Director of Public Prosecutions v Sao

[2024] VCC 1295

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01831

DIRECTOR OF PUBLIC PROSECUTIONS

v

SOPHOAN SAO

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JUDGE:	HER HONOUR JUDGE HARPER
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2024
DATE OF SENTENCE:	21 August 2024
CASE MAY BE CITED AS:	DPP v SAO
MEDIUM NEUTRAL CITATION:	[2024] VCC 1295

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Rape

Legislation Cited:      Sentencing Act 1991

Cases Cited:

Sentence:                  5 years 10 months NPP 3 years 9 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms M. Sargent	Ms. A. Hogan, Solicitor for Public Prosecutions
For the Accused	Mr C. Grant	Dribbin & Brown Criminal Lawyers

HER HONOUR:

1Sophoan Sao, you have pleaded guilty to a single charge of rape.  The maximum penalty for rape is 25 years imprisonment. 

Circumstances of the offending

2The circumstances of your offending were outlined in the Summary of Prosecution Opening for Plea dated 1 July 2024.  I will summarise those facts here.

3At the time of offending, you and your victim, Ms Sarah McKenzie,[1] had worked for the same company, but were not close.

[1] A pseudonym.

4On 19 December 2020, you and your victim attended a Christmas drinks function. The night started at a brewery.

5Witnesses observed you talking to Ms McKenzie throughout the night including you telling her that you liked her and discussing marriage and courtship.

6Although the accounts differ amongst colleagues, it was observed that
Ms McKenzie was more intoxicated than you throughout the night.   It is not disputed that you were drinking that night.

7Once the brewery closed, a group of your colleagues including yourself and
Ms McKenzie went to a karaoke bar where further drinks were consumed.

8Ms Mckenize was observed to be heavily intoxicated at this point, as she was slurring her speech and had her eyes closed.  You continued to sit and speak with her at the bar.

9Witnesses saw that you were being touchy and close with Ms McKenize despite her becoming more intoxicated as the night progressed.

10Ms McKenzie at some point in the night decided to go to the bathroom.  You followed her and asked a colleague to go and check on her.  She decided to get Ms McKenzie an Uber to go home.

11You got into the Uber with Ms McKenzie and told others that you would ensure she made it home.  Some witnesses expressed concern at this, but you assured them you would take her home then to go to your own home to play cards.

12Ms McKenzie does not exactly recall what happened in the bathroom, but her next memory is being in the back of a car and hearing your voice.

13The colleague who booked the Uber saw that it had arrived at Ms McKenzie’s house but had stayed at the address for about five minutes. 

14After arriving at Ms McKenzie’s home, you led her inside and to her bedroom.  She told you ‘I’m alright from here’ when at her bedroom however you replied 'Nah, I’ll put you to bed so you can relax.”

15As she lay on top of her bed sheet, you said you were going to remove her pants so she could sleep better.  You said her pants were too tight.

16The next memory Ms McKenzie has is being naked on her bed and you asking the last time she had sex.  After this she remembers you having your penis inside her vagina.

17She is unsure as to how long you penetrated her for, but she recalls feeling it for a second before she passed out again.  Ms McKenzie was extremely intoxicated when you penetrated her and was in and out of consciousness, clearly unable to consent to sexual contact.

18The next day Ms McKenzie woke up in the morning alone in bed wearing her underwear and the top she wore the night prior.

19When she got out of bed, she felt pain in her vagina and that it was sore and swollen.  She also observed bruises inside her thighs when she had a shower, which she did not have the night prior.

20Text messages were exchanged between Ms McKenzie and some of the witnesses from the night before.  She told them that she had sex with you and did not consent as she was heavily intoxicated.

21She also texted you, stating 'Hey mate you fucked me last night', to which you responded 'Farked I was farked.  Sorry' … 'I am so sorry.  I farked up [sic]'.

22Ms McKenzie reported the incident to her employer before making a report to police.  She was subject to a forensic examination which revealed bruises with features suggestive of fingertip bruising. 

23You were interviewed by police on 7 January 2021.  You told police that you:

(a)   recalled drinking at the brewery, but could not recall any conversation with the complainant there;

(b)   that you went to the karaoke bar, but could not remember anything after that.  You could not recall any conversation with the complainant there; 

(c)   On Sunday morning you could not remember where you were.  You think you caught an Uber to your partner’s place; 

(d)   You had alcohol poisoning and didn’t go to work on Monday;

(e)   The complainant texted you, you thought you said you slept with her, you were sorry and that you were drunk and could not believe it. 

Offence gravity

24Rape is an inherently violent offence, deeply personal in its nature.  You were previously acquainted with your victim.  That the offence took place in her own home, in her own bed, is aggravating and demonstrates the significant breach of trust evident in your actions.  You did not wear a condom, exposing her to the risk of pregnancy and/or disease.

25I consider that your offending falls somewhere just under the mid-range of seriousness of offences of this type. 

Plea of guilty and remorse

26Your plea of guilty was entered at the door of the court, on day one of your trial, and so cannot be considered to have been an early plea.  You also ran a contested committal, as was your right.

27Nevertheless, there is utilitarian benefit to your plea.  You have saved the court and the community the time and expense of running a trial and you have spared the witnesses, particularly your victim, the ordeal of giving evidence before a jury.

28In those circumstances, you have facilitated the administration of justice, and you are entitled to a benefit for that. 

29By your plea of guilty, you have also demonstrated an acceptance of responsibility for your offending and a level of remorse. 

30Carla Lechner, whose report I shall return to, states that you now concede that your victim was not in a position to provide consent to having sexual contact.  You 'understand that the experience would have been confusing and traumatizing’ for the victim.  [You] stated that [you] deeply regret [your] actions, not only on account of the impact on the victim, but also on [your] family and [your] reputation'.

31Ms Lechner reports that you 'expressed shame for [your] offending and appropriate empathy for the victim'.

Victim impact statement

32Your victim provided the court with an eloquent and powerful Victim Impact Statement.  I have taken that statement into account, but will not quote directly from it as she did not wish to have it read aloud in court.

33Your offending has clearly had a significant impact on her, and she no longer feels safe in her own home.  She suffers from anxiety and flashbacks and was unable to work for a period of time.  All of these effects are the direct result of your offending against her.  The consequences are far reaching and ongoing. 

Personal circumstances

34I turn now to your personal circumstances. 

35You are 39 years of age, having been born in Melbourne in March 1985.  Your parents are from Cambodia and you are the second of three children.

36You were raised in Melbourne until the age of five or six years when your family moved to Queensland for a period of time.  English was your second language and you did not consider that you had mastered it until about Grade 6 when you made a number of friends. 

37You excelled at sport and while you completed Year 12, you did not pass.

38Your parents have always worked hard to support the family and you have adopted this approach in your own life.  You have a solid work history, across a number of fields, from the time you left school until your remand.

39You have a long-term de facto partner, Jenny Pham, and together you have three sons, now aged 16, 10 and 8. 

40Your older brother died of liver cancer in 2009.  You found this a very distressing period in your life and experienced feelings of depression in the period following.

41You separated from your partner for a period after you were charged with these offences, however, your relationship has resumed, and your partner remains supportive of you.  You will return to live with her and your children upon your ultimate release from custody.

42Your partner wrote a character reference for you.  I accept its contents.  While I received three other character references and accept that their authors believe you to be of good character, it is not apparent that they know why you are before the court.   

43You were assessed by Ms Carla Lechner in July 2024. 

44You have in the past consumed alcohol to excess and 'linked [your] heavy drinking with adverse experiences as a means of blocking out associated distress'.  You are 'generally able to engage in reflective and consequential thinking although [your] ability to do so when intoxicated is severely undermined'.

45You told Ms Lechner that your sexual relationship with your partner had diminished prior to the offending.  You also report abstaining from alcohol since your offending.   She found you to be at a low risk of reoffending, relative to other male sex offenders. 

46I accept your time in custody has not been easy with the death of a close friend in the unit to which you are remanded. 

Sentencing factors and consideration

47Mr Sao, this was disgraceful offending.  You isolated your victim from others, took her to her own home in an Uber and raped her in her own bed after she told you to leave.  You breached her trust.  You physically violated her.  It is shameful behaviour and it is not made any less serious by you having consumed alcohol.

48General deterrence must the primary consideration in the sentencing exercise.  Other members of the community need to know that should they engage in conduct such as you did, a stern sentence of imprisonment will follow.

49I must also make it clear to you that the court and the community will not tolerate this sort of behaviour.  I do accept that the absence of prior and subsequent offending moderates the need for specific deterrence, as they do community protection, but this consideration is not completely negated.  You simply cannot treat women in this way. 

50I consider your prospects of rehabilitation to be good, should you remain abstinent from alcohol.  Your offending does seem to be out of character and your family, your employment history and your available accommodation on release are all protective factors in your rehabilitation.

51Your counsel, Mr Grant, relied on delay.  I accept there was a period in 2023 when your matter did not progress, the fault of neither you nor the prosecution.  While the rest of the delay is inevitable in the trial process, I accept that you have had this matter hanging over you for some time.

52I also take into account that the delay has allowed you to demonstrate your efforts at rehabilitation and go for a sustained period without reoffending.  

53While your personal circumstances do not reach ‘hardship’ in the sense contemplated in Markovich v R (2010) 30 VR 589, I take into account the impact of your incarceration on your wife and children.  This is not materially any different to the impact on any other prisoner’s wife and children and you must appreciate that their current predicament is a direct consequence of your behaviour. 

54Rape is a Category 1 offence, meaning I must impose a custodial order pursuant to 5(2G) of the Sentencing Act 1991, unless a special reason applies.  There is no suggestion that such an exception applies here.   

55Rape is also a standard sentence offence, the standard sentence being 10 years.  The standard sentence for an offence is a sentence that taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle range of seriousness.  I must take the standard sentence into account as one of the factors relevant to sentencing. 

56This requirement is to be treated as a legislative guidepost, having the same function as the maximum penalty.  It does not affect the established instinctive synthesis to sentencing or require or permit two-stage sentencing.  I consider the offending in charge 1 to fall somewhere just below the mid-range of seriousness for an offence of this type.

57The court must only have regard to sentences imposed in cases where the standard sentence regime applies.  I will return to this shortly.

58I have taken the standard sentence for rape into account, as one of the factors to consider in my instinctive synthesis of all the relevant factors in your case. 

59Pursuant to s.11A of the Sentencing Act 1991, the non-parole period I impose for a standard sentence offence must be at least 60% of the total effective sentence, unless the court considers that it is in the interests of justice not to do so.

60Both your counsel and the prosecution submitted that a head sentence and non-parole period is the only available sentencing disposition. 

61I was provided with a number of comparable cases by each counsel but can of course only take into consideration those dated after the imposition of the standard sentencing scheme.  I have considered these matters, in addition to the sentencing snapshot provided by the prosecution. 

Disposition

62On Charge 1, rape, you are sentenced to five years 10 months imprisonment. 

63I direct that you serve a minimum non parole period of three years and nine months before being eligible for release on parole.

64I declare that pursuant to s18 of the Sentencing Act 1991, you have served
105 days excluding today by way of pre-sentence detention.

65I note the serious sexual offender provisions do not apply.

66I further note there is no application for your inclusion on the Sex Offenders Register. 

67Pursuant to s.6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, the sentence I would have imposed would have been eight years imprisonment with a non-parole period of five years nine months imprisonment.  You may be seated.  Is there anything else Ms Sargent?

68MS SARGENT:  No, Your Honour.

69HER HONOUR:  Is there anything else from you Mr Grant?

70MR GRANT:  No thank you, Your Honour.

71HER HONOUR:  Thank you, you can take Mr Sao out.  I thank both counsel again for their assistance with this matter.  We will adjourn the court until tomorrow morning.

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