Director of Public Prosecutions v Lay
[2019] VCC 1629
•7 October 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-02073
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HONG LAY |
---
| JUDGE: | HIS HONOUR JUDGE CAHILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 October 2019 |
| DATE OF SENTENCE: | 7 October 2019 |
| CASE MAY BE CITED AS: | DPP v Lay |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1629 |
REASONS FOR SENTENCE
---Subject:
Catchwords: Sexual assault by psychologist – Gross breach of trust - Guilty plea – First offender – Good rehabilitation prospects - Need for lengthy specialist treatment
Legislation Cited: s5AA Sentencing Act
Cases Cited:
Sentence: 6 months imprisonment with CCO for 2 years 6 months---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Devlin | Ms J. Barnden |
| For the Accused | Mr D. Hallowes Dr M. Fitzgerald | Ms G. Boe |
HIS HONOUR:
1Venh Hong Lay, you have pleaded guilty to two charges of sexual assault of two young female complainants, contrary to s.40 of the Crimes Act 1958. The maximum penalty for the offence is 10 years' imprisonment.
2Publication of anything likely to identify the complainants is prohibited by statute (s 4, Judicial Proceedings Reports Act) and I will not refer to them by name.
3You were a registered psychologist. In April 2017, you worked for the Department of Human Services at Pakenham. Your job was to assess applicants for the disability support pension.
4On 26 April 2017 you sexually assaulted two girls, who were applying for the disability support pension, when you interviewed them at the Centrelink Pakenham office.
5In the morning SB (a pseudonym), who was 17 years old, attended for her assessment interview with her mother. She had previously been diagnosed with borderline personality disorder, major depressive disorder and generalised anxiety. You spoke to her, with her mother, in an interview room. You introduced yourself as a “doctor psychologist” and after a short time in the interview room you asked to speak to SB alone. You took her into the “staff only” section of the office and into a room where you asked her questions about drug and alcohol use.
6In the room, where she was alone with you, you asked whether she was sexually active and told her you needed to medically examine her. You asked her to stand, to touch her toes and to raise her arms and legs.
7You then told her you were required to check her pulse. When you touched her left wrist you told her, as you could not feel a pulse, you would need to touch her neck. After you touched her neck you said you still could not feel her pulse and would need to check her heart beat. You stood over her, put your hand under her top and touch the left side of her chest over her bra. You said you still could not feel anything and would keep trying. You then put your hand under her bra, over her nipple, and felt her breast (first act). You pretended to take a reading of some sort and then removed your hand.
8You asked her whether her blood pressure had previously been low or high. When she said it had been low you said you would check again. You touched her left breast under her bra, a second time, while pretending again to check her (second act).
9You asked her about muscle soreness and said you needed to feel her muscles. You asked her to stand. When she did you squeezed her calves and thighs. You lifted her shirt and squeezed her waist and her shoulders. You then asked her to sit down, you wrote some notes and then took her back to her mother.
10She had been in the staff only section with you for about 20 minutes.
11It was not your role to conduct any physical examination of clients.
12Your office, where you first spoke with SB and her mother, was monitored by CCTV cameras. The room where you sexually assaulted her was not.
13In the afternoon, MK (a pseudonym), who was 16 years old, attended for her DSP assessment interview with her mother. She had been previously diagnosed with Asperger's syndrome, dyslexia, psychosis, anxiety and depression. She also was of borderline intelligence. You spoke to MK and her mother in a monitored interview room and, as you did with SB, you asked to speak with MK alone. You took her to an unmonitored room within the “staff only” section of the office.
14In the room, when she was alone with you, you asked her whether she had a boyfriend and whether she was a virgin. You asked her whether she had any bodily pains. She told you, at times, she felt pain in her hips, heart, neck, jaw and ankles. You told her to stand. You touched all the areas she described and then you lifted her top and touched her hips. You asked whether your touch caused pain. She said it did. You then touched her breasts under her clothes, and on her skin, and moved her breasts, asking if the movement caused her pain (first act). You pulled up her leggings to expose her skin and touched her lower legs. You then turned her around, pulling her leggings and underpants down and touched her bottom and inner groin area, asking whether she felt pain (second act).
15You then pulled up her pants and pretended to check her pulse by touching her wrist and neck. You told her, her pulse was very weak and said you would check her heartbeat. You touched her breast, under her clothing, near her heart (third act). You pretended to take a note of a reading and then took her back to her mother.
16She had been in the “staff only” area with you for about 15 minutes.
17Later that evening, SB told her mother what you had done to her. The next day, with her mother, she reported the matter to police.
18Police arrested you on 23 May 2017.
19When they interviewed you, you told them:
· you were a registered psychologist and had worked for DHS for seven years as a job capacity assessor;
· you conducted psychological assessments of Centrelink clients;
· you reviewed the clients’ files before interviewing them and asked them questions; and
· DHS physiotherapists and occupational therapists physically examine clients, not you.
20You said your manager had suspended you from work pending investigation of a complaint made by a girl you interviewed on 26 April. You said you had seen the girl with her mother and for the last part of the assessment, which involved questions about drug use and trouble with police, to protect her privacy, you asked to speak to the girl alone and her mother agreed.
21You said the girl's medical file indicated she had anxiety issues and you took her to a bigger room when she said she would feel more comfortable in a larger space. You said in the bigger room she said she was having an anxiety attack so, because you were concerned for her safety, you checked her pulse on her wrist, but could not feel anything so you checked her chest over her clothing.
22By your guilty pleas you admit that the explanation that you gave to police was at least in part false.
23When police put to you the details of SB's complaint:
· you denied you touched her breast under her bra, once, or twice (as you have now admitted), or at all;
· you agreed you touched parts of her body when she told you she had bodily pains; and
· you denied you lifted her shirt and squeezed her waist.
24Police reviewed CCTV film of your other appointments on 26 April. The film showed that you had taken another young female client into the “staff only” section of the office. They identified her, MK, and spoke to her on 28 June. She told them what you had done to her. She said she had not told anyone because she felt scared she might get more hurt if she did.
25Police arrested you again on 23 January 2018 in relation to MK's complaint. When interviewed, you exercised your right to remain silent.
26The proceedings first came to court on 15 June 2018. You elected to uplift the charges to this court. A contested committal hearing was conducted on 10 October 2018. Because they were children, neither SB nor MK were cross-examined. You were committed to stand trial on 25 March 2019.
27On 18 March you agreed to plead guilty to the charges on the indictment before me. You entered your guilty plea on 22 March 2019.
28Victim impact statements of SB and her parents [Exhibits B, C and D], and MK and her parents [Exhibits E and F], were read to the court.
29I hope you will reflect on the severe harm your criminal acts have caused the two girls, and their parents.
30SB had previously been hospitalised for mental health issues. You would have been aware of this from her file. As a person in authority, she trusted you. Your sexual misconduct frightened and confused her. She continues to be afraid of people at interviews and of people in authority. She has experienced panic attacks and distress, which are symptoms of a diagnosis of post-traumatic stress disorder. Her parents have suffered guilt and anxiety in dealing with their daughter's trauma. Both daughter and mother have needed therapy.
31MK feels “angry and betrayed”. She had been attending a special school. Because she now is uncomfortable around men and feels generally scared, she has stopped going. A tearful song she wrote in response to your offending was read to the court. The pain and upset you have caused her parents strained their relationship. The family are working with counsellors to rebuild their lives.
32I now turn to your personal circumstances.
33You have no criminal record. However, senior counsel, Mr Hallowes SC, who appeared with Dr Fitzgerald on your behalf, informed me, since you entered your guilty plea on 22 March 2019, you have been charged with sexual assault of another Centrelink clientarising from an incident which occurred on 21 December 2016. Mr Hallowes told me the offending involved conduct “very similar” to your offending here. You will plead guilty to that charge in the Magistrates' Court on 29 October next.
34You are not to be sentenced today for that prior episode of offending. In my view, it has limited relevance to your prospects of rehabilitation and I disregard it for the purposes of sentencing.
35You were born in Vietnam on 9 August 1978. You are now 41 years old. You are the second of four children. When you were an infant your parents fled Vietnam with you and your older sister. As refugees you lived at the Maribyrnong Immigration Centre before moving into government housing at Footscray. The family later settled in the Mulgrave area.
36Your parents worked long hours to provide for the family. Your father worked in a steel factory and your mother a sewing factory. Your siblings and you were encouraged to “always work hard”.
37You attended local schools. At times you were bullied due to your ethnicity. Your final grades fell below your parents’ expectations.
38Nevertheless, you went to university and obtained a bachelors degree in science (majoring in psychology) from Victoria University, an honours degree in applied psychology from Latrobe University, and a masters of organisational psychology from Monash University.
39After completing your studies, you worked at various call centres and volunteered as a Lifeline counsellor. You then worked for recruitment firms where you developed psychometric testing for them. In 2008, due to the global financial crisis, you lost that work. You resumed call centre work until 2010 when Centrelink employed you as a job capacity assessor. You had worked in that capacity for approximately seven years when you offended.
40In comprehensive and helpful written and oral submissions Mr Hallowes SC and Dr Fitzgerald relied on the following documents:
1.Submissions on plea;
2.Report, dated 18 September 2019, of Dr Matthew Barth, psychologist;
3.Report, dated 18 September 2019, of Peter Hanley, psychologist;
4.Report, dated 21 September 2019, of Adrian De Boers, psychologist;
5.Reference, dated 27 September 2019, of Denh Lay, your oldest sister;
6.Reference, dated 25 September 2019, of Loon Lay, a younger brother;
7.Reference, dated 30 August 2019, of Sasheeka Costa, a former DHS colleague;
8.Reference, undated, of James Willy, a La Trobe University colleague;
9.Reference, dated 30 September 2019, of Sithat Chea, another La Trobe University colleague; and
10.Reference, undated, of Wei Lin Lim, a Monash University colleague.
41You told Dr Barth you were labouring under personal stressors when you offended, namely:
·There was tension at work. You were pressured to get people off the DSP and, because of your work load, you were falling behind with your reports;
·In 2016, your father was diagnosed with pancreatic cancer. He died a year later. You grieved for his loss; and
·You felt dejected and frustrated in your relationship with your partner, whom you had met in 2012. Intimacy and affection had waned. She had also struggled with the illness of her father, who was also battling cancer. A month before your father died she broke up with you.
42You have poor self-esteem arising from feelings of under achievement and problems in maintaining healthy intimacy in relationships. You have had four intimate relationships with women. You were highly dependent on each of them. Three of your partners left you for another man. Each separation distressed you significantly.
43You presented to Dr Barth with “noteworthy anxiety-related and depressive symptoms”, which qualify for a diagnosis of “adjustment disorder”. In his opinion, your symptoms, in part, arise from the prospect of incarceration; your “longstanding issues with low self-esteem” compound them. In his view you are at risk of “further deterioration in (your) moods in the period immediately following sentencing”.
44Dr Barth offered a number of other helpful opinions, which I also accept.
45Firstly, it is likely significant personal stress, poor self-esteem and significant intimacy deficits contributed to your offending.
46Secondly, and primarily, you “engaged in very inappropriate sexual behaviour with adolescent females where you were in a clear position of power and authority. (You were) able to act out in a sexually dysfunctional manner with vulnerable (girls) who posed less… threat to (your) fragile self-esteem and where (you were) more likely to have an enhanced sense of control”.
47Thirdly, the “context and nature of (your) offending is clearly concerning and point to a grossly distorted concept of sexual boundaries”.
48While, to testing, you fell into the “low-moderate risk” category of risk of sexual recidivism, in Dr Barth's view, “there is an unequivocal need for concerted specialist sex offender treatment”.
49To Dr Barth, you admitted, when police initially spoke to you, you attempted to justify your conduct. You said, on reflection, and with the assistance of treatment, you have come to understand the “damage (you) have done to these girls”. You have accepted responsibility for your behaviour and expressed shame for it.
50In April 2019, you commenced psychological therapy with Adrian de Boers. Initially, you struggled to open up about your “failures and deficits”. However, over fortnightly sessions, you have “(expressed) genuine (victim) remorse and empathy (and) made genuine progress in wanting to understand (your) behaviours and, importantly, how these behaviours have detrimentally affected… the victims, their families, (your) own family and friends and… partner”.
51In July 2019, you commenced the sex offender treatment program under the guidance of Peter Hanley. He frankly wrote that while your “uptight and defensive demeanour has limited (your) rate of progress, there have been gradual improvements in (your) quality of engagement, which provide a basis for tentative optimism about (your) prospects of rehabilitation”.
52Since your apprehension, you have surrendered your psychologist’s registration and, recognising your professional career is over, you have started a number of small niche photography businesses which are doing relatively well. You have a new partner. Recently the two of you have become engaged to marry.
53Mr de Boers wrote you are working to improve your relationships with your family and friends and you have connected with your religion, worshipping weekly at your Buddhist temple and volunteering to do cleaning work there.
54You enjoy significant support from family and friends, many of whom have supported you in court.
55As is culturally expected of the eldest son, you have remained with your parents throughout your adult life. Since your father's death, you have continued to live with your mother in the family home. You carried the family burden when your father was ill. Your sister and brother wrote of your remorse and shame for your offending.
56You worked with Ms Costa, another psychologist, in the same job capacity assessor’s team, during your seven years at DHS. She saw the stress your father's illness and your workload pressures caused you.
57She has maintained her friendship with you. On the day management suspended you, you told her an allegation of inappropriate conduct had been made against you. At first, you were vague, but “after some time, and with help from (your) family and psychologists, you have expressed to her your remorse and regret”. She confirmed your involvement in the temple.
58Your university friends, all psychologists, wrote of your major emotional stress in 2016 and 2017, of their shock when the learned of your offending, and of the significant steps they have seen you take to address your offending and
re-establish your life. You have expressed regret and embarrassment to each of them.59Mr Hallowes relied on the following factors in mitigation of penalty:
·your plea of guilty for its utilitarian value;
·your remorse, expressed to family and friends and to Dr Barth and Mr de Boers;
·your lack of prior convictions (although he accepted, because your previous good character assisted you in the commission of these crimes, s 5AA of the Sentencing Act requires me to disregard it);
·the significant personal stress affecting you when you offended, arising from your unhappiness in your relationship, the terminal illness and death of your father and work pressures;
·your good prospects of rehabilitation, taking into account the steps you have taken both to address your offending and to address the stressors attendant to your offending, and also taking into account Dr Barth's assessment you are a low risk of re-offending, and your strong family and peer support;
·the delay, producing unfairness to the extent that you have used the intervening time to advance your rehabilitation;
·your mental health, in so far as incarceration will likely weigh more heavily on you and there is an appreciable risk imprisonment will have a significant adverse on you; and
·the additional punishment of the loss of your career as a psychologist.
60Mr Devlin, who appeared for the prosecution, submitted your offending – while involving touching, of two victims, on one day – was, to that extent, a lower end example of the type of offence, the gravity of your offending was substantially aggravated, taking into account:
· the young age of the two victims and the age difference between them and you;
· their special vulnerabilities, which will have been known to you;
· the gross abuse of power, and breach of trust, of the girls, and their mothers, and your employer, which you held as the assessor of pension entitlements; and
· your misuse of that power and trust to isolate each girl from her mother to enable you to sexually assault them.
61He also submitted:
· your prior good character is to be disregarded because it assisted you to commit the offences (s 5AAA of the Sentencing Act);
· the degree of your remorse is qualified, considering you falsely denied your sexual misconduct to police, you showed limited insight into your offending when Dr Barth assessed you, and you were slow to engage with Mr Hanley when you sought his assistance to address your offending; and
· Verdins principles five and six are not engaged, but the additional hardship of prison for you because of your mental condition is relevant in the general sense.
62He submitted general deterrence is the major sentencing factor and only a term of imprisonment is appropriate in the circumstances of your case.
63He submitted I should impose a sentence of imprisonment and fix a non-parole period. Alternatively, he submitted, a combination sentence was within the range of proper sentencing consideration.
64Mr Hallowes had submitted that I should release you on a lengthy community corrections in order to facilitate your treatment and rehabilitation or alternatively that I should impose a sentence of imprisonment combined with a community correction order.
65Sexual offending against children is very serious. Your victims were vulnerable and you abused your power to exploit them for your sexual gratification. You have caused them severe harm.
66The courts seek to protect young persons from harm. General deterrence is a primary sentencing consideration.
67Given the objective seriousness of your offending, with its aggravating features, which Mr Devlin identified and Mr Hallowes acknowledged, I have concluded a term of imprisonment is the only option available to me.
68However, I accept:
· your guilty plea has high utilitarian value;
· your remorse, despite your initial denials, is genuine;
· delay has produced unfairness to you;
· prison will be additionally burdensome for you and there is a risk of deterioration, in custody, of your mental health,
· you have reasonable prospects of rehabilitation having regard to the steps you have taken to address your offending and the stressors attendant to it, your strong family and peer support, and your assessed low risk of reoffending; and
· you have been additionally punished by the loss of your career and the associated opprobrium.
69And, in addition, having regard to the “unequivocal need” for lengthy specialist sex offender treatment, I have decided all sentencing objectives can be met by a sentence which combines imprisonment with a community correction order, tailored to provide for your necessary treatment.
70I have had you assessed for a community correction order and you have been found suitable.
71Please stand, Mr Lay.
72By the sentence I impose, I must denounce your conduct, I must punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation
73Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:
74On charge one of sexual assault and charge two of sexual assault you are convicted and sentenced to six months' imprisonment, in combination with a community correction order, which will commence upon your release from prison on 6 April 2020. The duration of the community correction order will be two years. In addition to the core conditions, which have already been explained to you, I impose the following special conditions:
·treatment and rehabilitation for your mental health;
·treatment and rehabilitation by programs to reduce re-offending;
·supervision; and
·judicial monitoring.
75You will be required to attend this court for judicial monitoring on
7 October 2020, at 9.30 am, when I will see a report regarding your progress on the community correction order.76Pursuant to s.6AAA of the Sentencing Act, I declare, but for your plea of guilty, I would have sentenced you to one year and six months' imprisonment and fixed a minimum non-parole period of 12 months.
77I order pursuant to s.464ZF of the Crimes Act that you undergo a forensic procedure for the taking of a scrapping from your mouth of a sample for placement on the database, on the grounds the seriousness of the circumstances of your offending warrant the order.
78I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken from you will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.
79Finally, Mr Lay, the offence of sexual assault of a child is a class two offence under the Sex Offenders Registration Act 2004. Under the Act you are now a registrable offender and you must comply with the reporting conditions of part three of the Act for a period of 15 years. You must report your personal details to Victoria Police within seven days and you have an ongoing obligation to report your personal details to Victoria Police every year thereafter and to report any change of your personal details during that time. It is an offence punishable by a term of imprisonment to fail, without reasonable excuse, to comply with your reporting obligations.
80Shortly my associate, Ms Phillips, will give you a written notice of your reporting obligations and the consequences that may arise if you fail to comply with these conditions. When she gives you that notice she will ask you to sign an acknowledgement you have received it.
81However before she does that, in order for me to make the community correction order I propose, it requires your consent. So I will have the form of the order prepared and I will ask Dr Fitzgerald to speak with you to read to you its conditions, and to ask you to sign an acknowledgement that you understand that them and if you consent to sign a consent to that effect.
82While that is being done, Mr Devlin, are there any matters arising?
83MR DEVLIN: Nothing, sir, thank you.
84HIS HONOUR: Dr Fitzgerald?
85DR FITZGERALD: Nothing to raise, sir.
86HIS HONOUR: Thank you. Mr Lay, you having signed the document to the effect that you understand the effect of and conditions of the community correction order and consent to it being made, I will now make that order. And Ms Phillips will now provide you with the documents that are required to be given to you under the Sex Offender Registration Act.
87Thanks, Dr Fitzgerald.
88Please remove Mr Lay from the court. And, Ms Ryan, adjourn the court.
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