Director of Public Prosecutions v Saiin

[2022] VCC 558

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-02209

DIRECTOR OF PUBLIC PROSECUTIONS

v

THUNYATAT SAIIN

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 April 2022
DATE OF SENTENCE:	27 April 2022
CASE MAY BE CITED AS:	DPP v Saiin
MEDIUM NEUTRAL CITATION:	[2022] VCC 558

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Abduction for a sexual purpose - Sexual assault - Early plea of guilty - First offender - Rideshare (Uber) driver - Unconscious intoxicated victim - Strong prospect of deportation upon release from prison - Reasonable prospects for rehabilitation

Legislation Cited: Crimes Act 1958

Cases Cited: N/A

Sentence: Imprisonment of 5 years and 3 months with a non-parole period of 3 years and 9 months - s6AAA declaration - Imprisonment of 7 years with a non-parole period of 5 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Grant	Office of Public Prosecutions
For the Accused	Ms K. Ballard	Stary Norton Halphen

HIS HONOUR: 

1Thunyatat Saiin, you have pleaded guilty to the following offences -

i)One charge of abduction for a sexual purpose contrary to s 47 of the Crimes Act 1958. The maximum penalty for that offence is 10 years imprisonment; and

ii)One charge of sexual assault contrary to s 40 of the Crimes Act 1958. The maximum penalty for that offence is 10 years imprisonment.

2You have pleaded guilty at committal mention and no witnesses were called for cross-examination.  Furthermore, your plea has facilitated the administration of criminal justice during the COVID-19 pandemic and I also accept it is evidence of some remorse for your offending.  Your plea is a high-value early plea of guilty and I have taken it into account in your favour in mitigation of sentence.

3You have no prior or subsequent convictions and there are no outstanding charges in your case.  You are a first offender. 

4A prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows.

5On 25 August 2019, you were working as an Uber driver, having commenced part-time work for that corporation in September 2018.  You were driving your stepfather's Toyota Yaris sedan.  The victim of your offending, a 20-year-old girl, had been out with friends the previous evening and that morning and had consumed a substantial amount of alcohol and was intoxicated.  At 8:00 AM she booked an Uber to take her home and at 8.19 am you collected her from outside the Clique nightclub in King Street in the CBD. 

6When she got into your vehicle, she immediately passed out or fell asleep.  You drove her to her home and when you were unable to rouse her, you decided to sexually assault her.  You drove your vehicle to a nearby Coles Express and purchased a packet of condoms.  You then drove to a car park near the victim's home.  You got into the rear of the vehicle and lifted up your victim's skirt and opened the crotch area of the tights that she was wearing.  You touched her vagina and after placing a condom on your penis, masturbated yourself. 

7You then fell asleep and when your victim awoke you were asleep next to her in the rear of the car.  You then drove her home and your victim reported the matter to police. 

8On 2 September 2019, you were arrested by police and in an interview with them denied your offending or made no comment to questions put to you. 

9I have received in evidence a victim impact statement of your victim-survivor, detailing the profoundly traumatic effect your offending has had upon her.  Your crimes have seriously harmed her well-being, quality of life and mental health.  She requires ongoing psychological treatment and also medication.  Her education has also been seriously disrupted.

10It is plain from this summary that your offending constitutes particularly serious examples of the crimes you have pleaded guilty to.  You cynically exploited an intoxicated vulnerable young woman for your own sexual gratification.  Your offending was calculated and you expected your victim would have no knowledge of what you had done.  To this day, she is haunted by her lack of knowledge of the extent and nature of your attack upon her. 

11It is the fundamental responsibility of this court to protect the community from predatory sexual offending like this and send a clear message to those entrusted with the safe passage of young persons such as your victim that offending of this nature will result in a significant sentence of imprisonment upon conviction.  You must also be punished for your appalling breach of trust that your victim had placed in you.

12I now turn to your personal circumstances. 

13You were born in August 1983 in Bangkok, Thailand and are now aged 38.  You have been married twice and have a 15-year-old daughter who resides with her mother in Thailand.  You completed your schooling at the age of 12 but returned to study as an adult and completed a business management degree at Sri Puah Thun University in 2009 in Thailand. 

14You arrived in Australia in 2015 on a student visa and studied hospitality.  You are now employed as a chef in a Thai restaurant run by your mother who resides in Australia with her husband.  Your sister also resides here in Melbourne. 

15You are not an Australian citizen, and in all probability you will be deported to Thailand on your release from prison.  I accept that this will increase the hardship of imprisonment upon you.  But you have family in Thailand and significant ties to that country. 

16I have received in evidence a psychological report of Mr Patrick Newton, detailing your background and psychological profile.  You are of average intelligence and do not suffer from a mental illness.  You currently suffer from anxiety related to your legal proceedings and this will abate no doubt on the conclusion of them. 

17Your somewhat limited development in relation to personal relationships indicates that you are a moderate risk of reoffending.  But overall I accept that your prospects for rehabilitation may be described as reasonable. 

18I have also received in evidence a reference prepared by your mother indicating that you are very remorseful for what you have done.  You have been in prison during the COVID-19 pandemic restrictions and I accept that this will increase the hardship of imprisonment upon you by reason of your separation from your family who you are close to.

19I am conscious of the need to avoid double punishment in your case in relation to the charge of sexual assault and while the fact that you had abducted your victim at the time of the sexual assault plainly forms part of the circumstances of that offence, I have not treated that as an aggravating factor in arriving at the appropriate proportionate sentence in respect of Charge 2. 

20In the result, the sentence of the court is as follows -

21On Charge 1, the charge of abduction, you are convicted and sentenced to be imprisoned for 2 years and 6 months. 

22In relation to Charge 2, the charge of sexual assault, you are convicted and sentenced to be imprisoned for 4 years. 

23I direct that Charge 2 is the base sentence and 1 year and 3 months of the sentence on Charge 1 be served cumulatively on the sentence imposed on Charge 2. 

24This makes for a total effective term of imprisonment of 5 years and 3 months.  I direct that you serve 3 years and 9 months before becoming eligible for release on parole.  I declare that you have served 5 days by way of pre-sentence detention not including today. 

25But for your plea of guilty I would have imposed a total effective term of imprisonment of 7 years and fixed a non-parole period of 5 years. 

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