Director of Public Prosecutions v Sang

[2021] VCC 1344

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01323

DIRECTOR OF PUBLIC PROSECUTIONS

v

LAL SANG

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2021
DATE OF SENTENCE:	10 September 2021
CASE MAY BE CITED AS:	DPP v SANG
MEDIUM NEUTRAL CITATION:	[2021] VCC 1344

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director	Ms C. Duckett	Office of Public Prosecutions
For the Accused	Ms R. Davis	Paul Vale Criminal Law

HIS HONOUR: 

1Lal Sang, you have pleaded guilty to one charge of sexual penetration of a child under the age of 16.  The victim was 14 and a half years old.  You were 18.

2During the evening of 22 January 2018, the victim was walking near the Eastland Shopping Centre when she saw a group of men and women run from a liquor store, carrying alcohol.  She thought she knew some of them and got talking to them, and took up an invitation to join them in a nearby park.  In fact, the group were sleeping rough in that park.  You, Lal Sang, were one of those sleeping rough in the park or under a bridge over the Mullum Mullum Creek.

3When the victim got to where the group was, she commenced drinking shots of bourbon to the point of becoming quite intoxicated.  At one point she went with others to the McDonalds store.  Around this time she could not find her phone, which in fact had been stolen by another person in the group.

4The victim returned to the group in the park and understandably she was, and remained, worried about her phone.  Another man, Yel Pine, came to her and said that he would help her find it.  However, rather than carry through with that offer to help her, that man, Yel Pine, sexually assaulted her when she was a distance from others and in an area of bush and shrubs.

5The victim came back from that sexual assault and told another young woman what had happened to her.  At some later point the police came patrolling this area, which is known to be where young people were sleeping or do sleep rough.  The victim said that to avoid being seen by the police the boys, 'Told everyone to lie down'.  You in fact lay on the victim and took the opportunity to kiss her.

6When the police left you told the victim to follow you to a place with more dense bushes.  You then told her to lie down, and despite her intoxication and protests, you penetrated her vagina with your penis until you ejaculated.

7You then returned to the group first and the victim followed.  Your then girlfriend attacked the victim, accusing her of having sex with you.  A fight broke out and the victim received a split lip.  She left the group and went to the nearby McDonalds store to get ice for her face.  She then went to a friend's house for the night and then to her home the next day.  She ultimately told her parents of what had happened to her, and they took her to the police and an investigation was commenced into your crime and that of the other man, who had earlier sexually assaulted the victim.

8That other man, Yel Pine was someone you knew, as both of you had originally come from Myanmar to Australia, though in different circumstances.  I pause to state that I had imposed sentence on Yel Pine for his crime of sexual penetration of a child under the age of 16.

9To return back to the period just after the crime was committed.  You were spoken to the police over the days after the victim reported what had happened to her.  In your record of interview you admitted having sex with the victim, but gave an indication that you thought she was of an age to consent.  The DNA that was obtained ultimately confirmed this – that is that you had sex with her.

10I want to make it clear that what you did was serious offending.  As I set out in my reasons for the sentence of Mr Pine, and it is applicable to you as well; this was a circumstance of you exploiting the vulnerability of the victim.  She was young and in unfamiliar circumstances.  She was intoxicated and you knew she was.  You and the other offender, Mr Pine, have contributed to the significant adverse impact this night and this sexual offending has had on the victim.

11I heard her victim impact statement read now twice, and she also spoke to me by virtue of the enabling technology that we now have for court hearings in COVID times.  The victim in her victim impact statement said that the crimes have affected her to the extent where she no longer sees herself as a person.  She says:  'I am not living.  I simply survive each day.  No enjoyment in life anymore’.

12She feels overwhelmed; the emotions of pain, frustration and failure.  She struggles with commonplace things that others are simply able to do.  She barely sleeps.  She can no longer concentrate at school and struggles with eating and her body image.  She has been diagnosed with depression, anxiety, and severe post-traumatic stress disorder.  She wonders how she will be able to cope.

13The crime impacted on her relationships with her own family.  She often acts erratically because she is overwhelmed with emotions.  Her friendships she describes poignantly as being ‘self-sabotaged’ because there are long periods of time when she could not leave her bed or did not want to interact with friends or anyone else.

14She struggles to trust men in general.  She said:  ‘This crime is something people in this court are able to move on from.  But I will have these memories and feelings stuck with me for the rest of my life’.

15In her victim impact statement she speaks directly to you and the other offender in saying:  ‘This crime has impacted on so many aspects of my life, and now because of you I have to live with this’.

16By taking into account, of course, the statutory requirement, which is proper, and that is I take into account the impact upon her of what you did, although it is complicated by reason of the two separate offenders.

17The victim emphasised as well that others will move on, but she lives with what occurred to her as a daily thing.  I endeavour to reassure her that while the courts sadly do deal with many sexual crimes against children, the courts endeavour not to become somehow immune to the deep suffering of victims, which is often long lasting.  The courts have learned from listening to victim impact statements like hers, just what ongoing serious adverse impacts are caused.

18In assessing the gravity of what you did and your moral culpability, I emphasise that the law you broke is designed to protect the young from engaging in sexual activity before they are old enough to make informed decisions.  The most serious examples of this offence, which sadly are seen regularly in this court, involve planned or predatory behaviour of much older offenders abusing a relationship to regularly sexually exploit a child.

19At the other end of the spectrum, as explained in the Court of Appeal Decision in Clarkson, there are genuine relationships between teenagers where one is too young to consent.  Yours was an example of shameful exploitation of the circumstances that arose.  It was not planned or ongoing, but it certainly was not two young people in a relationship.

20After you gave your record of interview in late January 2018, you were released on summons.  Ultimately you decided to seek employment at a new meat works that had opened in Naracoorte, South Australia.  You had some experience of this kind of work from the work your mother had done over years in Melbourne.

21You went to Naracoorte some time before August 2018.  Unfortunately, on 1 September 2018 you were driving at high speed while intoxicated, and you rolled your car.  You had two passengers on board, friends of yours.  The rear passenger, I understand a close friend, was ejected from the car and died.  The other passenger suffered injuries.  You were fortunately unscathed.

22With enviable efficiency, that matter was finalised in the District Court of South Australia a month or so later in November 2018.  I have read the concise reasons for sentence of Judge Brebner.  He imposed a sentence of two years and six months with a non-parole period of two years.

23You served that sentence in South Australian correction facilities with the final few days in Victoria.  You were eligible for parole on 31 August 2020.  Thereafter you have been held on remand in Victoria, now for a period of 380 days, all of which are declarable as pre-sentence detention with respect to the sentence that I impose.

24What will occur upon the expiration of the sentence I impose is a matter that is relevant to aspects of your sentencing.  This arises from your immigration status and is explained by touching on important matters in your personal history, and I turn to that.

25You were born in Myanmar on 5 October 1999.  It was difficult for your family, and your mother and older brother were able to come to Australia as refugees in 2009.  You, your father, and sister remained in Myanmar.  Your father's work as a driver meant that effectively, you were left to fend for yourself with your sister.  You were both very young.  These were circumstances of particular deprivation.

26When you were about 15, you were able to move to Australia with your father and sister.  You attended English language school and then Ringwood Secondary College.  You struggled with education and left at 18, having undertaken a VCAL course.  You gained some work as a gardener and other labouring jobs before seeking out the meat works job in Naracoorte.

27You have the ongoing support of your family as evidenced in a letter written by your brother and tendered on the plea.  Importantly he says that you have, while you have been in custody, that is the whole time you have been in custody, you have expressed remorse, reflected on your life and displayed signs of wanting to rehabilitate so as to be able to make a worthwhile contribution.

28This is a difficult or problematic aspect of this, my sentencing task, because I have no doubt that having offended at age 18 here and in South Australia, and having undergone now over three years in custody in adult prisons, you are someone who is now well ready and able to rehabilitate and, most importantly, facilitating your rehabilitation as a young offender remains as the paramount sentencing purpose here, as outlined in the important cases of Azzopardi,[1] and Mills.[2]

[1]Azzopardi v The Queen [2011] VSCA 372.

[2]R v Mills [1998] 4 VR 235.

29However, your immigration status is such that you have had your visa cancelled, and you will, as I understand it, move from prison to immigration detention with the certain outcome of deportation.  This is in circumstances where all your family are well settled in Australia, making solid contributions in the workforce and in the broader community.

30Having left Myanmar at age 15 and in war-torn circumstances, which now prevail, returning to that country is a daunting if not frightening prospect which I take into account, weighs heavily on you.  Just yesterday in the Court of Appeal in the matter of Matamata v The Queen,[3] the court has again emphasised the mitigatory value of recognising that deportation weighs heavily on someone awaiting and undergoing sentence.  That is your situation, and I take that matter well into consideration with respect to the time you have had spent on remand.

[3] [2021] VSCA 253.

31There are other matters in mitigation.  Your plea of guilty in these pandemic times must be accorded greater weight.  My sentence must reveal that a perceptibly greater beneficiary discount has been applied.  I also, with the suspension of jury trials, give weight to your plea in the circumstances where in your record of interview you indicated that you had a belief that the victim was older than she was.  Thus, you have relieved the prosecution of a significant hurdle in respect to this matter.

32Further, your time in prison in Victorian facilities on remand has been more onerous as a consequence of your restrictions that have had to be imposed on prisoners due to the risks of the pandemic.  In simple terms, jail is not as it once was.  It is much harder.  I also take into account that you have spent in total now over three years in custody.  That is, the sentence imposed in South Australia for the driving offences, and then the period on remand.

33You are someone who has been through a good deal in your short life.  You have had no psychological counselling to assist you with your deprived childhood experiences; the death of your friend as a consequence of your driving; and your current predicament facing deportation and separation from your family.  These are all matters that for a young man elicits sympathy which, in turn, ought be reflected in a merciful sentence.

34However, in many ways the die has already been cast.  You have done over a year in custody, as well as the long sentence prior to that for your South Australian crimes. Given that you will be deported it is not practical to endeavour to further facilitate your rehabilitation by a sentence that combines your period on remand with a community corrections order, or indeed a sentence that allows for a potential for a period on remand.

35Both your counsel and the prosecution submitted you have served a period of incarceration that is just and appropriate for the crime you committed.  Your counsel submitted that not only should no further jail be imposed, but so too no other period of time doing a corrections order or indeed, the potential for parole.

36It is unusual to impose a straight sentence on a person where ordinarily rehabilitation orders are to the fore.  However, as the High Court has made clear, individualised sentencing requires sentencing for the unique circumstances of an offender, as well as the particular circumstances of the offence.  Here, that points squarely to a sentence of imprisonment of a period that you have served, but no more.

37The crime has had a serious impact on the victim, and ordinarily jail or a Youth Justice Detention would follow offending of this kind.  Indeed, alteration to the sentencing law for this offence made shortly after your crime was committed make this a much clearer requirement for cases of this type.  However, I consider that a straight sentence of 380 days, the period you have served on remand, is the only appropriate sentence with the declaration that I will make pursuant to section 18, that you have served every day of the sentence of 380 days.

38Under the sentencing law of Victoria, you would be immediately eligible to be released back to your family, who you have been separated from since 1 September 2018.  Whether that occurs is for others who exercise powers under the federal immigration laws.  However, as one further consequence of the offence that you committed, you must be registered on the Sex Offenders Register for 15 years.

39You are eligible under that Act,[4] to make an application to be exempt from that registration, however that must await an application to this court by your lawyers on your behalf. It will be necessary to explain the circumstances of your Sex Offenders Register and get your consent, but you understand what it is that is required.

[4]Sex Offenders Registration Act 2004 (Vic).

40Just doing the best I can, I impose for the crime of sexual penetration of a child under the age of 16 the sentence of imprisonment of 380 days.  I make a declaration pursuant to the Sentencing Act,[5] that you have served 380 days as pre-sentence detention.  I will ensure this declaration is into the records of the court.  That will make it clear to the corrections authorities that you have served each and every day of the sentence that I have just imposed.

[5]Sentencing Act 1991 (Vic).

41Had you pleaded not guilty to this offence, I would have imposed a longer term, and fixed a non-parole period of two years and six months, with a non-parole period of 18 months.

42Are there any other orders required?

43MS DUCKETT:  There are no further orders required in this matter, Your Honour.

44HIS HONOUR:  Thank you very much.  All right, is there anything further from your perspective, Ms Davis?

45MS DAVIS:  No, thank you, Your Honour.

46HIS HONOUR:  Thank you.  So, Mr Sang, what would ordinarily occur if you were in the court room with me; I'd go through a process that's hard to follow, but it goes like this.

47I would sign a document to say that I'd given you a document, and you would sign a document to say that you had got that document.  That can't occur and the real issue here is what the content of the document you give - it sets out the requirements, the responsibilities that you have to register under the Act, and it sets out what the consequences are if you don't do that and continue to abide by it.

48The documents will be forwarded to your lawyers as soon as we're able to do so.  Do you understand that I'm giving you those documents and that you will get them from your lawyers?  We need you to just indicate either by signal or saying something, Mr Sang, saying that you understand that you will get documents relating to the Sex Offenders Register.

49OFFENDER:  Yes, I understand.

50HIS HONOUR:  Thank you very much, all right.  Well, we'll forward those things to your client via that process.  I'll sign that he consented in court or gave some indication he understood it all.  That then will be clear enough on the transcript, and we'll await the further developments with an exemption.  What happens under the federal immigration law, as I've said, is for others.  But the prison authorities have no reason to keep him beyond today.

51MS DAVIS:  Thank you, Your Honour.  I have explained the, SORA requirements before, but I will - if the link could just stay for five minutes, I'll just re-explain.

52HIS HONOUR:  Yes, of course.  Yes, not at all.  You remain online.  I thank counsel for resolving this matter and for assistance with the plea, and you particularly, Ms Duckett, for explaining things to the complainant as you have done and will do again.  Thank you.

53MS DUCKETT:  I will do that again.  Thank you, Your Honour.

54HIS HONOUR:  I'll head away and you work it out with my tipstaff, Ms McKellar, just how to keep talking to your client.  Thank you.

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