Director of Public Prosecutions v Khanh Phi (a pseudonym)

[2019] VCC 158

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRANG KHANH PHI (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2019
DATE OF SENTENCE:	15 February 2019
CASE MAY BE CITED AS:	DPP v Khanh Phi (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 158

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Duckett	Office of Public Prosecutions
For the Accused	Ms A. Cannon	Leanne Warren & Associates

HIS HONOUR:

1Trang Khanh Phi,[1] you have pleaded guilty to four charges of an indecent act with a child under the age of 16 years.  That crime carries a maximum penalty of ten years' imprisonment.  You are 42 years of age. You pleaded guilty at the earliest reasonable opportunity, and made admissions to police.

[1] This is a pseudonym.

2Those admissions in the overall circumstances of this are important admissions, and being realistic, had you not made them, a successful conviction may not have been obtainable.  I accept that your plea is accompanied by appropriate, indeed profound remorse.  Obviously, you get the utilitarian benefit of that plea of guilty, as I have indicated in circumstances where you have no prior convictions.

3Firstly, pursuant to s.464Z of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  If you refuse to provide such a sample, police may use reasonable force to take it from you.  The situation is that because of the nature of the offending, you will be placed on the sex offenders register, and I advise you that the reporting conditions will be for life.

4When you were ultimately charged with this matter, you spent four days in custody, and I would accept that that has been a salutary lesson to you.  A chronology is that the offending occurred from 2014 to the end of 2016.  A complaint was made in 2018 and a VARE tape was made with the complainant.  You were arrested, interviewed, made admissions, and were remanded.  You were granted bail after four days.

5There was then a, as I understand it, a committal and second VARE.  In the second VARE, a number of serious allegations were withdrawn, and the matter resolved and you were then committed for trial and ultimately arraigned in this court.  As I have indicated, in that series of circumstances, I am not going to go into the detail of it.  Your pleas of guilty and admissions take on an added value.

6A summary of the offending is that you, as I said, you are now 42, were 40 years of age at the time.  You were living in Broadmeadows[2] and you were married and had been married for 15 years with two daughters.  The eldest of those daughters was born in 2006, and at the time of the offences, was between seven and nine years of age.  The younger daughter was under five years of age at the time of the offending.

[2] This is a pseudonym.

7Between January 2014 and December 2015, the complainant was in her bedroom in the house.  You came in, laying with her, and began spooning her, that is, lying behind her, and simulating sexual acts on her, by rubbing your penis against her anus.  She could feel that, and you asked her a number of times, "Can you feel it?" and "Do you like it?"  She did not reply.  That is Charge 1.

8Charge 3 was between 1 December and 31 December 2016.  The sisters had set up a small tent under or near the dining room table in the house.  The mother was asleep in the bedroom.  In that situation, you entered the tent, positioned yourself between the two girls.  You then rubbed the breast of the complainant for approximately five minutes, though I would not place a lot of faith in a child's estimate of time.  That gives rise to Charge 3.

9She told you to stop and in fact you did.  Approximately five minutes later, you got up, left the tent, got a glass of water.  When you returned and lay down, the complainant pulled down your shorts and kissed your penis.  You had not requested this, and on the face of it, it is a very odd situation to exist, and I do not intend to investigate any further.  What I have been told from the Bar table, and I thank counsel for this, is that there are apparently on the phones of either yourself or your wife or videos of yourselves having sex and your daughter had access to those phones.  I take it no further than that, other than you pulled the complainant back up and left the tent.  Clearly the incident was not instigated by you in that direct sense.  My first reaction to it was, it was not far short of a Dalgleish type of incest, but upon reflection, it is not in that league.

10In any event, the next charge, or the fourth charge is between 1 December and 31 December 2016.  You took the complainant into a bedroom, turned a lamp on.  You removed your shorts and her clothing and touched her vagina.  That gives rise to Charge 4.  At various times whilst this was going on, you would tell her not to tell her mother what was going on, you would tell her not to tell her mother what was happening, and "All dads do this to their daughters".

11I have indicated how the record of interview came about and the situation was that complaints were made, albeit the Vietnamese or Filipino descent, a family meeting was to be held, and my belief would be that had that occurred and the matter stayed there, the system would never have heard of it.  But what did occur was that the complainant made mention of this matter at school, and it was compulsory reporting.  The police became involved and it went from there.

12As I have said, to your credit, you made appropriate admissions went confronted not only by your wife, but also when confronted by police.  I do not think I need to go through the contents of the record of interview, they speak for themselves.  The offending is obviously serious.  There is a serious breach of trust involved and it extends over a period of time.  Because of the application of general deterrence, I think in your situation, specific deterrence are of little significance.  There must also of course be a sentence which imposes appropriate denunciation and appropriate punishment.

13In a situation such as this, an accused person is often incarcerated.  In this matter, I have victim impact statements from the complainant, your daughter, and from your partner.  I have read those victim impact statements on a number of occasions; clearly this sort of offending causes emotional distress and psychological distress, and bewilderment particularly to the daughter, as to how this would have come about, when you should have been looking after her, and not violating her in this way.

14On the other hand, in this particular situation which is not all that often the case, it is clear that neither of them wants you incarcerated, and the fear is that your incarceration would have consequences for them, such as potentially at least losing the house, and also the changes in schools for the child, and the financial difficulties your wife would have.  I am told from the Bar table, and I accept that you are employed and that your income is applied towards your family.

15You have a very good and long work record.  Incarceration would bring an end to that, and I think that the potential consequences to the complainant and her mother, and the whole overall family structure would be severe indeed.  It is not a situation of exceptional circumstances or anything else, it is just the reality of having a victim effectively punished twice; I am sure she would have massive guilt if you were to be locked up.

16But be all that as it may, the circumstances are that there is an intervention order in place which keeps going for some time.  DHS have become involved, your daughter wishes the family to be re-united, that is complete, and so does ultimately it would appear, your wife and yourself.  I am satisfied that with those matters in place, those protective factors in place, the risk of you being put in a situation where offending such as this could occur again, is very limited indeed.

17Tendered on your behalf is a letter from yourself which I have read and so has the Crown, and also a report from psychologist, Mr Cummins.  Because of the nature of the offending, technically there is a paedophilic diagnosis but it certainly does not appear to be perjury.  There is no suggestion of you ever having behaved in this way before, and you are now in your 40's.

18I think that the risk of you re-offending against your daughters is very low indeed, and I accept that there is a very low risk of you offending against other children.  I do not need to go through your history.  You came to Australia from Vietnam.  You have been married for 15 years.  You have got two children.  Obviously, you have made every effort to look after them in a financial sense, although obviously this offending flies in the face of your responsibilities as a father.

19Since it has occurred, you have undergone counselling.  You have expressed appropriate remorse and that counselling has taken place in the presence of Madam Interpreter who is present in court today, who is well known to me, and who I have no doubt, gave her views as to the nature of your offending, during the course of that counselling.  I accept that in a cultural situation, that would have had a very dramatic effect upon you. 

20Mr Cummins, who has been around for a long time, said that you present as being quite rigorously remorseful, embarrassed, and ashamed, concerning your offending.  Your prospects of your rehabilitation I think, should be very good.  I have already indicated what I think about the risks of your re-offending.  It then becomes a question whether there should be an active - or has to be, not should be.  Has to be an active custodial component to your sentence.

21I am well-aware of the authorities such as Bolton and the like, and counsel to their credit, did not take me there.  It is a situation where, I think in all the circumstances here, a sentence of a community corrections order can suffice.  It will be with conviction, which is a punishment in itself.

22It will be for a period of three years, so that any courses that Corrections decide you need to undergo, it will be time to do it.  I have had you assessed, and you have been found acceptable.  That will be with conviction and over three years.  It will also be in that situation, 300 work hours to be performed within that three year period of time.  But I direct that hours spent in treatment programs, can be deducted from those work hours.

23For the purposes of the transcript, and there will be quite a lot of I would have thought of supervision and attendances by you required over a significant period.  It will be the community work that I have referred to, treatment and rehabilitation for drugs, treatment rehabilitation for mental health, treatment and rehabilitation of programs to reduce re-offending, which I am anticipating will be the sex offenders program, and supervision.  That to me, seems to be an adequate response to your conduct, bearing in mind the consequences of it to others and your obvious attempts to rehabilitate yourself.

24Pursuant to s.6AAA, I say that in situations such as this, but for your plea of guilty, and that obviously encompasses the admissions and work you have done since, had you come along and fought this out in court, I would have been sentenced you to be imprisoned for a period of at least six months, followed either by parole or a CCO.  Any other orders that I have to make?

25MS DUCKETT:  There are no orders to be made, Your Honour.

26HIS HONOUR:  Nothing else?  No, thank you, Ms Duckett.  I will just need him to sign the register form.  Actually, sorry, I should have mentioned.  When I am talking about protective factors, I meant to mention this too.  That he is on the sex offenders register.

27MS DUCKETT:  Yes.  I was just talking to my instructor about that very thing.

28HIS HONOUR:  I have got a note here, I did not say it.  All right,
 Mr Khanh Phi, could you stand up for me for a moment, please.  You and the family have done the best that you can to try and resolve all this.  I understand that.  You understand that DHS are involved, you have got the sex offenders register, and you have got this Corrections order.

29I accept that you realise how serious this is.  Were you to repeat this conduct, with either of your daughters, or any other child, you will be sentenced for that, and you will be brought back before me, to be re-sentenced for this.  If that happens, I will send you to gaol for a long time.  Do you understand that?  All right.  Thank you for that.

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