Director of Public Prosecutions v Su
[2018] VCC 578
•27 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02247
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIANFANG SU |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 April 2018 | |
DATE OF SENTENCE: | 27 April 2018 | |
CASE MAY BE CITED AS: | DPP v Su | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 578 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge of sexual penetration of a child under 16
Legislation Cited: Crimes Act 1958; Sex Offenders Registration Act 2004; Sentencing Act 1991
Cases Cited:
Sentence: 25 year old offender and victim of 15 years 8 months - Boyfriend/girlfriend relationship – Representative charge involving 2 acts of penis-vagina penetration on one night – significant delay of 4 years between commissions of offence and laying of charge – early and remorseful plea of guilty – substantial rehabilitative steps in 5 years between commission of offence and sentence – TES 2 year CCO with 150 hours unpaid community work and mental health assessment and treatment (for offenders intense symptoms of Adjustment Disorder with anxiety)
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms L Di Pietrantonio | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr S Gardner | Galbally and O’Bryan |
HER HONOUR:
1 Tianfang Su, you have pleaded guilty to one charge of sexual penetration of a child under the age of 16 years. This charge carries a maximum penalty of 10 years’ imprisonment.
2 The charge is a representative charge. It includes two occasions of you penetrating your victim’s vagina with your penis between 1 and 2 July 2013. As the Charge is a representative one, it cannot be said that your offending was confined to one isolated act. However, the two acts occurred on the one night, separated by a few hours.
3 The circumstances of your offending are summarised in the prosecution opening (Exhibit A). At the time of your offending, you were aged 25 years and your victim, who was born on 26 October 1997, was aged 15 years and approximately eight months. You and your victim had met on 11 May 2013 and began a relationship and were seeing each other regularly. The two of you would kiss and were affectionate, however, you did not have sex.
4 On 1 July 2013, the two of you planned to visit Phillip Island to see the penguins. You arranged for your victim to spend the night at your place so that you could leave early the next day, but did not tell your victim’s guardian that she was spending the night at your home. That evening, the two of you were on your bed. Your victim was wearing pyjamas and you were hugging her from behind. The two of you kissed and you took off her clothes and your own. Your victim was lying on her back and you positioned yourself on top of her. You tried to separate her legs and your victim resisted and you stated, “So you don’t want us to have a closer relationship?” following which your victim allowed you to insert your penis into her vagina. You initially had no condom, but removed your penis, put on a condom and continued sexual intercourse until you ejaculated. Your victim was a virgin and the sexual penetration caused her a great deal of pain. This is the first occasion relied upon by the prosecution on the representative charge and is the one for which you are to be sentenced.
5 The following morning at approximately 4.30am, you woke up and you and the victim kissed and hugged one another. You asked if you could have sex again and, then, inserted your penis into the victim’s vagina and removed it and put on a condom and continued sexual intercourse until you ejaculated. This is the second occasion relied upon for the representative charge.
6 As you and your victim were driving to Phillip Island she received a telephone call from her guardian telling her to return home immediately. When she did so, he told her that she must tell her father (who lived in China) that she had stayed at your home. That afternoon, you received a call from the principal of the victim’s school, who advised that the victim’s father wanted the matter reported to the police.
7 In a VARE statement made by the victim on 6 July 2013, she stated that what happened was “too early for me … too early for us … he never said he loved me before.” She went on to state that, although she did not think it should have happened, “from my side I think I was willing to do it.”
8 When interviewed by police on 9 July 2013, you made full admissions. When told by police that you had committed a criminal act, you stated, “I just can’t believe it…it’s a bit different in our country but I know if the girl is under 14 or 13 years old its criminal but I think she’s almost 16 and we’re boyfriend and girlfriend…I not force her to do anything”. You also stated that when you first met the victim you thought she was 17 or 18 and were surprised when she told you that she was 15 years old. You also stated that you were aware she was a virgin and you were gentle and told her that you loved her. You further stated that after 10 or 15 minutes of “trying to make love with her”, you put on a condom. You stated on the first occasion, “There was a little struggling from her….she said ‘this is my first time. I’m afraid’ “ You stated that the struggling consisted of her “pushing [him] back…trying to twist” when you were trying to spread her legs. However, she did not struggle on the second occasion.
9 After being interviewed by police and making admissions, a brief to proceed was not authorised. Apparently, you rang the informant on a number of occasions to see what was happening and, approximately 12 months after you had been interviewed on 9 July 2013, the informant told you that the matter would not proceed.
10 Over four years later, on 4 September 2017, a summons was issued charging you with this offence. This came as a great shock to you, however, you pleaded guilty at the earliest opportunity. The prosecution has acknowledged that this delay is a significant mitigating factor and, in all of the circumstances, a non-custodial sentence is within range.
11 You are presently aged 29 years, having been born on 29 May 1988. You come before the Court with no prior or subsequent convictions.
12 You were born in China and came to Australia in 2009 on a student visa. You have been engaged in study in Australia since that time. However, because of this charge, renewal of your student visa was denied in December 2017, and you are currently on a bridging visa pending the outcome of this sentence.
13 Mr Su, I accept that, at the time of offending, you genuinely believed that the age of consent was the same as in China, namely, 14 years.[1] However, you had been in Australia for four years by the date of offending and should have acquainted yourself with the law in this country. Ignorance of the law may explain, but never excuse, criminal offences. The law provides special protection to children under the age of 16 for a reason. It is because children under this age lack the life experience and emotional maturity to appropriately comprehend and handle such activity and its potential ramifications in the same way that adults do, even if there is no predatory conduct on behalf of the adult. This vulnerability is demonstrated in the Victim Impact Statement which has been filed in this case, Exhibit B.
[1]See Exhibit 1
14 Your victim was a secondary school student studying in Australia, away from her family in China. In her Victim Impact Statement, she states that she used to be happy, positive, optimistic and trusting. However, after your offending, she became angry, sad, fearful, depressed and has not been able to trust anyone since, especially men. She describes having withdrawn from her friends for about a year and how your offending affected her relationships with her family, particularly with her father, who was so angry and shocked that he was unable to accept her as his daughter for a long period of time. She felt that she lost her father when she needed him the most. She blames herself for being too trusting and naïve and is now hyper-vigilant in her interpersonal relationships, which has an adverse effect. She has trouble with concentration, motivation, energy levels, memory and confidence and suffers impacts on the efficiency of her learning and, also, has feelings of being unsafe. All of these consequences are the types of long term impacts that can occur when a child has been the subject of sexual activity before she is ready.
15 Although I accept that you were in an affectionate relationship with your victim, you persuaded her to have sex before she was ready to do so. The law presumes harm to children under the age of 16 who are offended against in a sexual manner, regardless of consent. Also, the law acknowledges that the impact of such offending conduct may be delayed and long lasting, even though, on the first occasion, your victim was persuaded by you to engage in sex, and, on the second occasion, the following morning, she freely engaged in sex with you. Consent can never be a defence to a charge of this type, and your victim is in no way to blame. You were approximately 9 ½ years older than your victim, and your offending occasioned the loss of her virginity. Moreover, in the initial stage of each sexual act you did not protect your victim’s wellbeing by wearing a condom, even though you later did so at the time of ejaculation.
16 In a plea on your behalf by Mr Gardner a number of matters in your favour were urged upon the court, and I take them into account. They are as follows:
(i) When interviewed by police you made a full and frank confession to the offending conduct.
(ii) You endured a period of anxiety for approximately one year before being assured by police that a brief to prosecute had not been authorised. Then, after a delay of a further three years, a summons was issued on 4 September 2017. This delay was in no way attributable to you. Indeed, given your confessions to police, there is no explanation as to why a charge could not have been laid promptly.
(iii) Once the summons was issued, you pleaded guilty to the charge at the earliest opportunity. Your plea has substantial utilitarian value in saving the time and expense of a trial. Further it has spared your victim having to give evidence, and I am satisfied that you suffer true remorse.
(iv) During the period of over four years’ delay before the summons was issued, not only did you lead a law-abiding life, but endeavoured to continue your study here in Australia by completing a Diploma of Mechanics at Chisholm TAFE and, also, by enrolling in a Bachelor of Business Management at Cambridge International College. You have now completed 1½ years of that 3‑year course. You supported yourself by working hard and undertaking unskilled employment. Once the charges were laid and your student visa was not renewed in December 2017, the conditions of your current bridging visa meant that you were unable to work more than 20 hours per week. However, you have done your best by getting up at 5am during the working week to try and do cleaning jobs in order to support yourself while still continuing to study.
(v) Since the offending behaviour, you have embarked on a new relationship with Ms Wang, which is now of some years’ duration. In a reference dated 27 March 2018 (part of Exhibit 3) she stated that, when the two of you first met, you were honest and told her about the charge, and she was shocked, as she states that you are a gentle, respectful, kind and polite person. She stated that, at the end of 2014 when police told you that the case was closed, you were keen to move on with your life, and you have enjoyed a stable and happy relationship, and you have worked hard doing cleaning work and undertaking your study. When you were ultimately charged in 2017, she described your whole world as collapsing, you having difficulty falling asleep, and difficulty staying asleep. She states that you are a good person who has expressed deep regret for your actions, but suffered so much that both she and your teacher encouraged you to see a psychologist for counselling. Another reference from Di Lu, who has known you since you were six years old, as your families were close when you were growing up in China, confirms your diligence and high moral standards, and that this offending is out of character for you, as you have always been a shy, polite person. A third reference from Jiapeng Yang, who was studying Automotive Management at Chisholm Institute with you, also confirms your good character, your positive attitude towards study and strong work ethic, and how deeply you regret your offending behaviour.
(vi) A report from Mr Patrick Newton, clinical and forensic psychologist, dated 21 March 2018 (Exhibit 2), notes that you have experienced significant reactive anxiety since being charged in relation to this matter in 2017. You initially consulted a psychologist at TAFE where you were studying, and Mr Newton assessed you on 5 February 2018. He noted ongoing experiences of unsettling anxiety and apprehension, hyper-arousal, physical tension, difficulty relaxing, prominent tension headaches, changes to appetite, and recurrent sleep disturbance, along with feelings of fatigue and mental clouding. He considered that your symptoms were somewhat more intense than typical, and diagnosed you as suffering an Adjustment Disorder with anxiety. He assessed this as a relatively intense response to the stressors that you were suffering. He considered that there are no indications that you are in any way deviant, and you are in a relationship which seems to be one of mutual companionship, pleasure, and friendship. He stated that there is no indication of any sexual dysfunction, paraphilia, or sexual disturbance.
Mr Newton noted that you are able to discuss the importance of psychological and emotional maturation in evaluating whether an individual is sufficiently mature to engage in sexual relations, and were emphatic that, had you known that the age of consent in Australia was 16 years, you would not have participated in the relationship with your victim. He also noted that you had never accessed child exploitation material, are capable of establishing and maintaining mature intimacy with adult women, and that there is no indication that you had pursued activities which brought you into contact with underage individuals. He concluded that your interactions with your victim did not arise from paraphilia or any similar sexual disorder on your part.
Mr Newton conducted risk assessments based upon the Static-99 and RSVP assessment tools. He concluded that your offending did not manifest typical features associated with an elevation of risk. He considered that you have good insight into issues associated with your offending such as the age of consent and psychosexual development of young women, and accept responsibility for your actions, and do not endorse typical offence-supporting cognitive distortions. He considered that you are at low risk of reoffending, and, indeed, that your risk of recidivism was significantly lower than that of a typical sex offender in the community. His opinion is that sex-offender treatment is not indicated in your case. He considered that your prospects for rehabilitation were good, particularly noting the support of your partner of some years, stable accommodation, good work skills, and the lack of any psychological disorder that would act as an impediment to rehabilitation, together with the fact that you do not suffer any behavioural, substance-related, or sexual problems that would act as criminogenic risk factors. He stated that your prognosis for full recovery was positive.
(vii) As previously mentioned, once you were charged with these offences your student visa was not renewed, and you have been placed on a bridging visa pending the outcome of this proceeding. Mr Gardner pointed out on your behalf that, had there been no delay in bringing this charge against you, then the provisions of s501(6)(e)(i) and (ii) of the Migration Act which came into operation on 11 December 2014, would have no application, to you. According to those provisions, if a term of imprisonment is imposed, the Minister for Immigration must cancel your visa. However, regardless of whether a term of imprisonment is imposed, if a person is convicted or found guilty of a sexually-based offence involving a child, this enlivens the ministerial discretion. Thus, pursuant to s501(3) the Minister may refuse a visa pursuant to sub-paragraph (a) or cancel a visa pursuant to sub-paragraph (c). Whilst it is plain that I should not tailor my sentence according to any executive action, and there is no certainty that you would be deported, I nevertheless take into account that you have suffered, and continue to suffer, the burden of not knowing what your fate may be in this regard. In circumstances where you have now been in Australia for the last 9 years and are half-way through a course of study and have been in a stable relationship for approximately 4 years. I consider it highly likely that the uncertainty concerning your immigration status has added to your Adjustment Disorder with anxiety.
17 Mr Su, the law regards offences of this type as being very serious. Generally in sentencing for such offences the court must denounce such conduct and place emphasis upon general deterrence and, usually, a custodial sentence would be appropriate. However, taking into account all matters in your case, I have determined that your moral culpability for this offending is low. As I have said, I accept that there was a relationship of real affection between yourself and the victim, and that you did genuinely believe that the age of consent was 14 years of age, as is the case in the country of origin of yourself and your victim. I am satisfied that your offending conduct was not predatory or exploitative. Indeed, in your record of interview you told police that on one previous occasion you had both shared a bed together overnight at your victim’s residence and no sexual intercourse or attempted sexual intercourse had occurred. I accept that the offending occurred in the context of your victim staying overnight at your house because it was somewhat closer to Phillip Island where you both intended to travel the next morning, and, as you told the police in your record of interview, after you kissed, “the heat it was raising”.[2] Thus, I accept that there was no pre-meditation by you to commit the offence.
[2]Answer to Question 114
18 When interviewed by police you made very full and frank disclosures about what had occurred. You had sufficient insight to know that you must have no further contact with your victim, even though you and she were fond of each other. I accept that you understood the shame that she suffered, particularly culturally with her family. I am satisfied that since that time, you have demonstrated further insight into your offending, as detailed in Mr Newton’s report, concerning the psycho-sexual development of young women, and you have totally accepted responsibility for your actions. Apparently, after your victim’s guardian insisted that she contact her parents in China, and police became involved, and you were interviewed, your victim sent you a letter apologising for the impact of this course of events upon you. Your counsel stated that you destroyed this letter because you accepted, in essence, that she (not you) was the victim. At the plea hearing I asked whether you would care to elaborate upon the effect of your offending upon the victim. You wrote a letter to the court dated 5 April 2018 (Exhibit 4). In that letter you acknowledge having read the victim impact statement and that she has suffered through your fault, and that you are very regretful for your behaviour. You acknowledge the difference of nearly 10 years between you, and also the effect that your behaviour had on your victim’s relationship with her strict father. You express sorrow that she should blame herself for the mistake made by you, and apologise for your behaviour, take responsibility for it, state it was never your intention to hurt your victim, and you would never repeat conduct like that for the rest of your life. I accept that you are genuinely remorseful for what happened and that your remorse is reflected by the fact that you pleaded guilty at the earliest possible opportunity.
19 The other powerful mitigating factor in your favour is the long delay of over 4 years between the commission of the offence and the laying of the charge. “The law acknowledges that a legitimate sense of unfairness can develop when the criminal justice system proceeds in too leisurely a fashion”.[3] Its adverse impact upon your psychological state and the very significant rehabilitation gains you have made during the period of delay are factors which, in the circumstances of this case, play a dominant role in the sentencing process. You are undoubtedly an older and wiser person now than back in July 2013.
[3]R v Merrett Piggott & Ferrari (2007) VR 392 at 400 para 36
20 It seems to me that apart from the delay having weighed heavily upon you, you have done your best to rehabilitate yourself in the meantime, particularly by seeking psychological counselling and continuing to study and work hard within the confines of your bridging visa by rising at 5am most mornings in order to undertake cleaning work of 20 hours per week in order to support yourself. Further, you have entered an age-appropriate, committed and stable relationship of some years’ standing with Ms Wang, who is very supportive of you. These factors, together with your lack of any prior or subsequent criminal offending, bode very well for your rehabilitation. Further, I accept Mr Newton’s assessment that your personality adjustment, social adjustment and mental health are all good, and that you show no indications of deviant or paraphilic interest, and the fact of having faced these charges is a cause of considerable shame and distress for you. I also accept Mr Newton’s assessment, having applied the relevant tests, that you are at low risk of recidivism to sexual offending. Indeed, he states that your risk is significantly lower than a typical sex offender in the community. In these circumstances I do not consider that specific deterrence needs to be emphasised in the sentencing process (I here note that the second act of sexual penetration took place within hours of the first act during the same night of sleeping together). Nor, in the circumstances, do I consider it appropriate to order that you should undergo a sex-offender treatment program.
21 Given the particular circumstances of your case, particularly that you are now well aware of the law in Australia and that I find your plea of guilty to be an early and remorseful one, and the protective rehabilitative factors by way of an ongoing stable relationship and support, together with a sound work and study ethic, and the insight that you have gained into the impact of such offending on the victim, as well as the significant shame that you feel by having offended in this way, I do not consider that you are likely to be a danger to the community. In all of the circumstances, I consider it appropriate to impose a community correction order as the sentence in the somewhat unusual circumstances of this case, particularly having regard to the very significant delay between the commission of the offence and your being charged with it.
22 For the same reasons that I have articulated, which lead me to the conclusion that your moral culpability is not high and that your risk of re-offending is low, and that you do not pose a danger to society, I have exercised my discretion against granting an order sought by the prosecution pursuant to s464ZF of the Crimes Act 1958 for a forensic sample.
23 On one charge of sexual penetration of a child under the age of 16, being a charge representative of one further occasion, you are convicted and sentenced to undertake a community correction order for a period of two years.
24 The following terms are attached to the order.
(a) you must not commit, whether in our outside Victoria, during the period of the order, an offence punishable by imprisonment;
(b) you must comply with any obligation or requirement prescribed by the Regulations;
(c) you must report to, and receive visits from, the Secretary during the period of the order;
(d) you must report to the Community Corrections Centre specified in the order within two clear working days after the order coming into force;
(e) you must notify the Secretary of any change of address or employment within two clear working days after the change;
(f)you must not leave Victoria, except with the permission, either generally or in relation to a particular case, of the Secretary;
(g) you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
25 In addition, the following conditions are attached to the community correction order.
(a) you must perform 150 hours of unpaid community work over the period of the order;
(b) you must undergo any mental health assessment and treatment as directed by the Secretary relating to your diagnosed condition of an Adjustment Disorder with Anxiety;
(c) you must undergo any other treatment or rehabilitation directed by the Secretary (but not a sex-offender treatment program), including employment, educational, cultural and personal development programs consistent with the treatment and rehabilitation conditions.
26 I should note that I have a report from the Office of Corrections which deems you suitable for a community correction order (Exhibit C). I note that a supervision condition has been recommended by the assessing officer, who has also indicated that you should be considered for assessment and participation in the Sex Offenders Advice and Treatment Services Program. However, in the light of the particular circumstances of your case, and the time that has elapsed since the offending, and your unblemished record in the almost five years since the commission of the offence, together with the assessment of Mr Newton that such program is not warranted, I find it not appropriate to include either a supervision or a sex-offender treatment program as a condition of the order.
27 Mr Su, I can only make a community correction order with the terms and conditions which I have read out if you are prepared to consent to it. Do you consent to such an order?
28 As you have been convicted of a Class 1 offence pursuant to the Sex Offenders Registration Act 2004, registration under that Act is mandatory and the period of registration is fifteen years. I will have my Associate provide you with a copy of your obligations under that Act and ask that you acknowledge receipt of that document with your signature please.
29 Mr Su, is this your signature on the community correction order?
MR SU: Yes, it is.
30 Mr Su, by signing that order, do you agree that you understand the terms and conditions of the order?
MR SU: Yes, I do, Your Honour.
31 Mr Su, do you agree to obey the community correction order with those terms and conditions?
MR SU: Yes, Your Honour.
32 Mr Su, you must understand that if you do not obey the conditions, then you can be brought back to Court for contravention of the order. Contravention of a community correction order is, in itself, a criminal offence, which carries the maximum penalty of three months’ imprisonment. In addition, if you have failed to comply with the order, it may be that if the matter is returned to Court before me, then the order may be varied or cancelled, and it is possible that an alternative sentence may be imposed. Do you understand that?
MR SU: Yes, Your Honour.
33 Pursuant to s6AAA(1)(b) of the Sentencing Act 1991, I state that, had it not been for your plea of guilty, the sentence imposed would have been a Community Corrections Order for a period of 3 ½ years with a punitive element of 350 hours unpaid community work, along with the other conditions ordered today.
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