Director of Public Prosecutions v Pang

[2023] VCC 270

pu

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-00300

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW PANG

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2023
DATE OF SENTENCE:	28 February 2023
CASE MAY BE CITED AS:	DPP v Pang
MEDIUM NEUTRAL CITATION:	[2023] VCC 270

REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence

Catchwords:              Sexual penetration of a child under the age of 16 – Rolled-up charge involving a single episode of two successive acts of penetration – 15-year-old victim – 26-year-old offender – Accused and victim not known to each other – No pre-meditation or grooming conduct involved –– Delay of five years between offending and sentence – Positive prospects of rehabilitation – No subsequent offending – No relevant prior matters

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991; Confiscation Act 1997

Cases Cited:Worboyes v The Queen (2021) 96 MVR 344; DPP v Dalgleish (2017) 262 CLR 428

Sentence:                  2 years and 6 months’ imprisonment with a non-parole period of 1 year and 4 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Brown (Plea) with Ms H. Baxter (Plea) Ms A. Lee (Sentence)	Office of Public Prosecution
For the Accused	Ms V. Drago (Plea) Ms I. Johnson (Sentence)	McNally & Gleeson Lawyers

HIS HONOUR:

Introduction

1Matthew Pang, you have pleaded guilty on indictment to one rolled-up charge of sexual penetration of a child under the age of 16, contrary to s 49B of the Crimes Act 1958. This offence carries a maximum penalty of 15 years’ imprisonment.

2This is an offence to which the standard sentencing regime applies. The standard sentence is 6 years’ imprisonment.

3You sought a sentence indication at a hearing on 2 December 2022. On 5 December 2022, I indicated that I would impose a head sentence of 2 years and 6 months’ imprisonment with a non-parole period of 16 months if you were to plead guilty. You were arraigned and pleaded guilty on 6 December 2022.

4An agreed prosecution summary of your offending dated 6 December 2022 was tendered in Court.[1]

[1]Exhibit A.

Circumstances of the offending

5At the time of the offending, you were 26 years old and the victim, Isla Sang,[2] was 15. You were not known to each other, but the victim was in the same friendship group as your brother-in-law.

[2]        A pseudonym.

6On 3 March 2018, your brother-in-law held a party at his home. You, your partner, and young daughter were in attendance. Isla arrived at the party between 9 and 10 pm. There were about 15 people at the party.

7At approximately midnight, Isla became emotional about her ex-boyfriend. She had consumed a beer and about 10 shots of alcohol by this stage. You were comforting her and said, “Fuck Jason, don’t worry about him”, referring to her ex-boyfriend. A short while later, she became unwell due to her intoxicated state and went to the toilet to vomit.

8Isla had arranged to stay the night at your brother-in-law’s home. Once all the guests left, she remained downstairs with you, your partner, brother-in-law and his girlfriend. She remained feeling unwell due to the alcohol she had consumed and was resting her head on the table. She went to the toilet before going upstairs to bed.

9She entered the bedroom and saw your partner and daughter lying on the bed. She joined them on the bed and cuddled your child. You entered the bedroom. Your partner said to you, “Babe, it’s ok. You can sleep in here. I’ll go to the other room and sleep with my mum”. Your partner left the room leaving you and Isla lying in bed along with your daughter.

10You then started rubbing Isla’s hand before she turned so that her back was facing you. You began touching her torso, waist and buttocks before pulling her pants down and inserting your finger into her vagina. Isla was scared, unable to think and went ‘blank’. You then inserted your penis into her vagina, moving it in and out until you ejaculated (Rolled-up Charge 1).

11Following this incident, Isla left the house. She spent the night at her friend’s house and told her what had happened. Isla told her friend that she felt powerless and unsure of what to do in the moment. The next day, 4 March 2018, she told another friend. She returned to your brother-in-law’s house to collect her clothes and shoes.

12That same evening, Isla reported the matter to the Sunshine Police Station. She completed a VARE[3] on 6 March 2018. Her clothing was seized and analysed. Semen was detected on the inside of the crotch area of the underwear. The sperm fraction was analysed revealing a mixed DNA profile from two contributors. Isla was assumed to be one. You, Mr Pang, were not excluded from being the other contributor, with it being 100 billion times more likely that you were a contributor rather than somebody else chosen at random from the Australian Caucasian population.

[3]Visual and Audio Recording of Evidence.

13On 12 March 2018, you were arrested. You exercised your right to remain silent.

Chronology

14Despite being arrested on 12 March 2018, the police did not lay charges until 10 December 2019. No explanation for this delay was given other than you were not responsible. You appeared before the Magistrates’ Court for a filing hearing on 10 January 2020. At a committal mention hearing on 21 February 2020, you indicated pleas of not guilty and were committed to this court. Due to outstanding disclosure, it was not possible to proceed expeditiously with pre-trial cross-examination. The delay in charging you meant that the DNA sample you had provided with your consent on 12 March 2018, had been destroyed. A further sample was requested, which you provided by consent on 12 July 2020. The DNA evidence was received on 21 August 2020. You did make an offer to resolve, but the offer did not include any offence involving a penetrative act. The prosecution, in rejecting the plea offer, made a counter-offer on 22 October 2020, which you rejected. There was further delay in proceeding with the case due to lockdowns as a result of the pandemic. The ground rules hearing and special hearing eventually proceeded on 4 and 5 November 2021 respectively. There was some delay due to funding issues you experienced. The case had been listed for mention and ground rules hearing on a number of occasions, which led to your funds being exhausted. A trial was listed on 5 July 2022. On the morning of the trial, the prosecution, for the first time, clarified their case in relation to which underwear was seized and analysed. It was confirmed that the underwear seized and analysed was the one the victim had changed into after the offending. This clarification necessitated pre-trial argument and the trial could not proceed. Having heard argument as to the admissibility of the DNA evidence found on the victim’s underwear in the crotch region, I ruled that the evidence was relevant and admissible. Your trial was relisted and due to commence on 1 December 2022. However, it resolved following a sentence indication hearing on 2 December 2022.

15This is a brief chronology. I have had regard to the chronology tendered by the prosecution as part of the opening and the chronology prepared on your behalf.[4] The history of this matter makes plain that there has been a delay of nearly five years in finalising your matter. It is not suggested that you are responsible for this delay. The delay, as the prosecution concedes, is a highly relevant matter that the Court should take into account in the sentencing synthesis. I will return to this later in my reasons.

[4]Exhibit 2.

Personal circumstances

16Your counsel, Ms Drago, set out your background in her written submissions.[5]

[5]Exhibit 1.

17You were born in Hong Kong and moved to Australia with your mother at the age of one. Your father remained overseas and has been absent from your life.

18Your mother re-partnered in Australia. You have a younger sibling from that relationship and an older sibling from your biological father's previous relationship. You enjoy a very close relationship with your mother and siblings.

19You and your mother were subjected to family violence at the hands of your step-father. Your education was disrupted due to a number of family re-locations. You attended three different primary schools and three high schools. You successfully completed Year 12 in 2008. You commenced  tertiary studies in advertising and marketing, and civil engineering, but ultimately determined it was not for you.

20You began working while in high school and have maintained steady employment since. You worked as a dealer at a casino for some years and have held employment in warehousing for different retail operators. In 2017, you commenced work at a factory packaging seeds but then took some 12 months off in 2020 to home-school your daughter during the COVID-19 pandemic.

21Prior to your recent remand in custody, you held employment in warehouse work for a beer-producing company. You have been the primary source of income for your family. Your partner is currently not employed. I was told by your counsel that it was your intention to place your family in the best financial position before you commenced your inevitable term of imprisonment.

22You have had two meaningful relationships since the age of 15. Your first relationship lasted for approximately four years. During this period, you resided with your girlfriend as a result of problems at home with your step-father.

23At the age of 22, you met your current partner. Together you have a daughter who was born in 2014. Your partner also has a child from a previous relationship. You have played an instrumental role in her upbringing, treating her with the same love and affection as your biological daughter.  Additionally, you have been actively involved in assisting in the care of your partner’s nieces and nephews.

24You have no issues with drugs or alcohol but have intermittently grappled with anxiety and depressive symptoms. These mental health issues have been most evident during the progression of these proceedings. I have been provided with a letter from Dr Roushdy.[6] He confirms that you have a history of anxiety and depression since 2020 and have been referred for counselling. Dr Roushdy saw you on 29 November 2022. You presented with symptoms of anxiety and associated stress, insomnia and poor appetite. You were prescribed medication that you were advised to take over the short term. You are not taking any medication at present.

[6]Exhibit 6.

Impact upon the victim

25You offended against a 15-year-old girl. There is no victim impact statement in this matter. However, the absolute prohibition on sexual activity with a child is founded on a presumption of harm. There is a legal presumption that premature sexual activity causes long term and serious physical and psychological harm to children.

Objective gravity and sentencing purposes

26The maximum penalty of 15 years and the standard sentence of 6 years, makes it plain how seriously the offence of sexual penetration of a child under 16 is viewed by Parliament.

27The offence you have pleaded guilty to is a rolled-up charge encompassing two acts of penetration. The victim was 15 years old and vulnerable due to her state of intoxication. You were much older, aged 26, and a father of two daughters. This is not a case where the age difference can be described as minimal. The offending involved you ejaculating and no protection was used. This placed the victim at risk of both pregnancy and contracting sexually transmitted diseases.

28I accept that the offending did not involve any pre-meditation. You entered the bedroom where your partner and daughter were sleeping, not knowing that the victim was in the same bed. You were intoxicated at the time. This may explain your out of character conduct, but provides no excuse for your offending. Your partner left the bedroom allowing you to sleep there with the victim and your daughter. I accept that the offending was isolated and limited to a brief single episode involving two penetrative acts in quick succession. The offending did not involve any grooming conduct or breach of trust. No violence over and beyond that inherent in the offending was used.

29Whilst I am able to somewhat moderate general deterrence on account of the lengthy delay, it clearly remains an important sentencing purpose and must be given prominence. The sentence I impose must seek to deter others from committing sexual offending against children. The sentence must justly punish you for this serious offending and I must reflect the community’s abhorrence by denouncing your offending. The passage of time and your proven rehabilitation means that regard to specific deterrence, whilst not distinguished, can be slight.

30You were a youthful offender at the time of the offending and are still only 31. In balancing the sentencing objectives, I am required to also take into account your rehabilitation. It is clear, as a result of the lengthy delay, you have demonstrated that this offending was isolated and have maintained positive progress. I regard your prospects of rehabilitation as positive.

Matters in mitigation

31Ms Drago relied on a number of matters in mitigation. Mr Brown, on behalf of the prosecution, took no issue with the matters raised.

32I accept that this offending conduct was out of character. It occurred some five years ago when you were 26 years old. You were a relatively youthful offender. Other than a matter of dishonesty recorded against you some nine years ago in 2014, you have no other prior convictions. There has been no subsequent offending, and there are no pending matters.

33You are entitled to credit for your plea of guilty. I note that while you did make a relatively early offer to resolve, the resolution did not involve a plea to a penetrative act. Your plea of guilty cannot be described as an early one, however, I accept that the plea you have ultimately entered reflects a change in the prosecution case, both as to the charge and the underlying agreed facts of the offending. By your plea of guilty, you have facilitated the course of justice and taken responsibility for your actions. You have saved the community the time and expense of a trial. Whilst the victim was cross-examined at a special hearing, the remaining witnesses have not been required to attend court and give evidence in a trial.

34Your plea of guilty attracts a greater utilitarian benefit, as it has been entered when the courts are facing significant delays in relation to criminal trials. The courts must encourage those who are guilty to so plead and such encouragement must come from an ‘actual and palpable’ amelioration of sentence.[7]

[7]        Worboyes v The Queen (2021) 96 MVR 344.

35I also accept that your plea of guilty demonstrates some remorse. I have had regard to all the references tendered on the plea.[8] You have expressed your remorse to members of your family in respect of your offending conduct.

[8]Exhibits 2 – 6.

36As I alluded to earlier, a significant matter relied upon by Ms Drago is the delay from the date of the offending and now. The delay is relevant when it comes to assessing your rehabilitation. It is also relevant in that you have endured additional punishment. You were a youthful offender, aged 26 at the time of the offending. Nearly five years have elapsed and you are now 31 years old. During the extended delay, you have not been in any further trouble. There are no subsequent convictions or any matters pending. Not only have you continued to live a law-abiding life, but you have also put your family front and centre, working hard to support them financially and pay the mortgage on the family home.  During the height of the pandemic, you took time off work in 2020 to assist your daughter with her home-schooling. You enjoy a stable and supportive relationship with your partner and your extended family. All the references from family and friends speak highly of you. In short, you not only have positive prospects of rehabilitation, but have demonstrated actual rehabilitation and shown that this offending was out of character.

37As I stated earlier, it took nearly two years from the date of offending to lay charges. The subsequent delay was principally occasioned by the lockdown as a result of COVID-19. You are not to blame for the delay.[9] Your life has been on hold and you have endured anxiety and stress associated with the uncertainty of the ultimate outcome. I take into account the additional punishment suffered by you because of the delay.

[9]There was some delay occasioned due to funding issues.

38I further take into account that, following this offending, the Department of Health and Human Services became involved. From 2019 until now, you have not been able to reside with your partner and children. This has caused strain on your relationship. You have been residing with your mother but have maintained regular supervised contact with your children.

Standard sentencing

39Sentencing requires taking into account a multitude of factors. The standard sentence is one such factor and no more. The sentence specified as the standard sentence is, ‘the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness’.[10] 

[10]Sentencing Act 1991 s5A(1)(b).

40The standard sentencing regime does not interfere with the instinctive synthesis approach the court must carry out, which involves distilling all relevant factors to arrive at the appropriate sentence.

41The court must only have regard to sentences imposed in cases where the standard sentence regime applied.[11] Current sentencing practices are not determinative; they are no more or less important than any of the other factors which the court is required to consider.[12] Each case ultimately turns on its own particular facts and circumstances.        

[11]Sentencing Act 1991 s5B(2)(b). The court is not, however, precluded from considering principles established in past cases.

[12]DPP v Dalgleish (2017) 262 CLR 428.

42The sentence I will be imposing is lower than the standard sentence having taken into account the objective gravity of the offending as articulated earlier in these reasons, your personal circumstances, and all the matters in mitigation, including the delay.

Sentencing

43At the sentencing indication hearing, your counsel, Ms Drago, urged that a term of imprisonment in combination with a Community Correction Order was an appropriate disposition in the circumstances of this case. In my judgement, such a disposition would not deal adequately with the gravity of the offending and the important sentencing purposes of general deterrence, just punishment and denunciation. Mr Brown’s submission, that a term of imprisonment involving a non-parole period as being the only outcome that would do justice in the circumstances of this case, is plainly correct.

44At the plea hearing, Ms Drago urged me to reconsider the sentence and, in particular, the non-parole period. She submitted that a lower non-parole period than the one indicated at the sentence indication hearing was appropriate in this case where there is proven rehabilitation over an extended period.

45Having taken into consideration all relevant sentencing factors and principles, the sentence that I indicated will be the sentence I impose.

46On Charge 1, sexual penetration of a child under 16, you are convicted and sentenced to 2 years and 6 months’ imprisonment.

47In the circumstances of this case, having had regard to your positive prospects of rehabilitation as demonstrated over a period of some five years, and the reduced importance of community protection and specific deterrence, I consider that it is in the interests of justice to fix a non-parole period that is less than that required by s 11A(4)(c) of the Sentencing Act 1991. I fix a non-parole period of 1 year and 4 months.

Pre-sentence detention

48Pursuant to s 18 of the Sentencing Act 1991, the period of 19 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s record.

Section 6AAA declaration

49Pursuant to s 6AAA of the Sentencing Act1991, I indicate that had you pleaded not guilty and been convicted of Charge 1, you would have been sentenced to a term of 3 years and 6 months’ imprisonment with a non-parole period of 2 years.

Sex Offender Registration

50Pursuant to the relevant provisions of the Sex Offenders Registration Act 2004, registration is mandatory and the reporting period is 15 years. Upon your release from prison, you must report your personal details to Victoria Police and continue to comply with the reporting obligations. You will be sent an acknowledgement form for signing in due course and will be provided with a document setting out your reporting obligations upon your release and the consequences of any breach. It is an offence punishable by a term of imprisonment to fail, without reasonable excuse, to comply with your reporting obligations.

Disposal order

51Pursuant to s 78(1) of the Confiscation Act 1997, I grant the forfeiture and the disposal order in respect of the property listed in the order.