Director of Public Prosecutions v Park

[2019] VCC 372

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02147

DIRECTOR OF PUBLIC PROSECUTIONS

v

JINU PARK

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2019
DATE OF SENTENCE:	27 March 2019
CASE MAY BE CITED AS:	DPP v Park
MEDIUM NEUTRAL CITATION:	[2019] VCC 372

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Burnett	Office of Public Prosecutions
For the Accused	Ms M. O'Brien	James Dowlsey & Associates

HIS HONOUR:

1Jinu Park, you have pleaded guilty to one charge of attempted rape.  That crime carries a maximum penalty of 20 years' imprisonment.  You are now 24 years of age.  You pleaded guilty at the earliest reasonable opportunity and made admissions at the scene of the offending.  You have expressed remorse and indeed in this situation shame over that offending and you must get the benefit of that plea not only for that remorse but also for the utilitarian aspects of it.

2The victim in the matter is a Colombian resident and I have no doubt that the running of a trial in this situation would have been a difficult prospect indeed.

3You have no prior convictions of any description.  Because of the sentences to be imposed upon you, there is a certainty that you will be deported.  There has been some discussion between myself and counsel as to when that is likely to occur or whether I can even take into account when it is likely to occur.

4However, it is of real significance in your situation because whilst you do not have any real difficulty with being deported, it is a circumstance where you will not know what is going to happen for some period of time yet and you will undergo the sentence with that anxiety of not knowing what the future holds for you.

5The circumstances of the offending are that a group of people from South America by the look of it were sharing rooms in an apartment.

6On 19 July 2018 at approximately 9.30 pm, the victim in the matter went to the apartment to meet two other people.  Time was spent together in the lounge room and each of them consumed approximately a third of a bottle of Rum as well as some shots of liquor.  I do not think I need in these circumstances to go through all the circumstances of that or who was there or what they did.

7The ultimate result was that two of the friends of the victim left her there and she was lying on a bed.  She noticed that you had been lying on the bottom bunk bed and thought it was a Korean housemate.  She felt very sick and vomited on multiple occasions in the ensuite bathroom.  She returned to a single bed.  She also vomited on the single bed and the floor and friends went out again while she fell asleep face down on the single bed in her clothing.

8At this stage, as I understand it, she had not met you.

9At approximately 1.30 am, she woke to a feeling of something between her legs.  She realised her jeans were down around her thighs and you were attempting to penetrate her vagina with your penis.  She pulled her pants up and stood up.  She was angry and felt invaded and disgusting and started fighting with you.  She was pulling your hair, kicking and punching you.

10You grabbed her hands and sat her down on the bed and you started to apologise to her.  You told her or attempted to tell her that she had asked you to do it.  She was angry and began yelling at you.  Other members of the household were alerted and, in any event, you were retained or restrained until such time the police arrived.

11You were spoken to by police and essentially in the course of an interview with an interpreter you made full admissions to the fact that you had attempted to sexually penetrate her without her consent and accordingly that gives rise to the charge which you face.

12It is a situation that I am prepared to accept that bearing in mind you have no prior convictions that the offending was opportunistic and was not in any way pre-planned.

13However, it has to be regarded as serious.  Sometimes with what is described as attempted rape are dealt with as indecent assaults.  This was a serious attempt to penetrate this defenceless, drunk and unconscious woman who was in a very vulnerable set of circumstances and the vulnerability of those circumstances was brought out dramatically in the victim impact statement which she has pre-recorded and which was played to the court.

14That victim impact statement shows a very intelligent young woman who is aware of herself emotionally, who has been struggling ever since to deal with this.  To her great credit, she has shown real courage to endeavour to come to terms with what you did to her and it is only to be hoped that she is able to continue that into the future.

15While she suffered very little physical injury, if any, it is quite clear that what you did had a very significant psychological effect upon her and has caused her great distress over an extended period of time.  The offending has to be regarded as serious.  Of course the application certainly of general deterrence and specific deterrence in your situation are somewhat debatable as you are going to be certainly deported.

16There must also be denunciation and an appropriate punishment.

17In all these circumstances, the risk of you reoffending and the prospects of you rehabilitating are not a lot of concern because you will not be in this country when that occurs.  However, I work on the basis that you should be able to rehabilitate yourself.

18You have now been in custody for some 250 days and I have before me a report from Ms Ferrari, a psychologist, who has described your background and I do not think I need to go into too much detail.

19You come from South Korea.  You have come to Australia in around about 22.  You are exponent of the sport of tennis and were coaching in regard to it.  Your visa to come to Australia has expired and had expired for some time prior to this offending.  You had been an illegal resident in the country for about five months.

20You had a very difficult childhood and it is described as being high pressured.  Your mother and father obviously have difficulties with you and indeed the situation now is that you have been estranged from them for some period of time.

21In gaol, you have no visits.  You have not told anybody, including your family, where you are and you are basically sitting it out.  To your credit, you have undergone a number of courses.  You are working as a billet and you are trying to make the most of the custody that you are going to have to endure for some time yet.

22You are learning English and your command of the English language by the end of your sentence hopefully will be considerable.  That may be of assistance of you in the rehabilitation process that follows on from all this.

23You have no psychological difficulties that give rise to the principles in Verdins.  You are not an unintelligent person.  You completed Year 12.

24Your sentence is undergone as I have said in a situation with no visits, no contacts.  I assume there is very few Korean-speaking prisoners and you do it in the understanding that you will ultimately be deported, though you are not going to know when for quite some time yet.

25I will direct that the report of Ms Ferrari remain on the court file.  I do not propose to go through all the detail of it.  This is simply a situation where you, and I accept that you may well have had difficulties in the past with emotional and intimate relationships, have taken advantage of a situation to satisfy your own desires.

26There is only one sentencing option open and that is clearly gaol and that sentence must be one which displays the abhorrence of the court and the community for treating a vulnerable young woman in the way you did.

27Accordingly, on the charge of attempted rape, you are sentenced to be imprisoned for a period of three years.

28I direct you serve a minimum term of two years before becoming eligible for parole and I am well aware of the unlikelihood of that occurring.

29In these circumstances, I direct that 250 days be reckoned as having been served under this sentence.  So as you understand, the benefits of you having admitted to this offending and pleaded guilty at an early stage, I tell you that but for your plea of guilty to be contested at trial, you would have been sentenced to be imprisoned for a period of 4,5 years with a minimum term of three.

30There is no other orders I need to make?

31MS BURNETT:  No, Your Honour.  Thank you, Your Honour.

32HIS HONOUR:  All right.  Do you want to keep him here for a bit or ‑ ‑ ‑

33MS O'BRIEN:  Yes, that would be useful.  Thank you.

34HIS HONOUR:  Yes.  All right.  Normally I tell them to take him but in your situation, it is all right.

35MS O'BRIEN:  Thank you.

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