Director of Public Prosecutions v Pah Eh
[2024] ACTSC 55
•1 March 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Pah Eh |
Citation: | [2024] ACTSC 55 |
Hearing Date: | 29 February 2024 |
Decision Date: | 1 March 2024 |
Before: | Berman AJ |
Decision: | (1) The offender is convicted of the offence of persistent sexual abuse of a child or young person under special care (CAN2023/932) and sentenced to a period of imprisonment of 2 years and 3 months commencing on 10 February 2024 and concluding on 9 May 2026, with a non-parole period of 1 year and 3 months commencing on 10 February 2024 and concluding on 9 May 2025. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – persistent sexual abuse of a child – early guilty plea – consideration of the influences on the offender as he was developing – finding of reduced moral culpability – significant consequences for complainant – where general deterrence of prime importance – term of imprisonment imposed |
Legislation Cited: | Crimes Act 1900 (ACT) s 56 |
Cases Cited: | Allred v R [2015] ACTCA 21; 10 ACTLR 325 |
Parties: | Director of Public Prosecutions Lwen Pah Eh ( Offender) |
Representation: | Counsel L Etheredge ( DPP) R Edney ( Offender) |
| Solicitors ACT Director of Public Prosecutions Andrew Byrnes Law Group ( Offender) | |
File Number: | SCC 253 of 2023 |
BERMAN AJ:
Facts
1․The offender was born in a Karen refugee camp in Thailand. His father died when he was seven and his mother abandoned him and his siblings when he was 12. He came to Australia with one of his brothers when he was 16. He started to attend a particular church in the Australian Capital Territory which held a regular service offered to the local Karen community.
2․Also attending those services was the complainant in this matter. I will not name her in order to protect her privacy but referring to her as 'the complainant' is not in any way intended to depersonalise her or to minimise the effects of the offence committed against her by the offender.
3․She first met the offender when she was 10, but once she turned 15, she began socialising more with the offender through their joint attendance at the youth group at the church. He is eight years older than she is. They became closer over time. Not only was he part of the same community she was, but he was her second cousin.
4․In June 2021, when the complainant was four months short of her 16th birthday, the complainant and offender spoke about their relationship. The offender disclosed that he had romantic feelings for the complainant, told her it was not uncommon for cousins to marry, and that she should not be worried about their age. She trusted what he said. Shortly afterwards, they went to a barbeque. Whilst there, the offender grabbed her hand and held it for several minutes.
5․Other members of their church began to notice that the two of them were spending time together. The complainants' parents told her to keep her distance from the offender. As a result, the complainant and the offender agreed to meet in secret to talk about making their relationship ‘official’, something they did a short time later.
6․On a Saturday in July 2021, the two went to a shopping centre. Whilst they were standing in the car park, the offender kissed the complainant on her lips and put his tongue into her mouth. The complainant was shocked but accepted it as their relationship was official. The complainant told the offender this was the first time she had been kissed. They went inside the shopping centre where they continued kissing for a short time.
7․Later, also in July, they kissed again whilst in the offender's car. They got out of the car and kissed again. The offender began to slowly put one hand up the complainant's shirt. She pushed his hand down as she did not want him to touch her. Despite that, he continued to put his hand under her bra where he touched her breast.
8․Something similar happened on 24 July 2021. Again, they kissed before the offender put his hand under the complainant's bra and squeezed her breast. The complainant tried many times to push the offender's hand away, but he continued to keep his hand up her shirt while he kissed her.
9․I mentioned before that the complainant and the offender agreed to meet in secret so that the complainant's parents would not know what they are up to. So, at about 2.00am one morning in either July or August 2021, the complainant snuck out of her house and met up with the offender in his car. On this occasion they kissed. The offender touched her breast, left marks on her breast and chest area (colloquially known as “hickeys”, caused by biting or sucking on the skin), some of which later turned purple, and put his hand underneath her shorts and underwear, lightly brushing the top part of her external genitals for a few seconds at a time.
10․Similar behaviour occurred on 8 August 2021 in the offender's car after a church service.
11․Later, also in August 2021, they had sexual intercourse for the first time. This was on another occasion when the complainant had snuck out of her home in the early hours of the morning. They drove to a lookout, got in the back seat and started to kiss. On a number of occasions, the offender pulled the complainant's pants partway down, but the complainant pulled them up again. Eventually, she gave in and complied with the offender's request to move her pants, but she kept her bra and underwear on.
12․The offender spread the complainant's legs, pulled out a condom and exposed his penis. He put the condom on his penis and attempted to penetrate the complainant's vagina, eventually succeeding. The complainant experienced pain and asked him to stop but the offender did not. The offender eventually ejaculated. The complainant started to cry as she did not think that that was going to happen. She felt shattered and worthless. She had intended to wait until marriage before having sex.
13․After a conversation which occurred sometime later, the complainant felt that what had happened was her fault as she may not have made it clear to the offender that she did not want to have sex with him. The offender told her that because they had already had sex, they should be together as it was less shameful that way.
14․About one week later, she again snuck out of her house to see the offender. They went to a carpark where they both removed their clothes and sexual intercourse took place, with the offender wearing a condom. After that, the offender asked the complainant if she wanted to try giving him a blowjob by performing oral sex upon him. She said no, but the offender kept persisting. As time went on, the complainant felt pressured to do what the offender asked and told him she would do it if he were to wear a condom. The complainant knelt in front of the offender and performed fellatio on him.
15․In the weeks which followed, she began sneaking out regularly to see the offender, having intercourse with him on each occasion. This happened in the order of 10 times. The complainant realised that every time she met up with the offender, he would start touching her and they would end up having sex.
16․By now the complainant was 15 years and 10 months of age. One morning she snuck out of her house, they went to where the offender lived and had penile/vaginal intercourse in his bedroom. Again, the offender asked her to give him a blowjob. The complainant did not want to as she had not enjoyed what happened the last time. The offender persisted and convinced her to do what he wanted. This time, she performed fellatio upon him whilst he was not wearing a condom.
17․Another act of fellatio, this time with the offender wearing a condom, occurred sometime later.
18․On another occasion, the offender and complainant met up together in the early hours of the morning, after which they had penile/vaginal intercourse.
19․A little while later in September 2021, the complainant decided she wanted to end her relationship with the offender, but he did not want to. She was uncomfortable with their age difference and the fact that they were second cousins, but the offender did not seem bothered by this.
20․On another occasion, again in the early hours of the morning, the offender gave the complainant a bunch of flowers. The complainant believed this was to convince her to stay with him. Eventually, they moved from the front seat of the offender's car into the backseat and had penile/vaginal intercourse. The complainant said that she felt powerless, vulnerable, and pressured by the offender, so gave in to his wishes to have intercourse.
21․The complainant continued to try to break up with the offender, but he kept asking her to sneak out with him, promising that he would not do anything sexual to her. However, this was an empty promise, as every time they met up, they would end up having sex. The complainant felt that the offender was not taking her requests that they break off their relationship seriously.
22․Two acts of intercourse occurred one morning in October 2021, both in the backseat of the offender's car. These were the last acts of intercourse that the offender and the complainant had.
23․They continued to associate leading up to the complainant's birthday in November. He wanted to buy her a birthday present and, although she told him not to get her anything, he persisted, and she eventually asked him to get her Apple AirPods.
24․The complainant continually asked the offender what she could do to make him stop wanting to be with her. The offender told her he would stop wanting to be with her if she were to be with someone else. And so, the complainant began talking to more young men. Around November 2021, the complainant entered into a new relationship and told the offender about the new relationship.
25․In January 2022, she ceased all communication with the offender.
26․The complainant had been discussing what was occurring with the offender with her friends. In October 2022, she realised that what had happened with the offender was not right and she had not been able to process it properly at the time as she was only 15 years of age. She discussed the possibility of informing the police about what had been happening with one friend who suggested that the complainant collect more evidence by messaging the offender.
27․On 15 October 2022, the complainant messaged the offender. Part of his response was to say:
[I]f you don't do it with a girl, someone else will, and if you don't stop when a girl says to, they will fall in love with you.
28․Police were notified and the complainant participated in evidence in chief interviews.
29․The accused was arrested on 23 December 2022. He was interviewed by police. He admitted to kissing the complainant but denied, obviously falsely, any other sexual interactions. As a result of the contact I have described, the offender was charged with an offence against s 56 of the Crimes Act 1900 (ACT) (Crimes Act), that being an offence of persistent sexual abuse of a child or a young person under special care. The maximum penalty for that offence is 25 years imprisonment.
30․The offender pleaded guilty at the earliest opportunity, and so the sentence I impose upon him will be 25 per cent less than it would otherwise have been.
Subjective circumstances
31․I spoke a little about the offender's background earlier in this judgment. Let me speak a bit more about him.
32․As I mentioned before, he was born in a refugee camp in Thailand. Whilst living there, he would sneak out for food, having to avoid the patrolling police as he did so.
33․There were no problems with alcohol, drug abuse, domestic violence, or sexual assault in his family as he was growing up.
34․His father died when he was young, and he has no memory of him. A few years later, his mother abandoned the offender and his siblings after re-partnering and going to live with her new family.
35․The offender came to Australia with one of his brothers when he was 16 to join their older brother who was already in Australia. One of his sisters followed him, moving to Australia last year. He lives with his brothers, his elder brother's wife, her sister, and three children. One notable matter, arising from this history, is the absence, from a young age, of the offender's parents or any other person fulfilling this role. I will return to the significance of this later.
36․Apart from a driving matter and the offence for which I must sentence him, he is a man of otherwise good character. He has been working as an apprentice painter for the past three and a half years. A reference by his employer attesting to his honesty and reliability was tendered to me.
37․Also tendered was a letter from the National Vice President of the Australian Karen Organisation, Ms Ester Kyaw. Ms Kyaw has known the offender since he arrived in Australia in 2013. She describes him as a fine young man who is community-minded and committed in church activities. She says that he is remorseful for this mistake and that he has shown a steadfast and resolute demeanour in moving past this mistake in a constructive way.
38․It is also to be noted that his offending ceased at the end of 2021. There is no suggestion of any further offending of any kind in the three years since.
Objective seriousness
39․It is a fundamental part of assessing the appropriate sentence to impose upon someone, to make an assessment of the objective gravity of what they have done. In this matter, I gratefully accept the list of relevant factors identified in the prosecution's submissions, with which Mr Edney for the offender took no issue:
(a)the duration of the relationship;
(b)the nature of the ‘contact, interaction, engagement or association’ engaged in, including whether there was grooming, penetration of any type, or ejaculation;
(c)the frequency or regularity of the ‘contact, interaction, engagement or association’;
(d)the location of the offending;
(e)the circumstances in which the relationship engaged in came to an end;
(f)the age of the victim and the age disparity to the offender;
(g)any risk of pregnancy or sexually transmitted disease;
(h)the power dynamic between the victim and the offender, including vulnerability of the victim, breach of trust, position of authority, exploitation or dominance; and
(i)whether there was physical violence, threats of violence, emotional manipulation, persuasion, coercion, or illicit drug involvement.
40․I will deal with these in turn.
Duration of the relationship
41․The prosecution's written submission identifies the duration of the relationship as being from June 2021 to the end of December 2021. However, there was some modification of that position during oral submissions to take into account the fact that the complainant turned 16 in November and so, even if the relationship continued, it was no longer caught by s 56 of the Crimes Act.
Nature of the relationship
42․I've described the sexual activity between the offender and the complainant, who was at least unwilling on many occasions. The offender appears to have regarded the complainant's objections and what she wanted as largely irrelevant. Of course, it must be recognised that the complainant continued to associate with the offender, knowing that when they met up, it was at least likely that he would have sexual intercourse with her.
43․It must be remembered, however, that the purpose of criminalising sexual offences against children is to protect them from themselves. Children are often not in the best position to decide what is best for them. They are easily taken advantage of by others and so the law exists to protect children from the consequences of the decisions they make as a child which they would not make as an adult.
Frequency
44․As it is clear from the outline of the facts above, sexual contact between the offender and the complainant occurred with some regularity.
Location
45․The sexual acts described above almost always occurred in isolated locations in the middle of the night whilst the complainant was alone with the offender.
The circumstances in which the relationship came to an end
46․As far as the criminal law is concerned, the breach of s 56 of the Crimes Act ended on the complainant's 16th birthday in November 2021.
47․Before then, however, the complainant had tried to end the relationship with the offender, agreeing to see him on condition that he not do anything to her. The offender would agree to this request, but when the offender and the complainant met up, the offender would instigate sexual intercourse with the complainant.
The age of the victim and age disparity to the offender
48․It is notable that the conduct which is the subject of the charge commenced when the complainant was relatively close to her 16th birthday. If it had started three or four months later, no offence against s 56 of the Crimes Act would have been committed.
49․There are many statements made by appellate courts to the effect that the age of the complainant in a child sexual assault matter is an important part in assessing the objective gravity of the offence: see Towse v R [2022] NSWCCA 252. That principle is easily accepted. It is presumably based on the assumption that the younger the child is, the greater the harm that is caused, but that does not obviate the need for me to examine the harm which this offending behaviour, in particular, has caused.
50․There was no victim impact statement tendered. Nevertheless, I am entitled to assume that the offence committed against her by the offender has had significant consequences for the complainant. I have no doubt that she grieves for what the offender did. The age difference between the offender and the complainant was eight years, but that number only tells part of the story as the prosecution accurately points out. That was a significant gap given the different stages of life of the offender and the victim. The victim was a schoolgirl living with her parents who had never even kissed another person. The offender was an adult male with a car and a job. The maturity and power imbalance is obvious.
Risk of pregnancy or sexually transmitted disease
51․All acts of penile/vaginal intercourse occurred with a condom, as did most of the acts of fellatio.
Power dynamic
52․The offender was in something of a position of trust as regards the complainant. He was an older male relative who was able to say things to the complainant in order to get her to do what he wanted, and which the complainant believed.
53․As I mentioned above, when the complainant expressed concern about the wrongfulness of them having sexual intercourse, the offender used this to his advantage by telling the complainant that because they had already had sex, they should be together as it was less shameful.
Physical resistance
54․From very early on during the abuse, the offender overcame the complainant's physical resistance to what he was doing when he was trying to put his hand on her breast. Such behaviour continued.
55․On one occasion, the offender repeatedly pulled the complainant's pants down while she repeatedly pulled them up, until eventually she gave in. The first time the offender and the complainant had sexual intercourse, the complainant asked the offender to stop, and pushed against the offender's shoulders whilst he was on top of her. The offender ignored this.
Other considerations
Moral culpability of the offender
56․Another important factor in determining an appropriate sentence to impose upon an offender is an assessment of the offender's moral culpability.
57․In performing that exercise, it is important to examine the influences on the offender as he was developing. In a case where an offender is being sentenced for stealing in order to buy drugs, the fact that, as the offender was growing up, such behaviour was normal behaviour for members of his family, would, consistent with Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy), lead to a finding of reduced moral culpability. All of us do not have the same childhood, and a decision made by an offender to commit an offence has to be looked at in the context of matters which would have influenced that decision.
58․This is not a case of stealing in order to buy drugs, but the same considerations apply. The offender's decision to do what he did has to be understood against a background which suggests that behaviour we regard as criminal, or at least inappropriate, was not perceived as such by the community in which he grew up.
59․For example, he told a psychologist that:
At the camp I saw a lot of people that are married at 15 or 16 [years of age]. I thought ‘we are Karen, so it is allowed in our culture.’
60․True it is that, as he told the psychologist, he knew that this conduct was illegal, but then so do those drug-using thieves who quite properly had the Bugmy principles applied to them.
61․It must be remembered that his parents were not around for much of his childhood. This meant that his moral instruction was in the hands of others, probably others of about his age. Certainly, there does not seem to have been any person in his life to perform any of the important roles that a parent usually performs regarding the teaching of the rights and wrongs of certain behaviour.
62․The psychologist summarises it this way:
With no moral guidance, Mr Pah Eh was subject to the beliefs of those around him, with no associative framework. His social learning was either influenced by others who placed little importance on his best interests (such as education), or whatever Mr Pah Eh was able to fathom from observation. Particularly, with another male more advanced in his sexual development who was also raised in a refugee camp with few important conversations or guidance, Mr Pah Eh presented as being quite naïve and vulnerable to influence.
63․The psychologist further describes the offender's development as follows:
Without any moral of cultural guidance from trusted sources, Mr Pah Eh was left to learn about the world either through the teachings of others, or his own uninformed interpretation of events.
64․That vulnerability to influence and lack of moral guidance may explain to some extent why the offender ignored the complainant's protestations and physical resistance. As he told both the psychologist and the complainant, he had been told by an older friend who was in the refugee camp with him while the offender was under 16 years of age that he should “keep going if she says no”.
65․The age of the offender must also be borne in mind. People don't suddenly become fully developed adults on their 18th birthday. In this case, the offender was 23 years old when he committed this offence and was described by the psychologist as a “naïve and vulnerable young man”. I will have regard to those circumstances when I decide what sentence to impose upon him.
Effect of imprisonment on the offender
66․The offender spent 20 days in custody after his arrest. There is no evidence of any particular problems he faced whilst in jail, but I have no doubt that this was a traumatic experience for him.
67․The psychologist was asked about the likely effect on the offender if he received a sentence of immediate imprisonment. She said:
Mr Pah Eh presented as a particularly naïve young man who would be extremely susceptible to negative influence in a custodial environment. This would also be contributed to by Mr Pah Eh’s unfounded confidence in his comprehension and use of English.
Given his heightened anxiety about a custodial sentence, and underdeveloped coping strategies, I have some concern that a dormant trauma disorder may become active in custody. With even less access to cultural and familial supports, and opportunities for distraction, it is quite possible that Mr Pah Eh’s emotional memories of the refugee camp will resurface.
68․Although it has not been proved on the balance of probabilities that a dormant trauma disorder would become active, it has been proved on the balance of probability that there is a risk of that occurring. I will take that into account also.
69․Finally, the offender's skills in oral and written English are far from ideal. He was assisted by an interpreter in Court. He will thus feel an increased level of isolation in custody.
Principle of parsimony
70․One of the principles of law relied on by the offender was what was described as the “principle of parsimony”. It was submitted that I was mandated by that principle to impose a sentence that is sufficient to achieve the range of sentencing objectives and no more.
71․The principle of parsimony had a brief moment in the sun in New South Wales courts, commencing with the decision of Adams J in DB v R [2007] NSWCCA 27 (DB v R). Although the other members of the Court did not endorse those observations, the principles were relied on in an application for leave to appeal against sentence in Blundell v R [2008] NSWCCA 63; 70 NSWLR 660 (Blundell). Simpson J, with whom Grove J agreed, examined the providence of the principle and found that the primary authority on which Adams J relied, namely Webb v O’Sullivan [1952] SASR 65, made no reference to the principle of parsimony and was not in the authority for the proposition at all. The Court held in Blundell that the principle of parsimony, at least on the construction of DB v R, as it appears to have been interpreted by Adams J, was not part of sentencing law in New South Wales. Simpson J noted that in Kelly v R [2007] NSWCCA 357 (Kelly v R), Basten JA rejected that construction of Adam J's judgment in DB v R, and Adams J, who was coincidentally a member of the bench in Kelly v R, agreed with Basten JA.
72․In Foster v R [2011] NSWCCA 285, another case where Adams J was a member of the bench, McClellan CJ at CL disagreed with the orders proposed by Adams J, saying at [4]:
The sentence suggested by Adams J has been influenced by his acceptance of the principal of “parsimony” which his Honour discussed in DB v R [2007] NSWCCA 27; 167 A Crim R 393 at 396 [10]. His Honour’s views on this issue were not embraced by the majority in DB and were authoritatively rejected by this court in R v Blundell [2008] NSWCCA 63; 70 NSWLR 660.
73․The principle of parsimony has not been heard from in New South Wales since.
74․On the other hand, the principle has been referred to in courts of the Australian Capital Territory, most authoritatively in Allred v R [2015] ACTCA 21; 10 ACTLR 325 at 339-340, as follows:
Ms Warwick also referred to the “principle of parsimony or minimality”. The formulation of the ground did not suggest that what was alleged was a specific error. In that event, it was, in reality an aspect of the complaint of manifest excess.
The “principle” of parsimony can be traced to a decision of Napier CJ in Webb v O’Sullivan [1952] SASR 65 where His Honour said (at 66):
The courts should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.
In Beniamini v Stormon [2014] ACTSC 2 at [88]-[93], Refshauge J analysed some of the authorities concerning the “principle” and its status in sentencing. His Honour pointed to the considerable difficulties with its application as a principle in the terms described by Napier CJ. His Honour then concluded at [93]:
If, however, the principle is rather a recognition of matters such the basic principles of proportionality, that a sentence should never exceed that what is proportionate to the gravity of the offence (Hoare v The Queen (1989) 167 CLR 348 at 354), and the statutory requirements such as that imprisonment is the sentence of last resort (as in s 10(2) of the Crimes (Sentencing) Act 2005 (ACT)), then there can be no real complaint about such a principle.
75․If that be the true understanding of the principle of parsimony, then all it really does is require the application of principles of law which are well accepted. The principle of parsimony adds nothing to the principles of law which I must apply in determining the appropriate sentence to impose upon the offender.
Remorse of the offender
76․The question as to the extent to which the offender has demonstrated remorse is not an easy one to answer.
77․The reference from Ms Kyaw simply says, “he is remorseful for this mistake”, but does not explain whether the offender is simply remorseful because of the effect his offending has had on him or because of the effect that it had on the complainant.
78․The psychologist asked him what he would say to the complainant if given the opportunity. In response, he said, “I'm sorry for everything, this mess,” but explained that the mess was that he could not go to church and meet people. That does not appear to be true remorse.
79․However, when asked how he thought the complainant might be feeling, he said:
[M]aybe sad about what we done, the mess. Maybe she cry.
80․When asked if he believed there might be an impact on the complainant in the future, the offender said, “yes, it would be different”.
81․Some allowance must be made for the fact that the psychologist interviewed him in the English language, but even so, what the offender said falls short of a complete acceptance of responsibility and a complete understanding of the harm he has caused to the complainant.
Consideration
82․General deterrence is of prime importance when sentencing for offences of this nature. As the facts of this case demonstrate all too clearly, children are vulnerable and they sometimes make the wrong decisions, decisions which will ultimately lead to them being harmed, and it is important that they be protected from people like the offender who use them for the purpose of sexual gratification.
83․It is easy for adults to take advantage of the naiveté of children and, when they do and they come to be sentenced, courts must respond in a very concrete way. The idea is that others who may be tempted to take advantage of the innocence of children for their own purpose will be deterred from doing so.
84․It was conceded on behalf of the offender that a sentence of imprisonment was required, but I was asked to order that the sentence be served by means of an intensive correction order.
85․The sentence I impose must reflect the objective gravity of what the offender did. His behaviour was seriously criminal, even allowing for how close the complainant was to her 16th birthday.
86․The offender repeatedly ignored the complainant's attempts to get him to stop what he was doing, even from the very beginning of the abuse when she would push his hand away and he would persist in attempting to grab her breast.
87․There were many separate acts of sexual touching and sexual intercourse. They were performed on a young girl who was at least reluctant if not unwilling. The consequences for her of having her first kiss and her first sexual experience with the offender can be assumed, even in the absence of a victim impact statement, to be serious. Telling her once they had had sex that it would be less shameful for her to maintain a relationship with him was an act of manipulation, as was convincing her that what they were doing was normal, despite their age and their familial relationship.
88․Despite the reduced moral culpability of the offender for the reasons that I have identified, I am satisfied that nothing less than a sentence of imprisonment, to be immediately served, is required in the circumstances of this case.
Orders
89․For those reasons, the following order is made:
(1)The offender is convicted of the offence of persistent sexual abuse of a child or young person under special care (CAN2023/932) and sentenced to a period of imprisonment of 2 years and 3 months commencing on 10 February 2024 and concluding on 9 May 2026, with a non-parole period of 1 year and 3 months commencing on 10 February 2024 and concluding on 9 May 2025.
| I certify that the preceding eighty-nine [89] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman Associate: Date: |
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