Director of Public Prosecutions v Kanchana (a Pseudonym)
[2023] VCC 2052
•3 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MONGKUT KANCHANA (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE KELLY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 March 2023, 20 October 2023 | |
DATE OF SENTENCE: | 3 November 2023 | |
CASE MAY BE CITED AS: | DPP v Kanchana (A Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2052 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Aggravated Burglary – Rape – Sexual Offence – Digital Penetration – Bugmy principles – Verdins principles – Genuine Remorse –Deportation Consequences.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991.
Cases Cited:DPP v Alsop [2010] VSCA 325; DPP v Meyers (2014) 44 VR 486; Salvaggio v The Queen [2022] VSCA 88; Guden v The Queen (2010) 28 VR 288; Worboyes v The Queen (2021) 96 MVR 344; CD v The Queen [2013] VSCA 95; R v Verdins (2007) 16 VR 269; Bugmy v The Queen (2013) 169 CLR 571; DPP v Herrmann (2021) 290 A Crim R 110; DPP v Pirimapun [2014] VCC 520; DPP v Hoskins [2018] VCC 2241; DPP v Sims [2004] VSCA 129; Brown v The Queen (2019) 280 A Crim R 257; DPP v Drake [2019] VSCA 293.
Sentence: Five years imprisonment with a non-parole period of three years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Dearman (plea) Mr J. Coulter (sentence) | Office of Public Prosecutions |
| For the Offender | Mr L. Gwynn (plea) Mr M. Cunningham (sentence) | Paul Vale Criminal Law |
HIS HONOUR:
Introduction
1.Mongkut Kanchana[1], you have pleaded guilty to one charge of aggravated burglary[2] and one charge of rape.[3]
[1] A pseudonym.
[2] Contrary to s 77 Crimes Act 1958.
[3] Contrary to s 38 Crimes Act 1958.
2.The maximum penalty for aggravated burglary is 25 years' imprisonment. The maximum penalty for rape is 25 years' imprisonment. Rape is also a Category 1 offence,[4] and as such has a standard sentence of 10 years.[5]
[4] S 3(1) Sentencing Act 1991.
[5] S 5(2G) Sentencing Act 1991.
Summary of Offending
3.The circumstances of your offending were summarised by the prosecution during your plea.
4.On 16 January 2022, Amporn Wattana ('Ms Wattana')[6] went to sleep with her bedroom blinds open and a small lamp turned on in her room.
[6] A pseudonym.
5.At approximately 1.00 am on 17 January, you were walking past Ms Wattana's house when you saw Ms Wattana asleep in her room. You entered the property through an unlocked sliding door.
6.You entered Ms Wattana's bedroom, removed your pants and climbed on top of her, supporting yourself on the bed with your right arm.
7.You then inserted your fingers inside Ms Wattana's vagina whilst she was sleeping. She woke to you penetrating her vagina. Upon being asked who you were, you said 'Shh, I'm going to make you feel good.'
8.Ms Wattana moved out from underneath you, stood next to her bed and told you to leave. You got off the bed and left the room. Jules Nena,[7] a housemate of Ms Wattana's, was in the kitchen at the time. She saw you leave the bedroom. You were not wearing pants. You then left through the same sliding door you used to enter the house. You made a gesture to Ms Nena which she understood to mean that she was to keep quiet.
[7] A pseudonym.
Arrest and Interview
9.As a result of a police investigation, you were asked to provide a DNA sample on 12 May 2022. You consented to this procedure. You were later arrested on 7 June 2022 upon the execution of a search warrant on your property.
10.You were cautioned by police officers and volunteered the following:
'I wanted to make love to the woman. I am sorry, I've got a lot of issues.'
'The house was unlocked, I saw the girl through the window.'
'I got in and out through the door at the back.'
11.You then participated in a taped police interview with the assistance of a Thai interpreter. You answered some introductory questions, but made no comment to the allegations made against you.
Victim Impact Statement
12.A Victim Impact Statement by Ms Wattana was read aloud by the prosecutor at your plea hearing. Ms Wattana said it took her months to truly come to terms with the effects of your offending on her. She is now socially isolated and feels she is unable to discuss what happened to her with anyone in her life as she does not want to cause them any distress. She has developed considerable mental health problems and these in turn have had an impact on her physical health. She no longer feels safe exercising alone and she eats and drinks a lot more than she used to. Her depression and anxiety have caused her to miss shift work without prior notice, leading her to lose one job and almost lose another. Despite the deep impact of your offending on her, Ms Wattana ended on a positive note and expressed her gratitude for being taken seriously and supported throughout her ordeal.
13.I have taken into account the effects of your offending on your victim whose statement was a testament to her fortitude, resilience and indominable perseverance.
Personal Circumstances of the Offender
14.Your personal circumstances were summarised at your plea hearing and in two psychological reports authored by Ms Alison Mynard.
15.You were born in Thailand and grew up in a city in the northeast of that country.
16.At an early age you were abandoned by your mother and father who were forced by their poverty to move away from their home to find work. You were raised by your uncle and aunty. Your aunty threatened to expel you from the home in order to discipline you. She also denied you access to food. You entered the workforce at the age of 10 to provide for yourself and your brother.
17.You told Ms Mynard that due to your upbringing you felt abandoned and that you belonged to no-one. You had an ever-present fear of being discarded by your uncle's family. Your aunt's attitude to you made you feel like an outsider.
18.You have tried to find your father, but you have been unsuccessful. You told Ms Mynard that not knowing your origins caused you to struggle with your identity for some time.
19.You moved to Australia at the age of 14 and lived with your mother and her new family. You reported that you enjoyed a harmonious upbringing from this point, and enjoyed living with your mother, stepfather and infant step-siblings.
20.You attended primary school in Thailand and reported that you struggled with reading and writing due to regional language differences. You had few friends but would often get into fights, and your weekends were devoted to working for sustenance rather than catching up on homework.
21.In Australia you attended the Blackburn Language School for a year, but again struggled to understand the curriculum. You moved to Forest Hill Secondary School, before leaving in Year 11 and enrolling at Box Hill TAFE. You abandoned those studies too.
22.You were offered a job as a chef in a restaurant in a city. You have continued in this position up until the time of your arrest, apart from a short stint as a farm supervisor in 2021.
23.You have been married on two occasions. You first married in 2000 and that union endured for nine years. Your wife's infidelity had a damaging impact on your mental health and you moved back to Thailand. You met your second wife in 2012, and the pair of you lived together for a number of years before moving to Australia in 2016. Whilst in Thailand, you became aware of your second wife's infidelity, but you did not confront her because you feared losing access to your son. Once in Australia you learned she was continuing to contact her lover and she would return to Thailand frequently to visit other men. This caused you considerable anguish and you became hypervigilant in relation to your wife's behaviour. I am told that you separated in custody.
Psychological Reports
24.Two psychological reports prepared by Ms Alison Mynard were tendered at your plea hearing. She has assessed your intelligence and cognitive functioning and has provided an assessment of your risk of reoffending.
25.According to Ms Mynard, you possess traits of Borderline Personality Disorder ('BPD'). You find it difficult to regulate your emotional state which results in your emotions becoming overwhelming and unbearable. As a consequence of your difficult upbringing you have been unable to reach developmental milestones linked to emotional regulation, interpersonal skills and tolerating distress.
26.You continue to struggle with feelings of abandonment from childhood and these remain unresolved. As a result, there is a risk of re-triggering these feelings within your interpersonal and intimate relationships.
27.She says that your decision to offend stemmed from an unconscious need to control some person or some aspect of your life in the context of distress and emotional dysregulation such that you could not control your impulses. She describes how you formed the delusion that raping a stranger would allow you to fulfil your need to be loved and cared for and opined that unless you engage in treatment and rehabilitation you will be at risk of re-offending.
28.Ms Mynard noted that your long-term trauma, neglect and experience of poverty have affected you by limiting your emotional growth and your capacity for reasoned thoughts. She explained that you lack the vocabulary to think through your behaviour, your urges and emotions and that your difficulty in relationships has confirmed to you that you are 'unlovable' and 'not good enough'. She also addressed how your anxiety impacted on your offending as a consequence of becoming overcome by racing thoughts, catastrophising and impaired reality checking. She says that your sense of hopelessness in the future has blunted your interest in planning for your future and thinking through ideas and their consequences.
29.She observed that you are finding custody very onerous, and you are likely to deteriorate given your struggles with interpersonal relationships and difficulties managing your emotions. She says that your relationship with your son has been the most positive factor in your life and being away from him has been very difficult for you.
30.She has assessed you as a moderate risk of re-offending based on the seriousness of your current offending. She noted that you have not engaged in victim blaming or made any attempts to justify your offending and you do not have an attitude that supports or condones sexual violence. Despite this, you have a low degree of insight into your offending, you lack self-awareness, and you are prone to act impulsively without thinking of the consequences.
31.Ms Mynard recommended that you engage with trauma informed therapy whilst in custody as well as a sex offending program to develop your insight and understanding about how your life has led you to this offending. She says you would benefit from treatments such as Eye Movement Desensitisation and Reprocessing therapy, Somatic therapy, Dialectical Behaviour Therapy and Schema therapy.
Defence Submissions
32.Mr Gwynn on your behalf conceded that the offending was very serious and requires just punishment, denunciation, and general and specific deterrence through the imposition of a gaol term. He drew the court's attention to the following features of your offending:
· Neither crime involved a weapon or overt physical force;
· You stopped your assault once Ms Wattana moved out from underneath you;
· You left when you were told to leave;
· Your offending did not have the additional aggravating factor of risk of pregnancy or transmission of a sexually transmitted disease;
· No direct threats were issued;
· The episode was brief and you did not persist; and
· You did not force your way into Ms Wattana's home.
33.Mr Gwynn noted you lack any history of sexual violence. You have a very limited criminal history and this offending is 'aberrant in an otherwise hardworking and law-abiding life'. He contextualised your offending by stressing that your thinking was distorted by the anger and depression you were experiencing consequent upon your wife's infidelity, as well as your lowered cognitive functioning and emotional dysregulation as diagnosed by Ms Mynard.
34.He submitted that you have good prospects of rehabilitation. He characterised your personality as non-violent. There was some support for this assessment in the reports of Ms Mynard who says that on the Violence Potential Index your scores were in the normal range. Whilst on remand you have not had any reportable incidents. You have participated in the only program available to you and you have been employed in the kitchen as a chef. He highlighted that you have never been a user of illicit substances or alcohol.
35.Mr Gwynn also impressed upon the court your strong work ethic in your occupation as a chef and said that this is a protective factor. He added that you are supported by your mother and stepfather but noted that you have had no visits whilst on remand and have not been able to maintain telephone contact with your son which has compounded your isolation.
36.He submitted that substantial concurrency between the charges is warranted. The principle of totality was invoked.
Prosecution Submissions
37.The prosecution submitted that this offending was brazen and predatory, and an attack on a vulnerable victim in a setting where they were entitled to feel safe.
38.The objective seriousness of the offence of aggravated burglary was underscored by reference to the decisions of DPP v Alsop[8] and DPP v Meyers,[9] the latter case delineating the criteria for determining aggravating features.[10]
[8] [2010] VSCA 325 at [26].
[9] (2014) 44 VR 486.
[10] Ibid at [48].
39.The prosecution sought to underscore a number of factors which bear on my assessment of the seriousness of your offending, namely:
(a) The intent at the point of entry was to commit a sexual assault.
(b) The premises was a home, which you entered through an unlocked sliding door;
(c) You entered the property at approximately 1:00 am when you knew the victim was inside asleep;
(d) Your offending has had a significant and long-lasting impact on the victim;
(e) You acted alone and you were unarmed.
40.The prosecution conceded that you did not forcibly or violently enter Ms Wattana's home. Nonetheless, I was taken to statements made by the court in Salvaggio v The Queen to the effect that aggravated burglary where the intent upon entry is to commit a sexual offence is 'an extremely grave crime'.[11]
[11] Salvaggio v The Queen [2022] VSCA 88, [102].
41.As to the charge of rape, the prosecution drew my attention to a number of relevant considerations, namely:
(a) The offending was very frightening and had a lasting impact on Ms Wattana;
(b) The offending was committed in the context of an aggravated burglary;
(c) The rape was digital in nature and thus there was a lessened risk of a transmission of infection and no risk of pregnancy; and
(d) The penetration was relatively short in duration and absent any violence or threat of violence.
42.The prosecution conceded that you were entitled to mitigation in light of the principles in Guden v The Queen,[12] and that your plea is an early plea of guilty entitling you to full mitigatory weight.
[12] (2010) 28 VR 288 (‘Guden’).
43.The prosecution submitted that the relevant sentencing principles are general and specific deterrence, denunciation, just punishment and community protection.
Gravity and Moral Culpability
44.This is grave offending. A young woman asleep in her own home is entitled to feel safe and secure. Your actions have shattered that illusion for Ms Wattana. The ramifications for her are likely to reverberate for years and will colour her relationships with others, her sense of security, her trust, her hope and how she sees the world and her place in it. You entered her home and her bedroom. She awoke to a stranger penetrating her vagina. Your offending was opportunistic and aberrant. Your moral culpability is complicated by the results you returned on formal testing which reveal that you have a very low to extremely low intellectually impaired range of functioning, classified as a borderline intellectual disability. It was submitted that the principles in the case of Verdins are enlivened in your case and the principles in the case of Bugmy. Both cases operate here to reduce your moral culpability.
Guilty Pleas and Presence of Remorse
45.The prosecution conceded that you have pleaded guilty at an early stage, and you have saved the time and expense of conducting a criminal trial. The prosecution also acknowledged that your plea has saved the victim in this matter from having to undergo the trauma of cross-examination at trial. You are therefore entitled to a moderation of your sentence to reflect the utilitarian benefit of pleading and sparing the deployment of the court's resources on a trial. You have also pleaded guilty during a time where the courts are still, to some extent, experiencing the effects of the COVID-19 pandemic, and your plea entitles you to greater mitigation of your sentence, in keeping with the principles enunciated in the case of Worboyes v The Queen.[13]
[13] Worboyes v The Queen (2021) 96 MVR 344, 356 - 357 at [39].
46.Mr Gwynn submitted that you have demonstrated genuine remorse by pleading guilty at the earliest opportunity and by wishing to apologise to Ms Wattana. You have been entirely co-operative with police by volunteering your DNA and making spontaneous admissions. Ms Mynard noted that you admit your shame and you acknowledge that you are entirely to blame for the offending. I am prepared to find that you are genuinely remorseful for your offending, and this warrants a 'substantial reduction in what would otherwise be an appropriate sentence.'[14]
[14] CD v The Queen [2013] VSCA 95, [37].
Prospects of Rehabilitation
47.It was put on your behalf that you have one prior court appearance and nothing for offences of a sexual nature. When police contacted you on 12 May 2022 and asked for a DNA sample you volunteered one knowing that it was likely to lead to your apprehension for this offending. You co-operated thoroughly with police and made a spontaneous confession to them. You indicated an intention to plead guilty at a very early stage and you told police that you needed help for your offending. As previously noted, you have responded as proactively as you can to opportunities for reform and rehabilitation whilst on remand.
48.These features suggest that your prospects of rehabilitation are very positive provided you obtain treatment and counselling. I was advised that you have already commenced undergoing offence-specific counselling in custody. Accordingly, despite Ms Mynard assessing you as having a low degree of insight about your offending, a lack of awareness and a reduced ability to regulate your emotions, I am prepared to find that your prospects of rehabilitation are reasonable. Ms Mynard notes that you expressed to her that you were very ashamed of yourself, and you know you are entirely to blame. I also note that you made no application for bail upon being charged and that reflects an acknowledgement by you of the magnitude of your offending and the inevitability of stern punishment.
Verdins Principles
49.Mr Gwynn submitted that a number of the principles in the case of R vVerdins are enlivened here, such that your sentence needs to be moderated.[15] These submissions were not contested by the prosecution.
[15] R v Verdins (2007) 16 VR 269, (‘Verdins’).
50.Ms Mynard delineates your emotional dysregulation and impulsivity stemming from your Borderline Personality Disorder, accompanied by your depression and anxiety. She assesses that these traits, in conjunction with your recognised lowered cognition, would have impacted on your offending in the following ways:
In terms of the offending, Borderline Personality Disorder predisposed Mr Kanchana to be more impulsive, reckless, emotionally dysregulated and acting out of his overwhelmed emotional state. In addition, his high levels of anxiety at the time also likely impacted on his offending, in terms of impairing his thinking process, overcome by racing thoughts, catastrophising and with a sense of confusion and impaired reality checking. Mr Kanchana’s depression also caused impaired judgment, in terms of feeling a sense of disbelief, meaninglessness, hopelessness and helplessness about his future.
51.On the basis of these uncontested observations, I am satisfied that your moral culpability for your offending is to be reduced in keeping with the first limb of Verdins.
52.I am also satisfied that you are an inappropriate vehicle for the expression of general deterrence and thus the third limb of Verdins is enlivened in your case. General deterrence is not extinguished but it needs to be sensibly moderated as a consequence of your impaired intellectual functioning.
53.It was also submitted that your time in prison already has, and will continue to have, a considerable impact on your mental health, thereby engaging the sixth limb of Verdins. Again, that was based on the conclusions of Ms Mynard that your mental condition is such that you are likely to deteriorate whilst in prison in light of the perceived hopelessness of your future. I am prepared to accept that this limb is engaged and your sentence will be moderated accordingly.
Bugmy principles
54.Mr Gwynn submitted that your childhood experiences operate to reduce your moral culpability in keeping with the High Court's judgment in Bugmy v The Queen.[16] There, the court said:
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.'
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing disposition.[17]
[16] Bugmy v R (2013) 169 CLR 571 (‘Bugmy’).
[17] Ibid, [43]-[44].
55.Courts can use childhood deprivation and its consequential effects on an offender to reduce moral culpability in one of two ways; either by establishing a link between an offender's childhood deprivation and their offending, or in the general sense of acknowledging a person's upbringing and its role in being marred by social deprivation.[18]
[18] DPP v Herrmann (2021) 290 A Crim R 110, 118-120 [36]-[42].
56.In your case, Mr Kanchana, it emerges from Ms Mynard's reports that your upbringing instilled in you a feeling of being unloved and unworthy of love, which when combined with your lowered cognitive functioning and emotional dysregulation, manifested in a desperate desire for human connection and validation. You channelled your inarticulate and inexpressible sense of betrayal into breaking into a stranger's home and violating them intimately and appallingly. I am prepared to find that there is a direct connection between your childhood deprivation and your offending, such that I have lowered your moral culpability in the sense identified in Bugmy.
Delay
57.There has been some delay in resolving your matter. You were arrested on 7 June 2022, and you spontaneously confessed to police en-route to the police station. Thereafter, you indicated through your lawyer an intention to plead guilty shortly after being charged. There was no oral committal and I accept that the delay in hearing your plea is not in any way your fault. I intend to moderate your sentence to reflect the burden of anxiety that you have borne throughout this delay, together with an acknowledgement of the steps you have taken to rehabilitate yourself in that time.
Deportation and sentencing
58.Mr Gwynn submitted that you stand to have your visa cancelled upon completion of your sentence and you face deportation to Thailand. This is likely to have a devastating impact on the sentence you serve and the anxiety and sense of suspense in which your time is served.
59.The effects of possible deportation are identified in the case of Guden v The Queen. In your case Mr Kanchana, you face being returned to a country you left when you were 14. You have not maintained relationships with family there and you have no life and no network to return to there. You have built a life for yourself here. I was told that you have an extremely close and abiding relationship with your nine-year old son. You had received visits from him but these were terminated by your estranged ex-partner, the child's mother. I was told that a friend of yours was charged with taking your son to and from school and that you maintained contact with your son by phoning your friend whilst he was with your son. I understand that these calls are no longer possible and you have now lost all contact with your son. You understand that if you are deported you will have no further role in your child's nurturing or development. It is difficult to conceive of a case where the threat of deportation could cast a more oppressive shadow over the time spent undergoing sentence.
60.You have been here for the better part of 20 years and you have worked extremely hard as a chef. You have raised your son as best you can. Your son, your close family and your friends all live here. Separation from your son is likely to be catastrophic for you. You also stand to lose the chance to obtain citizenship in this country. This will undoubtedly exacerbate your distress enormously whilst you are in custody undergoing sentence, because it is likely to snuff out any hope you would otherwise nurture of remaining close to your son upon your release. I have taken this anxiety into account in sentencing you.
Comparative Cases
61.I turn to a number of cases that share some features with your offending, noting that neither the offences nor the offenders can be equated altogether with yours or you. I am also mindful that current sentencing practices are just one consideration in my sentencing exercise and cannot bind the exercise of my discretion.
62.The case of DPP v Pirimapun[19] concerned one charge of aggravated burglary, one charge of indecent assault, one charge of theft and one charge of rape. The offender was sentenced to six years with a non-parole period of four years. The offending in that case involved similar circumstances. The complainant had been asleep in her bed when the offender climbed in through her bedroom window and digitally penetrated her. In that case the complainant awoke and told the offender to leave and he did so without any threat of violence. The offender was aged 34 at the time of sentencing, a refugee from West Papua and he was co-operative with police. He was not found to have any underlying psychological or psychiatric disorders. Cohen J took into account the offender's limited intellectual skills, limited insight and social skills, his acquired brain injury and the genuine fear and anxiety that would arise out of likely deportation. His offending took place within the context of excessive drinking in a park in contradistinction to yours where you were experiencing severe emotional distress and you were affected by your incapacity to regulate your emotions as a consequence of your personality disorder.
[19] [2014] VCC 520, (‘Pirimapun’).
63.Of note, the offender in Pirimapun pleaded not guilty to rape and as a result the complainant was subjected to cross-examination which Cohen J noted was 'very upsetting for her'.[20] The offender in that case also had a significant history of similar offending such that he was found to have 'a tendency to break into houses of sleeping women to sexually assault them'.[21] You, on the other hand, have a complete absence of any prior sexual violence or related offending and your plea of guilty has spared Ms Wattana the ordeal of trial cross-examination. As you have already acknowledged, your offending was aberrant.
[20] Ibid at 7, [31].
[21] Ibid at 6, [29].
64.In DPP v Hoskins[22] the offender was charged with one charge of aggravated burglary and one charge of rape. He was sentenced to seven years' imprisonment with a non-parole period of five years. He was an Aboriginal man aged 29 at the time of offending. He entered the property by breaking a lock on the rear door of the house. He stole a number of belongings including a computer and a hard drive as well as cash and cards from the complainant's handbag before grabbing a knife and entering the complainant's bedroom. She awoke to the offender raping her with his tongue in her vagina. She demanded that he leave. He did not leave immediately when asked but stayed on the bed until the complainant left the room. Your circumstances differ in that you did not forcefully enter Ms Wattana's home or break any property in order to do so, nor did you possess a weapon at the time and you left immediately you were asked to do so.
[22] [2018] VCC 2241.
65.The case of DPP v Sims[23] concerned an appeal against sentence of one charge of aggravated burglary, two counts of rape and one charge of indecent assault. The offender was sentenced to a wholly suspended sentence of two years and nine months. He had been extremely intoxicated and was affected by cannabis when he entered the bedroom of the complainant who was asleep at the time. He performed oral sex on her and digitally penetrated her. The offender made full admissions to police, he had no psychiatric or psychological disability and the sentencing judge in that case found that the offender had extremely good prospects of rehabilitation. He made full admissions to the police, was a highly regarded chef who was described by the sentencing judge as a 'hardworking and responsible person' who had been 'convicted for the first time of offences of this kind'. The appeal was dismissed.
[23] [2004] VSCA 129.
Sentencing Principles
66.Section 5 of the Sentencing Act 1991 provides that the only purposes for which you may be sentenced are:
(a) To punish you in a manner and to an extent which is just in all of the circumstances;
(b) To deter you or others from committing similar offences in future;
(c) To facilitate rehabilitation;
(d) To manifest the denunciation of your conduct;
(e) To protect the community; or
(f) A combination of two or more of these purposes.
67.I accept that this offending was triggered by your limited capacity for emotional regulation and impulse control in keeping with your diagnosis of Borderline Personality Disorder. I also accept that you have co-operated fully with police and that you have demonstrated genuine remorse. You have, as noted, a very limited criminal history which is unrelated to this offending. I accept that your mental illness, your language and cultural difficulties as well as your anxiety in the face of likely deportation make your experience in custody more onerous. The offending in this case is very serious and I take into account the need for general deterrence given the nature of the offending, although it requires sensible moderation.
68.I also note the standard sentencing regime applies to the offence of rape here. The standard sentence for this offence is 10 years and this takes into account the objective factors that affect the seriousness of the offence. I have considered the decisions of Brown v The Queen[24] and Director of Public Prosecutions v Drake[25] in relation to the impact that standard sentencing will have in your case.
[24] Brown v The Queen (2019) 280 A Crim R 257, 260 (‘Brown’).
[25] DPP v Drake [2019] VSCA 293.
69.Relevantly, I have had regard to the court's distillation in Brown of the principles as follows:
The key new requirement is that a judge when sentencing for a 'standard sentence offence' must 'take the standard into account as one of the factors relevant to sentencing.' This requirement:
·Is to be treated as a 'legislative guidepost', having the same function as the maximum penalty;
·Does not affect the established 'instinctive synthesis' approach to sentencing;
·Does not require or permit 'two-stage sentencing'; and
·Does not otherwise affect the matters which the court may, or must, take into account in sentencing.[26]
[26] Brown (n 22) 260 [4].
70.Section 11A of the Sentencing Act requires me to fix a non-parole period for a standard sentence offence and provides that unless it is in the interests of justice not to do so, I must fix a non-parole period of at least 60 per cent of the relevant term. That term is a term of less than 20 years.[27] I have factored this into my sentence as follows.
[27] S 11A(1)(c) Sentencing Act 1991.
Sentence
71.Mongkut Kanchana, I sentence you as follows:
72.I will ask you to stand now.
73.On Charge 1, aggravated burglary, you are convicted and sentenced to three years' gaol.
74.On Charge 2, rape, you are convicted and sentenced to four years six months' gaol.
75.I direct that six months of the sentence on Charge 1 is to be served cumulatively upon the sentence in Charge 2, producing a head sentence of five years.
76.I order that you serve a period of three years before becoming eligible for parole.
77.I declare that you have served 514 days by way of pre-sentence detention, and I declare this time be discounted against the sentences I have imposed.
78.MR CUNNINGHAM: Yes, that's agreed, Your Honour.
79.HIS HONOUR: Pursuant to s6AAA of the Sentencing Act, I declare that had you pleaded not guilty to these offences I would have sentenced you to a period of seven years' gaol with a non-parole period of four years and six months.
80.Very well, are there any ancillary orders?
81.MR COULTER: There are no ancillary orders, Your Honour.
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