Director of Public Prosecutions v Lo (pseudonym)

[2021] VCC 460

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAO XUAN LO (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	13 April 2021
DATE OF SENTENCE:	21 April 2021
CASE MAY BE CITED AS:	DPP v Lo (pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 460

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:          Indecent act with child under 16 - persistent sexual abuse of child under 16

Legislation Cited:  Sentencing Act 1991, Sex Offenders' Registration Act 2004

Cases Cited:

Sentence:5 years and 6 months' imprisonment, non-parole period 3 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Duckett	Office of Public Prosecutions
For the Accused	Mr J. Kantor	Monica Shamon Lawyers

HIS HONOUR:

1Mr Dao Xuan Lo[1], you have pleaded guilty to one charge of indecent act with a child under the age of 16 years, for which the maximum penalty is 10 years' imprisonment; and one charge of persistent sexual abuse of a child under the age of 16 years, for which the maximum penalty is 25 years' imprisonment.

[1] Dao Xuan Lo is a pseudonym

2You are presently 47 years of age, having been born in October 1973, and you were aged from 42 to 46 when the offending occurred from April 2016 to May 2020. 

3You do have a criminal record, about which I will go into more detail shortly.

4At the time the offending was disclosed, you were employed from 9 am to 3 pm five days a week as a machine operator at a pharmaceutical company. 

5The victim in this matter, your stepdaughter, was born in Vietnam in September 2005 and was aged between 10 and 14 years when this offending occurred, although there had been some earlier offending from when she was aged around eight.

6The background to the matter is as follows. 

7In 1990 you moved to Australia and you are now a naturalised citizen.

8In 2010 you met your wife and married her in Vietnam.  Your wife had been married previously and the victim is the child of that marriage.  You and your wife then moved to Australia with the victim.

9The family initially lived in one Melbourne suburb but moved to another in 2013 and then in 2019 moved again.  A son was born in October 2013 and your brother also lived with your family.    

10Your wife is a hairdresser and worked daily from 9 am to 5 pm.  On Fridays her shift was a 12-hour shift and did not conclude until 9 pm.  You and/or your brother were largely responsible for the victim being picked up from school and looked after until her mother returned.

11In her original complaint, the victim said:

·     ‘That sexual abuse by her stepdad has been occurring since she moved to Australia, she was around 8 years old’

·     ‘That her stepdad has been touching, fondling and kissing her since 2011. He sometimes touches her breasts and has inserted his fingers into her vagina. The last time he penetrated her with his fingers was in the summer school holidays. He has not penetrated her with his penis. He makes her touch his penis’

·     ‘That her stepdad comes into her bedroom an average of 3-4 times a week, normally when her mum is at work, whenever stepdads at home’, and

·     ‘That [a] Police Station was right near her bus stop and she had imagined herself going in many times to seek help and she had run through the scene in her head. She said she was close to but didn't have the guts to go in’.

12The victim told police during her VARE that the first time ‘it happened’ she remembers that she was at a new school and it was pretty scary.  She said that she was ‘pretty psyched up about that ‘cause it was the first time and it never happened to me before.  So I was scared.  I didn't know what to feel, I didn't know what he was doing but I kinda just went along with it.  And around that kind of time he would tell me not to tell anyone, not to tell my mum specifically’.

13On 6 May 2020, you were taken to a Police Station and participated in a recorded interview.

14You admitted sexually offending against the victim since she was eight years old.  You made admissions during your record of interview to the victim having touched your penis when her younger brother was a baby (whilst the victim was approximately eight years of age) and that the last time this had occurred was 'probably weeks ago'.

15You told police that the ‘last time’ the victim touched your penis ‘weeks ago’ was an occasion that you went into her room to check she was doing her homework and that you had exposed your penis and made her masturbate you until you ejaculated.  You stated that it happened a lot of times.  You also said:

·     That the abuse had been ongoing for years and you were unable to distinguish between incidents due to the fact that it happened so often;

·     That the instances would happen probably once a week and sometimes none;

·     That you had told yourself - "You've got to stop it, you know, it can't happen, but it keep happening, you know, until prison. Yeah like, today, you know, I see how wrong it is, I learn my lesson’  You also said that ‘you could not help yourself’ and that you are just a ‘regular man’ and knew you were ‘getting yourself into trouble’; 

·     That you didn’t know and couldn’t really remember how many times you penetrated the victim but ‘sometimes once a week, sometimes once a month, but then, you know, until today.’

16Throughout the interview, you also made very significant admissions as to sexual acts beyond those mentioned by the victim.

17As to the charges, the circumstances are as follows. 

18Between 13 April 2016 and 30 June 2017, you intentionally touched the victim on her vagina.  In the family home at that time the victim had her own bedroom and her mother slept in a separate bedroom with the younger child.  During this time, you would often sleep on a couch in the living room of the residence.

19One night while the victim was in Grade 5-6 at school and aged approximately 11 years of age, she was asleep on the bottom bunk of her bunk bed when you entered the room and sat on the edge of the bottom bunk bed.  You then leaned over and reached under the bedclothes and started touching the victim's vagina over her night clothes using a 'grabbing, squeezing' motion that she has described in her VARE as follows,

‘He was maybe feeling it, he was squeezing it…mostly from his fingers onwards…and then he was grabbing it… yeah’.'

20You did this for ‘a minute or so’ and then left telling the victim not to ‘tell anyone’.  This conduct is represented by Charge 1 on the indictment of indecent act with a child under 16 years.

21Between 19 September 2017 and 6 May 2020, you persistently sexually abused the victim in that, on at least three occasions during that period, you took part in one or more of the following acts with the victim.  (Some details are referrable to the victim's VARE and others to your admissions in your record of interview.)

22The details in basic summary are as follows;

(a)  Between 19 September 2017 and 6 May 2019, you sexually penetrated the victim by introducing your penis into the victim's mouth.  This offending is referrable to your record of interview during which you stated that when the victim was approximately 12 years of age, you made her suck your penis in the lounge room at your home to the point where you ejaculated on her chin.  I note that the evidence of oral penetration and the act of ejaculation is solely referrable to your admissions.

(b)  Between 19 September 2017 and 6 May 2020, you sexually penetrated the victim by introducing a vibrator into her vagina.  This offending is referrable to the VARE when the victim told police that you 'used a sexual toy, like a vibrator'.  I note that the evidence of actual penetration is referrable solely to your own admission.

(c)  Between 15 August and 20 December 2019, you sexually penetrated the victim by introducing your finger into her vagina.  This offending is referrable to the VARE when the victim told police she could remember one time when she was approximately 12 to 13 years old.  You also confirmed this in your police interview.

(d)  Between 1 March and 23 March 2020, you intentionally sexually assaulted the victim by groping her breasts and rubbing your groin on her shoulder.  This offending is referrable to the VARE.

(e)  Between 1 April and 6 May 2020, you sexually penetrated the victim by introducing your tongue into her vagina.  This offending is referrable to your record of interview.  I note that this evidence of this act is solely referrable to your own admission.

(f)   Between 10 April and 6 May 2020, you sexually assaulted the victim by rubbing her vagina.  This offending is referrable to the VARE.  You also admitted in your record of interview that when you touched the victim's vagina, you touched the 'sensitive part', referring to the clitoris.

(g)  On 4 May 2020, you sexually assaulted the victim by groping her breasts and later opening her legs.  This offence is referrable to the VARE.

23Those foregoing events are represented by the charge of persistent sexual abuse of a child under the age of 16 years.

24I now turn to your personal circumstances.

25As I have noted, you are now 47 years old and you were aged from 42 to 46 when the offending occurred some five years ago to May last year.

26You do have a criminal record, albeit for matters unrelated to this offending.  From 27 January 1994, when you were aged 20, until 16 April 1996, when you were aged 22, you had some eight court appearances in various Magistrates' Courts for offending which included burglary, theft, using heroin, possessing a drug of dependence, handling stolen goods and failing to answer bail.  You received a variety of penalties including imprisonment, a suspended sentence of imprisonment (which you breached), a community based order (which you also breached) and fines.  During that period I believe you have spent around 12 months in prison over more than one occasion.

27Your drug use commenced shortly after leaving school in Australia.  You commenced smoking cannabis at age 17 and soon became heavily dependent on that and, later, heroin.  It is patently clear from your criminal record that between 1994 and your imprisonment in 1996, you had a serious illicit drug dependency, principally on heroin.

28Thereafter, it appears to have been controlled but not eliminated.  You commenced smoking methamphetamine approximately three years ago and at the time of offending were smoking up to 1 gram of cannabis daily.

29You were raised by your grandparents in Vietnam as your parents were operating a market shop in Saigon.  At age 15, you and your brother left Vietnam as refugees and spent two years in a camp in Malaysia. 

30You came to Australia with your brother at the age of 17.

31You had been educated to Year 9 level in Vietnam, but with no English language skills you struggled with education in Australia, and did not complete Year 9 here.  Your brother has provided some detail of the difficulties you experienced after your arrival in Australia.  In 1990 you sponsored your parents and sister to come to Australia, and gained Australian citizenship in 1992.

32You have a long employment history as a machine operator and as I mentioned earlier, you married the mother of the victim in Vietnam in 2010.

33A report from Mr Jeffrey Cummins, clinical and consulting psychologist, was tendered on your plea.  Apart from the perhaps obvious diagnosis of sexual deviancy, Mr Cummins did not consider that you were suffering from any mental health diagnosis that would have reduced your moral culpability.  Your current symptoms of anxiety and depression are reactive to your legal situation.  Mr Cummins considered that your offending was essentially situational and your risk of committing a further sexual offence was low-moderate.

34The crime of persistent sexual abuse of a child under 16 is a particularly serious offence.  Its serious nature is partly reflected in the maximum penalty of 25 years' imprisonment imposed by Parliament.  The offence of committing an indecent act with a child under 16 is also regarded seriously by the courts.  Children are entitled to feel protected.  Your conduct was predatory, brazen, grossly exploitive, a grave abuse of trust, involved instances of penetration and was protracted over years.  Principles of general deterrence and denunciation are prominent considerations.

35In mitigation, I have taken into account the submissions of your counsel including:

·     your early plea of guilty for its remorse and utilitarian effect;

·     whilst your illicit drug use is not of itself a matter of mitigation, the effort you made and resilience you demonstrated by your application to reducing your heroin dependency is a matter I have taken into account as to your prospects of rehabilitation;

·     your good work history;

·     the rehabilitative courses that you have undertaken already whilst in custody;

·     your verbalised guilt, remorse and shame expressed to police, your family and to Mr Cummins;

·     the more onerous conditions of custody you have had and are likely to continue to experience for some uncertain time because of the COVID crisis; and

·     in particular, the openness and frankness with which you approached the police investigation.

36When police first approached you with the most general accusation, you immediately said, 'I am guilty'.  I accept that your assistance thereafter went beyond basic cooperation and extended to voluntary disclosure of a level of offending not otherwise disclosed by the complainant.  Your cooperation was voluntary without any prevarication and was of high value.

37Accordingly, you are entitled to a demonstrable discount on what I would otherwise impose as your sentence.

38In formulation of the sentence, I have been assisted by the authorities provided by the parties and I have also considered the statistical material available, such as the Sentencing Snapshots for the particular offences provided by the Sentencing Advisory Council, as well as the Court of Appeal and County Court case notes provided by the Judicial College.  I have also read the detail of comparable sentences for what assistance they might provide.  Ultimately this case falls very much on its particular facts, particularly as to the issue of assistance to the authorities.

39Overall, I consider that your prospects of rehabilitation are good, especially if you conscientiously apply yourself to any sexual offender program or programs that may be available to you whilst in custody.

40Mr Lo, I will now deliver your sentence.

41On Charge 1 of indecent act with a child under 16, you are convicted and sentenced to 12 months' imprisonment.

42On Charge 2 of persistent sexual abuse of a child under 16, you are convicted to sentenced to five years' imprisonment.

43Charge 2 is the base sentence.

44I direct that six months of the sentence imposed on Charge 1 be served cumulatively on the sentence imposed on Charge 2.

45The total effective sentence is five years and six months' imprisonment.

46I direct that you serve a minimum period of three years' imprisonment before being eligible for parole.

47Pursuant to s.18(4) of the Sentencing Act1991, I declare that the period of 350 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.

48Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, the total effective sentence that would have been imposed is nine years' imprisonment with six years to be immediately served.

49Now, there is a further matter to which I need attend, Mr Lo.  I need to speak to you about the provisions of the Sex Offenders Registration Act. 

50The offences to which you have pleaded guilty are registrable offences pursuant to the provisions of the Sex Offenders Registration Act 2004, and by reason of you being sentenced for these offences you are a registrable offender obliged to comply with reporting obligations imposed by that Act.

51As required by s.5(2BC) of the Sentencing Act, in sentencing you I have ignored any consequences that may arise, and in this case do arise, under that Act from the imposition of the sentence today.  In other words, the reporting burden that you carry as a registered offender is not a matter that can objectively influence the imposition of a just sentence.

52Further, pursuant to s.50 of the Sex Offenders Registration Act, I am required to give you a written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations.

53I am also required to inform you of the length of your reporting period, which is for life.

54My associate will mail to the prison for you the Notice of Reporting Obligations form which I have already signed.  I formally waive any requirement that you sign the Acknowledgement that you have received the form.

55That concludes my sentencing remarks.  Is there anything else from either counsel?

56COUNSEL:  No, Your Honour.  They are the matters.

57HIS HONOUR:  No.  Thank you.  Adjourn the court please.

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