Director of Public Prosecutions v Sor

[2020] VCC 1947

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-17-02298

DIRECTOR OF PUBLIC PROSECUTIONS

v

SILVESTER SOR

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JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2020
DATE OF SENTENCE:	3 December 2020
CASE MAY BE CITED AS:	DPP v Sor
MEDIUM NEUTRAL CITATION:	[2020] VCC 1947

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:                 Sentence — rape — plea of guilty — change of plea — victim impact statement — psychological assessment — neuropsychological assessment — remorse — low risk of reoffending — prospects for rehabilitation — breach of trust — sleeping victim — general deterrence — denunciation — just punishment

Legislation Cited:        Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)

Cases Cited:Coronado v The Queen [2016] VSCA 86; Director of Public Prosecutions (Vic) v Hughes [2018] VCC 165; Director of Public Prosecutions (Vic) v McInnes [2017] VSCA 374; R v Verdins (2007) 16 VR 269.

Sentence:  Total effective sentence of 2 years with non-parole period of 1 year

Section 6AAA declaration: 3.5 years with non-parole period of 2 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D Glynn	Office of Public Prosecutions
For the Accused	Ms C Hollingworth	Pica Crime

HER HONOUR:

1Silvester Sor, you have pleaded guilty to one charge of rape, for which the maximum penalty is a term of imprisonment of 25 years.

2Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’. In brief, the circumstances of your offending are as follows. The victim is Amelia Fields.[1] You met Ms Fields when you were both 22 years old and you had a short sexual relationship for three months. When you ended your sexual relationship, you remained friends.

[1] A pseudonym.

3On 7 July 2017, you and Ms Fields and other friends went out for drinks and then to a nightclub. Ms Fields was the designated driver for the evening and therefore she did not consume any alcohol. You, Ms Fields and your friends were at a nightclub between 10:30pm and 3:30am. At the end of the night, Ms Fields drove you and some friends to her home and then drove a number of other friends to their respective homes.

4At her home, Ms Fields arranged sleeping accommodation for her friends and invited you to sleep in her bed with her. You and Ms Fields went to bed at approximately 4:30am. You wore tracksuit pants and a singlet top. Ms Fields was wearing a T-shirt and underpants. You both fell asleep. There was no sexual interaction or any touching between you before you fell asleep.

5Ms Fields’ next recollection was waking up at about 7am to find you having penile–vaginal sex with her. She yelled at you to get off and you stopped immediately and apologised, saying that you did not know what you were doing and that Ms Fields had grabbed you in a way that made you think she wanted sex. Ms Fields was crying and you left her home.

6Ms Fields reported the matter to the police that day. Throughout the morning, you sent text messages to her apologising for your actions. You were interviewed by the police on 8 July 2017. You gave the police a somewhat confusing narrative about what had occurred, but you told police you realised the victim was asleep when you penetrated her vagina with your penis. You said you could not control yourself, you got on top of her, pulled your pants down, slid her underpants to the side and inserted your penis into her vagina for a short time.

7You said when Ms Fields awoke, she pushed you away and you removed your penis from her vagina. You were not wearing a condom, and you did not ejaculate. You told police penetration was ‘barely … five seconds’ and was only ‘one thrust’ before Ms Fields woke up. You said she was shocked, shaking and crying. You expressed your shock and you said to police, ‘I can never forgive myself … [I’m] hurt on the inside for what I’ve done to the poor girl … she’s probably traumatised … I was thinking suicidal thoughts’. You admitted in your record of interview that you knew it was wrong to have sex with someone when she was asleep.

8Ms Fields has made a victim impact statement. She says that your crime has left her struggling to enjoy life and to trust anyone. She says it has taken her a long time to open up to people, including her partner. She says some of her friends have not believed her and that she has lost friends because of this. She says she used to be a social person but now is reserved and does not go out. She says she suffers from depression, anxiety attacks, panic attacks and nightmares.

9You pleaded guilty at arraignment on 8 September 2020. That is over three years after your offending. Ms Hollingworth, who appeared on your behalf, submitted that, notwithstanding the considerable delay, I should still regard this as an early plea. She outlined the procedural chronology. The chronology was also set out in some detail in the prosecution opening. After initially instructing your solicitors that you would plead guilty and entering a plea of guilty to the charge of rape at a committal mention in the Magistrates’ Court on 10 November 2017, the matter proceeded by way of straight hand-up brief and was listed for a plea hearing in this Court in April 2018.

10A psychological report from Mr Ian Joblin dated 16 February 2018 had been obtained for your plea hearing, but your legal representatives considered this report inadequate and your plea hearing was adjourned until August in order for you to obtain a further report.

11A report was obtained from Alison Mynard, psychologist, dated 3 August 2018. You had spoken with Ms Mynard on 10 July 2018. Ms Mynard gave the opinion that you suffered depression and anxiety. You told Ms Mynard that you were remorseful. Ms Mynard was of the view that you understood that Ms Fields must have felt violated and shocked because she had not given her consent to having sex with you at the time. In other words, it was Ms Mynard’s view that you understood the wrongfulness of your conduct.

12Notwithstanding your admissions in your record of interview, and your expressions of remorse in the immediate aftermath of your offending and your expressions of remorse and acknowledgement of wrongdoing to Ms Mynard, you now gave instructions that you wanted to plead not guilty and proceed to trial.

13Your second plea date was vacated, and a trial was listed on 19 August 2019. This first trial date was then vacated when you engaged new solicitors who sought an adjournment in order to obtain a neuropsychological report. A neuropsychological report was obtained from Martin Jackson dated 12 September 2019. This report indicated that you had an intellectual disability and Mr Jackson also expressed concerns about the conduct of the record of interview.

14Mr Glynn, who appeared to prosecute, pointed out that you gave an exculpatory account to Mr Jackson about what had happened on 8 July 2017, contrary to what you had told police in your record of interview and contrary to your prior expressions of remorse and acceptance of your criminal responsibility for what had occurred.

15A second trial date of 2 March 2020 was listed. This trial date was also vacated in order to investigate your fitness to plead. Mr Jackson prepared a further report on this issue. It seems that this course was abandoned. By this time, however, the COVID-19 pandemic had thrown the administration of criminal justice in this State into disarray. In particular, jury trials were suspended.

16You made and were granted an application for a judge-alone trial in August 2020. This commenced in front of Judge Dean on 4 September 2020. This was the third trial listing. There were two significant pre-trial issues to be determined: the admissibility of portions of the record of interview and the admissibility of your plea in the Magistrates’ Court. Mr Jackson gave evidence on Friday 4 September 2020.

17You gave instructions to plead guilty over the weekend before any ruling was made by Judge Dean or any evidence was given by the complainant. Ms Hollingworth pointed out that, notwithstanding the delay, the only witness to have given evidence in this matter has been Mr Jackson, although Ms Hollingworth accepted that the delay and the matter having been listed three times for trial and not proceeding would have caused considerable stress to Ms Fields.

18It was Ms Hollingworth’s submission that you could only be guided by your legal representatives, who sought legitimately to explore issues concerning your mental health. However, as far as I understand the chronology, all of this was preceded by a change of instructions on your part. I accept the submission of Mr Glynn that this was a change of position that flew in the face of your early admissions and expressions of remorse and your clearly expressed understanding that it was wrong to have sex with someone who was asleep.

19I cannot accept the submission by defence that this was an early plea, but it is a plea of guilty and that remains a significant matter in mitigation. Your plea has utilitarian value in that it has saved the witnesses and the community the cost and trauma of a trial, and its utilitarian value is heightened in the current situation of ongoing stress upon the administration of criminal justice in this State caused by the COVID-19 pandemic.

20I am also prepared to find your plea is indicative of remorse. Further, I am prepared to find that your remorse has not been significantly diminished by your change of instructions in around August 2018. It seems to me that you have struggled with the enormity of what you have done and its consequences, including the consequences for you and your future. You have in my view expressed genuine remorse for your actions and shame that you have hurt and betrayed your friend, Ms Fields.

21I turn now to your personal circumstances. You were born on 16 August 1994 in Melbourne and grew up in the Narre Warren South area. You are presently 26 years old. Your parents are Cambodian. You are the oldest of three siblings.

22Your parents separated when you were 10 years old. They have both re-partnered and have had children with their new partners. After your parents’ separation, you lived with your mother, but at 16 you went to live with your father.

23You describe your father as a violent alcoholic who was violent to you and your stepmother. At 20, you returned to live with your mother and siblings, where you remain to this day. You have a close relationship with your mother and your siblings.

24You spoke Khmer, the Cambodian language, at home, and only learnt English at school with the assistance of a teacher’s aide. You experienced bullying at school. You were not academic but progressed without having to repeat any years.

25You left school three months into year 11 and went to work in a factory. You then began but did not complete an apprenticeship as a landscape gardener, after which you have had an intermittent employment history. You are currently unemployed.

26You have consumed alcohol and various illicit drugs recreationally and at times your consumption of these drugs has been problematic, including an episode of overdose after you reported taking three MDMA tablets on 9 November 2016. You currently report that you only drink on social occasions and that you do not have any drug or alcohol issues.

27You have some limited psychiatric history which is detailed in the report of Dr Loretta Evans, consultant neuropsychologist, dated 28 October 2020, which was tendered upon your plea. Dr Evans concluded that you do not have an intellectual disability, although she found you had cognitive deficits — in particular, you have compromised language-based skills and limited verbal reasoning.

28Dr Evans noted your reported history of chronic anxiousness and depression and noted the earlier opinion of Ms Mynard of generalised anxiety disorder and dysthymic disorder, a persistent depressive disorder. You have been deeply affected by the death of your grandparents — most recently, your grandmother in May of this year — and you have had four friends commit suicide, which has distressed you. You are currently prescribed and are taking antidepressant medication.

29There was no submission that there was any application of Verdins’ principles in your case,[2] but I accept Dr Evans’ opinion that you are a vulnerable individual from a psychological perspective. In conjunction with your youth and this being your first time in custody, and with current restrictive conditions necessitated by the COVID-19 pandemic, taken altogether, prison will be a very difficult place for you.

[2]R v Verdins (2007) 16 VR 269.

30You have had two prior appearances for dishonesty offences in 2014 and 2015, for which you were dealt with by way of bonds and fined without conviction. You have no other matters pending before the courts.

31Your mother, Chanthoeun Nim, and your partner, Katelyn Grande, have provided character references. Both say they regard your offending as out of character. Ms Grande says that you are devoted to your mother and your siblings. She says she is committed to you and you hope to marry and have a family together.

32Both Ms Mynard and Dr Evans have given the opinion that you are a low risk of reoffending and I accept this is the case. I consider, given your youth, remorse, the support you enjoy from your family, and the opinions of both Ms Mynard and Dr Evans that you would be responsive to treatment, including offender-specific programs, and are a low risk of reoffending, that your prospects for rehabilitation are good.

33In further written submissions prepared after the plea, Ms Hollingworth submitted that you had been subjected to extra-curial punishment as a consequence of a newspaper article which identifies you and which was widely shared on social media. The article described you as a ‘fiend’ and had a comment section in which readers described you as a ‘mole’, a ‘rat’ and a ‘scumbag’. Your girlfriend Katelyn was also subject to online abuse as a consequence of the article.

34You have committed a serious crime which is a legitimate topic of public discussion, and which will inevitably attract some degree of public opprobrium. However, I accept the publicity in your case, although limited, has caused you and your girlfriend some unnecessary distress, and I will allow some modest mitigation of sentence in the exercise of my discretion to accommodate that fact.

35I turn now to consider the gravity of your offending and your moral culpability. Rape is an inherently serious offence. It can be committed in a variety of surrounding circumstances which cover a wide spectrum of criminal culpability, but it is always a crime which involves the violation of a person’s body and a person’s right to sexual and physical autonomy. It is also a crime which can cause feelings of deep distress, self-reproach and humiliation to victims.

36The effect upon the victim is an important sentencing consideration. Your offending involved a breach of trust. Ms Fields was your friend. You were sleeping in her bed, in her home, because she trusted you and did not imagine that you would take advantage of her when she was asleep and vulnerable. However, the incident was very brief. It was opportunistic and impulsive and not pre-meditated and did not involve any physical violence. In all the circumstances, I consider your offending and moral culpability to be at the lower end of the spectrum of seriousness for the offence of rape.

37I referred the parties to three cases which all involved opportunistic offending against former partners or, in the case of Coronado v The Queen,[3] a sleeping young woman at a party. The parties, by way of further submissions, referred me to additional cases involving penetration of a sleeping or unconscious victim. Defence referred me to two cases where a community correction order had been imposed for the offence of rape. They were the cases of Director of Public Prosecutions (Vic) v Hughes[4] and Director of Public Prosecutions (Vic) v McInnes.[5] These cases predate the designation of rape as a category 1 offence pursuant to s 5(2G) of the Sentencing Act 1991 (Vic), which requires that a sentence of imprisonment be imposed. Putting the cases of Hughes[6] and McInnes[7] to one side, these cases have been of some assistance in arriving at an appropriate sentence for you, but ultimately it is my duty to sentence you on the basis of the particular facts and circumstances of your case.

[3] [2016] VSCA 86.

[4] [2018] VCC 165 (‘Hughes’).

[5] [2017] VSCA 374 (‘McInnes’).

[6] [2018] VCC 165.

[7] [2017] VSCA 374.

38I turn now to the application of relevant sentencing principles. In sentencing you, I must have regard to a range of different factors. I must give effect to the principles of both general and specific deterrence. That is, I must deter others from behaving as you did, and I must deter you from repeating such behaviour. I must also express the community’s denunciation of your conduct, but I must promote, if possible, your rehabilitation. This is an important sentencing consideration given that you are still a relatively young person. I take into account the effect of your crime on your victim, and I have had regard to current sentencing practices and maximum penalties. In short, I have to try to balance your personal circumstances with the circumstances of your offending. I am required to impose no longer sentence than is necessary in all the circumstances of the case.

39It was agreed that given your remorse and the low risk of reoffending that you pose, there is no engagement of the principles of specific deterrence or community protection. General deterrence, denunciation and just punishment are the predominant sentencing considerations. The message must be sent that women set their own sexual boundaries and there is no situation where it is alright to disrespect or ignore another person’s right to sexual freedom and autonomy; that is, to choose whether or not they want to engage in sexual activity.

40There was no dispute that the only appropriate sentence is a sentence of imprisonment consisting of a head sentence and a non-parole period. Ms Hollingworth acknowledged that this must be the case, even without the application of s 5(2G) of the Sentencing Act 1991 (Vic). She did, however, on your behalf urge me to consider an extraordinarily short sentence of imprisonment.

41Balancing all the relevant sentencing considerations as best I can, I intend to sentence you as follows. On charge 1 of rape, you are convicted and sentenced to two years’ imprisonment. I am directing that you serve one year before you are eligible for parole.

42Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of three and a half years with a non-parole period of two years.

43Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served nil days of the sentence I have passed upon you and I direct that this be entered into the records of the Court.

44I make the forfeiture and disposal orders as per the application of the prosecution.

45Rape is a class 3 offence under the Sex Offenders Registration Act 2004 (Vic). Registration is discretionary. There has been no application to have you placed on the Sex Offender Register and, accordingly, I will not do so.

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