which you have successfully navigated.
115You were placed on CISP bail at the time you were charged with the drug possession offences. It is apparent you were feeling somewhat out of control at that time. You reported a deterioration in your health after being charged, correlating with an increase in drug use. You report numbing your anxiety through substance use.
116Throughout 2021 you attended numerous counselling sessions as part of your CISP conditions. You are variously described as engaging very well and open to discussing your issues. You were able to identify the positive effect of gradual abstinence and ultimately to not using illicit drugs. You have been prescribed with cannabis oil. You have developed an understanding of how to access mental health treatment and support for problematic drug and alcohol use.
117Positively, you self-referred to treatment with Dr Matthews, attending some seven sessions with her between 7 October 2021 and 8 December 2021. Dr Matthews described you as ‘an intelligent man who participates actively in treatment.’
118By 2022 in the final CISP reports you were reporting sustained abstinence and described as having consistently demonstrated your desire to address your mental health and substance use problems.
119Exacerbating the stressors on you while on bail, your work was somewhat impacted during the COVID-19 lockdowns. However, you report that throughout the period of your bail you have maintained stable employment in a role which requires to you to oversee the operation of a number of retail stores in the Geelong area.
120You have also maintained a relationship with your partner who you met about four and a half years ago. She is a woman with Vietnamese history but who has Australian citizenship. You and she have been residing together for years and she is supportive of you.She and a number of family members were present in Court during your plea and are again in attendance today.
121I have received a number of written testimonials from your family and friends. They all express their dismay at your offending and attest to the fact that it is out of character. Although you had informed your father of the charges, your mother was not informed until you were remanded. They write that that are proud of your Graduation in Australia and the pathways for your future here, and of the fact that you and your partner were building a bright future together as an Australian family.
122They described you as honest, caring and respectful, as someone who thinks of others before yourself. They say you are sorry to them and to your partner for this offending. They confirm you did not tell them of being charged as you did not want to worry them.
123They say you are remorseful and feel guilt and shame over your arrest and offending. They believe you have a bright future in Australia and offer their support. They speak of the shame this matter will bring you and your family.
124Your partner says that during your four year relationship she has observed your character to be ‘…honest, respectful, good heart person and responsible, truly, to help other people and has no intention of causing harm to others. Son is hoping to bring a brighter future for Ason and I for a brighter future together in Australia as a family’.
125She was not told of the charges until you were remanded. She says she has since ‘noticed a feeling of remorse, guilt and shame’ towards her and to your parents. She continues to support you.
126A number of friends and a work colleague express similar sentiments. Your cousin attests to your distress since now being remanded and says you are learning your lesson ‘in a very hard way’ now.
127I take the contents of those references into account.
Prospect of Deportation
128Your immigration status is now uncertain as a result of your convictions and the sentence you will receive for this offending. You are currently on a bridging visa which will likely be cancelled. As a result of the sentence I impose you are likely to be deported.
129Higher Courts have said that is a proper matter for me to consider.[17] In your case you have spent the greater portion of your life, and certainly your formative years, living in this country. You consider it to be your home. You have a son here. You have a partner here with whom you have future plans and goals. You have extended family here. Although your parents remain in Vietnam and are supportive of you, you have not lived with them or in that country for many years.
[17] Guden v The Queen (2010) 28 VR 288; Matamata v The Queen [2021] VSCA 253
130Those are matters which will weigh very heavily on you during your time in custody. I accept the likelihood of deportation and the loss of your relationships in Australia will add to the burden of incarceration and I take it into account.
Plea of Not Guilty
131You ran a trial which is your right. That fact does not aggravate the offending or your personal circumstances. It does not work to increase sentence. It simply means you do not receive the benefits which flow from a plea of guilty in recognition of its utilitarian benefits and the fact that you do not receive any discount on account of a plea which saves the victim from the witness box or which demonstrates remorse or insight.
132Your election to go to trial of course necessitated Ms Anh giving evidence at trial and also at a committal hearing. A range of other civilian witnesses were also required to give evidence.
Remorse
133Although the submission was not pressed, I form the view that there are some expressions of remorse contained in the testimonials. Although you have not expressed remorse for your offending against her, I do accept that you are sorry for what was obviously a distressing experience for Ms Anh.
Delay
134These proceedings have had a lengthy and difficult history. The complaint by Ms Anh was made within hours of these events on 2 November 2019. You were interviewed on 3 November 2019. You were not charged until 24 August 2020. The explanation for that delay was that the matter was being investigated.
135The committal occurred on 15 June 2021.
136The trial in this Court initially commenced before a jury on 14 November 2022. The jury were discharged on 16 November 2022. The trial Judge then became unwell with COVID-19. A decision was made to pre-record Ms Anh’s evidence and the evidence of two complaint witnesses before a different Judge, which occurred on 23 and 24 November 2022.
137Following the pre-recording, a trial date of 22 May 2023 was offered, however your Counsel was unavailable and a date after mid-September was sought. Your trial was then set down for 18 September 2023 and was ultimately listed before me for pre-trial hearing on 15 September 2023. A jury was empanelled on 18 September 2023. That jury was discharged on 19 September 2023 after a different Prosecutor’s opening address traversed an earlier pre-trial ruling. There was insufficient time to complete a new trial and as such the trial needed to be further adjourned.
138It proceeded on 6 March 2024 with the first jury discharged after a juror’s request to be excused. A second jury was empanelled that day and the trial proceeded. That jury could not reach a verdict and was discharged on 22 March 2024. The trial was re-listed on 13 August 2024.
139After a nine day trial commencing on 13 August 2024, the jury retired to deliberate in the afternoon of Friday 23 August and reached unanimous guilty verdicts on both charges at 12 .30 pm on Monday 26 August 2024.
140I take into account this significant delay, none of which can be attributed to your actions but to a series of unfortunate delays caused by illness, the demands of the Court, Prosecution error, and a hung jury. I agree, the fact that no one trial was able to directly follow the other is a further aggravation of the delay. That is, on each occasion you have had to prepare yourself again for the stress of a trial. I take those matters into account.
141I also take into account the fact that after the March 2024 trial resulted in a hung jury, you indicated your intention to seek a sentence indication on the false imprisonment charge. This was rejected by the Prosecution as there was no offer made in relation to the rape charge. Mr Richter KC submits your intention to seek a sentence indication shows insight and understanding of the strength of the case against you, in particular the false imprisonment. Given there was no offer to resolve the rape charge, and the indication was a request for a sentence indication and not a formal offer to plead guilty to the false imprisonment, I can only give very limited weight to that fact, but I take it into account.
142I do however accept the submission made by Mr Richter KC that delay is a significant feature in sentencing you. He submits, and I accept, that the delay in your case is exceptional, and that it should be significantly mitigating.
143Delay is relevant to sentence in two ways: first because it is common that an offender experiences the anxiety and strain of having unresolved serious offences hanging over them for a period of time; and second, it is relevant where an offender can demonstrate efforts towards rehabilitation in the intervening period. Both of these considerations apply here.
144In your case I take into account that you are a person with no prior criminal history. You were 27 when you committed these offences, 28 when you were charged and 32 when the guilty verdict was delivered. Now, five years on from your offending you are no doubt very much affected by having this matter hang over you for that extensive period of time. No doubt you feel yourself to be a very different person.
145I have read the psychological reports. They attest to your history of difficulty generally with low self-esteem and with anxiety and the fact that those conditions have undoubtedly been negatively affected by this period of delay.
146I accept that continuing to work and participate in community activities under those circumstances is very difficult. Nonetheless that is what you have done, maintaining employment, a relationship, stable residence, connection to a range of family and friends and some connection to your son. Those matters demonstrate your capacity for rehabilitation.
147You have not reoffended in any similar way during that period of time. You were on bail from the time you were charged until I remanded you after the jury verdict. You have become abstinent with regard to illicit drug use. Those matters are positive.
148You sought treatment with Dr Matthews. That is to your credit. Her report of your comments about these events reveals some aspects of victim blaming and a lack of insight into or acknowledgement of your own behaviour during this offending. Those sentiments are reflected in some of the contents of some of the character references. Your treatment with Dr Matthews was not sex offender treatment. It is not clear that therapy involved challenge, discussion or dissection of your views and behaviour with a view to gaining insight into or understanding your offending. To that end, there is work for you to do to understand your offending and take responsibility for it in order to achieve full rehabilitation.
149However, ultimately I accept that the experience of these proceedings has likely had a significantly deterrent effect on you, and that there is likely little work for specific deterrence to do.
Prospects of Rehabilitation
150Mr Richter KC submits that your prospects of rehabilitation are excellent on account of your age, limited criminal history, your good work record and the support of your partner and extended family and in addition, the fact that you have sought help for both your mental health and your drug use.
151I accept that those matters bode well for your rehabilitation. In particular, the fact you have not committed any further sexual offences during the period since this offending is a positive.
152In my view your prospects of rehabilitation are very positive.
Current sentencing practices
153I have had regard to current sentencing practices for this offending, having been assisted by Counsel in their submissions. In considering sentencing practices for a standard sentence charge – here, the Rape charge – I must only have regard to sentences previously imposed for those offences as standard sentence offences. That does not limit the matters I am otherwise required to or permitted to consider in determining the appropriate sentence for standard sentence offences,[18] nor is it intended to affect the approach to sentencing, known as instinctive synthesis.[19]
[18] Sentencing Act 1991, s5B(3)(a)
[19] Ibid, s5B(3)(b)
154I was assisted by Mr Richter KC through reference to the Sentencing Advisory Council Statistics, and by looking at the case summaries on the Judicial College of Victoria Sentencing Case Summaries manual.
155As always in looking at any other sentence there are similarities and differences between the offender and the offending. Ultimately, I am required to impose a just sentence in all the circumstances and that is what I have endeavoured to do.
Totality and Cumulation
156At your plea Mr Richter KC argued that I should order significant concurrency given these two offences occurred as part of a series of events, close in time and relationship.
157Although I accept they are part of the one episode, there is a clear distinction between the rape and the events which followed and in my view the false imprisonment is deserving of a separate reflection in the sentencing process.
158However, I am mindful of the principle of totality. That principle means I must determine the appropriate sentence for each charge, and the appropriate amount of cumulation required before standing back and determining whether the overall sentence is appropriate and not disproportionate. In doing so I am very mindful in this case of the mitigating factors at play, significantly that you are a first time offender, that you will now spend some of the best years of your life in custody, that you are facing likely deportation, and that there has been significant delay in finalising this case.
159I take those matters into account not only in setting the head sentence, but in fixing a non-parole period. In determining the latter, I am also mindful of your very positive prospects of rehabilitation and the limited role for specific deterrence here.
Sentence
160In all the circumstances, Mr Le, the sentence I impose is as follows.
161On Charge 1, of rape, you are convicted and sentenced to eight years' imprisonment.
162On Charge 2, of false imprisonment, you are convicted and sentenced to two years and three months' imprisonment.
163I direct that six months of the sentence on Charge 2 is to be served cumulatively on the sentence for Charge 1. The total effective sentence is one of eight years and six months' imprisonment.
164I direct that you are to serve a minimum term of five years' imprisonment before becoming eligible for parole.
165I declare that you have already served 94 days' imprisonment and that that period should be reckoned as having been served under this sentence.
166The prosecution make application for a disposal order to which you consent. I will make that order in the terms sought.
167Are there any matters to raise, counsel.
168COUNSEL: No, Your Honour.
169HER HONOUR: Thank you. Mr Richter, I will ask my associates to leave the link on for Mr Le when I leave the Bench. Thanks very much, Ms Vasilliou, please pass on my thank you to Mr Crouch for his assistance during the trial and during the plea. And Mr Richter I thank you for your assistance during the plea.
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