Director of Public Prosecutions v Nguyen

[2016] VCC 1801

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01489

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUC NGUYEN

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	18 November 2016
DATE OF SENTENCE:	18 November 2016
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2016] VCC 1801

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic
For the Offender	Mr J. McLoughlin

HER HONOUR: 

1Duc Thinh Nguyen, you have pleaded guilty to one count of sexual penetration with a child under 16.  This is a representative count.  The prosecution summary relies on two occasions that this charge represents.  The significance of the charge being representative is twofold;

1)It should be understood the occasion referred to is not an isolated event;

2)It provides  wider context for the extent of your offending, namely sexual intercourse on two occasions.  The maximum penalty for this offence is ten years.

2You came to Australia to study in September 2014.  You were then aged 19 and had just completed Year 12 in Vietnam.  On arrival in Australia you lived with an uncle and his family in Reservoir.  You commenced playing soccer with Pham Truong[1] and discovered his family were friends with your uncle.  You met Pham's sister Mai Thi Truong[2] in February or March 2015 through Pham and began exchanging text messages with her.  You thought she was one to two years younger than her brother.

[1] A pseudonym

[2] A pseudonym

3In March 2015 your uncle died suddenly, although you remained living with his wife.  In June 2015 you accepted an invitation to move into Ms Truong's home in the spare room with her parents and siblings.  Around that time you and her became boyfriend and girlfriend.  You were aged 20 and she was aged 15.  The relationship ended about a month later.

4Between 9 June 2015 and 1 August 2015 you had sex with her on two separate occasions in your bedroom.  She believed you knew her age because of your friendship with her brother.  You did not use protection.  You remained living at the house up until December 2015 when you returned to Vietnam as your mother was seriously ill.

5You saw Ms Truong's family at this time as they were also in Vietnam.  You also continued to pay rent to them.  You returned to Australia on 3 March 2016 and resumed living with the Truong family.  When Pham discovered shortly after you came back that there had been a sexual relationship between you and his sister he was angry with you and told you to move out.

6The matter was then reported to police.  You moved out and lived with your aunt in St Albans, where you now reside.  You were interviewed by police on 23 March 2016 and admitted Ms Truong was your ex-girlfriend.  You said you thought that she was 17 or 18.  You said you never discussed her age.  You said, "To be honest when I first met her I didn’t ask her so I don’t know how old she is."  You said she told you that she was in high school, and that you started dating after you met at a party organised by her brother.  About a week within moving in, you had a physical relationship with her and admitted having sex with her twice in your bedroom.

7You said you did not know the law in Australia in relation to the age of consent and that you were told she was underage after it had happened.  I was provided with a victim impact statement from Ms Truong.  The offending has affected her relationship with her family and she has had trouble eating, sleeping and with schooling.  She is regretful, angry and sad.

8You were born on 5 June 1995 and are currently 21 years of age.  You are a Vietnamese citizen and at the time of the offending were studying in Australia.  Your student visa expires in December 2017.  You are the oldest of four children.  Your siblings are 16, 11 and 6 and are all attending school.  Your family live in a small town not far from Ho Chi Minh.  Your father runs a transport business and you used to assist him doing various jobs after school.

9You completed Year 12 and in mid-2014 came to Australia aged 18 to Study at Deakin University.  You completed an English preparation course and commenced a marketing degree in 2015 but struggled due to your lack of English.  During this period you were supported by your parents and also did some work in hospitality.  After six months you gave up the course and enrolled in a motor mechanics course at Kangan Institute.  You deferred commencement of the course when your mother became ill and you returned to Vietnam in late 2015.

10On returning to Australia in early 2016 you commenced studying at Acumen Education and are currently undertaking Certificate IV in Automotive Mechanical Diagnosis at the North Richmond campus.  I received relevant documentation regarding your completion and progress in respect of your studies.  You should complete this course in the next 12 months and then you plan to go to Victoria University to study marketing. 

11You commenced work at a retail bakery in Melton in April 2016.  You work approximately 20 hours per week assisting in the baking and doing cleaning.  You usually start work at 11.30 pm with money going to your board and education fees.  You also have assistance in that respect from your parents.  You are a youthful offender with no prior criminal history and apart from this matter are of otherwise good character.  You have no matters outstanding.

12I take into account your plea of guilty, it was entered at an early stage.  The guilty plea reflects acceptance by you of the wrongfulness of your conduct.  The offence occurred in the context of a boyfriend/girlfriend relationship where there was not an extreme age discrepancy or power imbalance.  You found yourself in a foreign country and were relatively socially isolated when your relationship with Ms Truong developed.

13However you were invited into the house and were a boarder in her home.  This offence is designed to protect young people in Ms Truong's position who are presumed to not have the maturity to engage in such conduct.  I accept the circumstances of this offence are at the lower end of seriousness.

14Your counsel submitted in the circumstances of this offending and having regard to the principles relating to the sentencing of youthful offenders and the principle of parsimony, a custodial sentence would not be appropriate in this case.  This was not disputed by the prosecution and I accept that submission. 

15In all of the circumstances and having regard to the relevant sentencing considerations I propose to release you on adjournment without conviction or in the old terms, a bond.

16That is an undertaking pursuant to s.75(1) of the Sentencing Act that you will be placed on an undertaking for a period of 12 months and within that time you must be of good behaviour during that period.  You must attend court if you are called upon to do so in that 12 month period.

17As I indicated I do not propose to record a conviction given the circumstances of this offending and your age. An application has been made pursuant to s.464ZF of the Crimes Act for a forensic sample.  Again given the circumstances of this offending and your age I do not propose to make such an order. 

18Pursuant to the Sex Offenders Registration Act, the offence of sexual penetration of a child under 16 is a Class 1 offence pursuant to that Act.  Since you have been found guilty of one Class 1 offence you must comply with reporting conditions under the Act for a period of 15 years.

19My associate has that order now and will provide that to you.

20MS MALOBABIC:  If Your Honour pleases.

21MR McLOUGHLIN:  Thank you, Your Honour.

22HER HONOUR:  Thank you.  Are there any other matters, Ms Malobabic?

23MS MALOBABIC:  No, Your Honour.

24HER HONOUR:  Thank you.

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