Director of Public Prosecutions v Thang
[2019] VCC 1234
•8 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00197
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RAM THANG |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 23 June 2019 | |
DATE OF SENTENCE: | 8 August 2019 | |
CASE MAY BE CITED AS: | DPP v Thang | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1234 | |
REASONS FOR SENTENCE
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Criminal law – Sentence – Plea of guilty to rolled up charge of rape – offending in company- unknown victim- genuine remorse – prospect of being held in indefinite detention after completion of sentence – application of parity principle - term of imprisonment imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J McWilliams (Plea) Ms J Malobabic (Sentence) | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr S Kenny | Stary Norton Halphen |
HER HONOUR:
1 Ram Thang, you have pleaded guilty to one charge of rape.
2 This is a rolled-up charge.
3 The particulars are that at Werribee, on 14 August 2017, Thwang Za Lian (referred to as Za Lian) and a co-offender intentionally sexually penetrated the victim RC[1] by each of them introducing their penis into her vagina without her consent in circumstances where you did not reasonably believe that RC consented to the penetration.
[1] ‘RC’ is a pseudonym.
4 You, together with Za Lian and another man Kapling Hlawnceu (Hlawnceu), each criminally responsible for the rape of RC. I shall explain why shortly.
5 Rape is a serious offence and that is reflected in the maximum penalty prescribed by law, namely 25 years’ imprisonment.
6 I shall now proceed to sentence you on the basis of the Prosecution Opening that was read at the plea hearing. I do not propose to read in full the details of the crime. A redacted copy of the opening will be attached to the revised sentencing remarks.
7 RC, was homeless at the time of the offending and was sleeping rough under the Werribee Bicentennial Bridge in the days preceding the rape. She was not known to you.
8 During the evening prior to the offending you, Za Lian and Hlawnceu, had been drinking together at the Commercial Hotel in Werribee. You arrived at the hotel shortly after 7.00pm and left at about 9.00pm. You all left together in the same vehicle and parked the vehicle in the street and took a six pack of Corona beer and walked towards the Werribee Bicentennial Bridge.
9 You and Za Lian noticed RC trying to get to sleep under the bridge and initially Za Lian and you approached her. Hlawnceu was watching you from a nearby embankment.
10 At approximately 9.40 pm on 14 August 2017, the victim was settling down for the night, when she noticed two men approaching her and she became concerned. She yelled for the men to stay back telling them to go away and leave her alone. When they approached her, she tried to push them away and began to kick and punch out in fear.
11 Hlawnceu, then joined the two men, who are Za Lian and yourself, and assisted them by covering RC’s mouth to stop her from crying out for help. RC was taken hold of by each of you three men and forcibly taken to the ground. RC was dragged underneath the bridge away from the street lighting and street view, where she was then forcibly raped.
12 Hlawnceu placed a jumper over her face covering her eyes and mouth preventing her from seeing her attackers and preventing her from calling for help.
13 RC was sexually penetrated by two different offenders who took turns raping her by introducing their penises into her vagina. The evidence establishes beyond reasonable doubt that Za Lian was one of the offenders who sexually penetrated her in this way but does not establish beyond reasonable doubt which of the other two men did so.
14 The Crown accepts that you were complicit in the criminal conduct of Za Lian on the basis that Za Lian sexually penetrated RC himself by penetrating her vagina with his penis without her consent and that you were complicit with a second, unidentified offender, who also sexually penetrated the victim by penetrating her vagina with his penis without her consent.
15 What that means is that you are responsible, through a legal doctrine known as complicity, for Za Lian’s act of sexual penetration and the act of sexual penetration perpetrated by the other second, unidentified offender.
16 A witness, Brie Ramage, who was driving past the area with her friend, Jodie Roberts, noticed the scene and intervened to stop what was occurring. Ms Ramage slowed her car and yelled out “what are you doing?” She saw the three offenders stand up and then she yelled out again, stating “what do you think you’re doing?” “get out of here.” She saw the men run away together.
17 Police were alerted and arrested you and the two other men shortly thereafter at a nearby location.
18 You have been remanded in custody since that date.
19
On 24 May 2018, I sentenced the other two co-accused in respect to a
rolled-up charge of rape.[2]
[2]DPP v Za Lian & Hlawnceu [2018] VCC 773
20 The Court of Appeal dismissed an appeal against sentence that was lodged by the Director of Public Prosecutions. [3]
[3]DPP v Za Lian & Anor [2019] VSCA 75R
21 Each of the three men are in your early 20’s. You were 21 at the time the offence was committed, Za Lian was 22 and Hlawnceu was 20.
22 Za Lian was sentenced to eight years and six months’ imprisonment with a non-parole period of six years. He was sentenced on the basis that he sexually penetrated the victim by penetrating her vagina with his penis without her consent, and that he was also complicit in a third man who is unidentified sexually penetrating her vagina with his penis without her consent.
23 Hlawnceu was sentenced to seven years’ imprisonment with a non-parole period of five years. He was sentenced on the basis that he was complicit with the two other males in that he provided assistance and encouragement to each of them to sexually penetrate the victim by restraining her in covering her mouth to prevent her from calling for help whilst she was raped.
24 You did not plead guilty until 14 May 2019, prior to matter being listed for trial. Earlier, on 2 January 2018, you had offered to plead guilty to the charge on the basis of complicity but you did not engage in the physical act of penetrating the complainant yourself. This matter was ultimately settled before trial following the Crown’s consideration of Professor Jamieson’s expert opinion filed on behalf of the defence.
25 I had regard to the delay in finalising the matter and the uncertainty occasioned by that delay. Given the course of these proceedings, I accept that your plea was entered at a relatively early stage and that you will be sentenced on that basis.
26 Sadly, the victim is now deceased. I have had regard to the contents of her Victim Impact Statement which she read to the court at the earlier plea hearing. This offending had a significant and profound impact upon her life. She suffered significant genital injuries as a consequence of this violent attack. In addition to the physical consequences she suffered significant Post-Traumatic Stress Disorder that impacted greatly upon her close personal relationships and she was also very wary and distrusting of people of Asian of appearance. She underwent extensive counselling as a result of the violent sexual trauma she suffered.
27 Mr Kenny conceded appropriately on your behalf that rape is a very serious offence and this instance of rape was a serious example of this offence. He conceded that the principles of general and specific deterrence, denunciation and just punishment are significant sentencing considerations.
28 There are many aggravating features to the offending, namely that the offending was committed against an extremely vulnerable complainant, who was alone at night, in an isolated public place, she was subjected to this violent attack that was committed in company, and both physical and psychological injury was caused.
29 The manner in which the offending occurred, namely, a prolonged, violent sexual attack committed by three men, one of whom obscured the victim’s view, would have compounded her sense of powerlessness, terror and distress.
30 On behalf of the community I condemn your actions.
31 No explanation for your offending has been offered. You were acquainted with the two other men through your connection to the Chin community. You took up their offer to join them drinking on this occasion. The only possible explanation for what occurred was that you were intoxicated and had been drinking with the other two men for some time.
32 Whilst that may provide an explanation for participating in the offending and your poor judgement, it in no way excuses this abhorrent behaviour.
33 You personally acknowledge that this was very serious offending on your behalf. You regret your role in this offending and accept responsibility for your actions.
34 I consider your moral culpability to be high.
35 The offending was humiliating, degrading and distressing for the powerless victim. You all ignored her pleas to be left in peace. I assess the objective gravity of offending as being at the high end of the range of seriousness for an offence of this type.
36 Your crime is deserving of stern punishment. General and specific deterrence, the protection of the community and denunciation must be emphasised in the sentence.
37 I have had regard to your background and history.
38 You were born in Myanmar and belong to the Hakha Chin community, a minority ethnic group within Myanmar. Hakha Chin practice Christianity and as a group are persecuted and economically marginalised in Myanmar. The group is close knit and many members including your father and step-mother and uncle were present at the plea hearing.
39 You are now 23. You are relatively still youthful.
40 Your family lived in an internal placement camp. Your parents separated when you were very young. Your mother, about whom you have little memory, died when you were about four years of age. You were then raised by your paternal grandparents.
41 Your father left Myanmar and lived in a refugee camp in Malaysia for some years. He re partnered and eventually he and your step mother and their two children settled in Australia. Arrangements were made for you to travel to Australia to be reunited with your father and his family. Six years after your father left you commenced your journey to Australia. Whilst in Malaysia, you were involved in a serious motorbike accident at age 14 following which you have experienced repeated fainting episodes.
42 In 2003 you arrived in Australia aged 17. You have been living in Australia on a permanent resident Visa. You lived with an uncle in Hoppers Crossing. Initially you engaged well with your community and church members but that engagement fell away over time attributable to your heavy drinking.
43 You do not have any prior criminal history. There is a subsequent matter that was heard at the Geelong Magistrates Court on 10 November 2017. It concerned the breach of a Family Violence Intervention Order for which you were without conviction fined $800.00. The offending occurred on 20 May 2017 and related to a former partner.
44 You have a basic command of English. In 2016, at the Wyndham Community and Education Centre, you completed equivalent to Year 10 of the Victorian Certificate of Applied Learning (VCAL) and had re-enrolled in 2017 into the intermediate level which was the equivalent of Year 11.
45 By reason of your offending, it has not been possible for you to be able to complete the course. You retain the support of your teachers and workers each of whom remain committed to you.
46 Your father, step mother, uncle, half-brothers and many members of the local Chin community have been present in court throughout the plea hearing and they are here at sentence and remain supportive of you.
47 A series of references tendered to the court reveal that prior to the offending you had been troubled and found settlement in Australia extremely difficult. Leaving Myanmar, reunification with your father and living as a refugee in Malaysia was traumatic. You often expressed feelings of sadness and hopelessness and turned to alcohol as a mechanism to cope.
48 By reason of your migration status, as a consequence of any sentence in excess of 12 months, your visa must be cancelled. You may then apply to the relevant Minister for revocation of that order. However, there is no certainty that that will occur. You face the prospect of real uncertainty about your future.
49 As a consequence of your offending you face the very real prospect of being deported from the country in which you have found refuge and in which you have been accepted. You face the very real prospect of spending some indefinite further time (after completion of your prison sentence) in immigration detention, following which you may be required to leave Australia for some other unknown destination.
50 I accept that the uncertainty which will hang over your head while you serve your sentence will add significantly to the burden of the term of imprisonment to be served by you.
51 Moreover, the prospect – the likelihood of which cannot, at this time, be determined – that you will ultimately be deported from this country has been taken into account as a further punishing consequence of your offending. And those issues have been taken into account in mitigation in your favour.[4]
[4]See Schneider v The Queen [2016] VSCA 76, which confirmed again the line of authority from Guden v The Queen[2010] VSCA 196; [2010] 28 VR 288, Lima da Costa v The Queen[2016] VSCA 49 and Konamala v The Queen[2016] VSCA 48
52 You have many people who are willing to support you whilst you are undergoing your sentence. I have read all the reference materials. Previously you have participated in the Melbourne Chin Church and are considered by members of the church to be a good young man with good values. You have been provided with ongoing assistance from the pastors.
53 You have demonstrated remorse for your conduct when visited by various members of the church.
54 When you attended youth group you were well-liked by your peers and would assist in organising events.
55 You have used your time in prison productively undertaking occupational courses, as well as some basic alcohol programs.
56 I have had regard to the contents of Mr Jeffrey Cummins’ report dated 6 June 2019. When interviewed, you acknowledged having a problem with alcohol, and that alcohol played a causative role in this offending behaviour in the sense that, if you have not been intoxicated, you would not have continued to associate with your co-offenders and been involved in this offending.
57 Mr Cummins diagnosed alcohol use disorder of moderate severity. He recommends further assistance in relation to your dependence on alcohol. He assesses your risk of further sexual offences as low to moderate and trending towards low. He states it would be wise for you to participate in offence specific treatment mainly because of the psycho educational component of a standard sex offender program. I recommend that the authorities take up this recommendation.
58 I have taken into account all the other matters raised in mitigation. Your plea does have high utility. You have spared the state the cost and inconvenience of a trial. At no stage in these proceedings has there been any suggestion that the victim would be required to be cross-examined. You have facilitated justice and your sentence will be discounted accordingly.
59 I accept that you are remorseful for your actions and that is demonstrated not only by your plea but also reflected in the remarks that you have made to the pastor and your relatives.
60 You are a person of otherwise good character. I assess your rehabilitation prospects as being good.
61 In sentencing you I must have regard to the sentences that were imposed on the co-offenders. The principle of parity applies.
62 I accept that your role is more akin to that of Hlawnceu. Unlike the situation with respect to Za Lian, the Crown could not establish beyond reasonable doubt that you had engaged in non-consensual penetrative sex with the victim.
63 There are some differences between you and Hlawnceu that I have had regard to. His sentence takes into account that he made full admissions in his formal record of interview and he was co-operative with the police. He expressed remorse in his record of interview. He offered to plead guilty at the first opportunity. And he was the youngest offender.
64 Your backgrounds and antecedents are similar, you are only slightly older but you do have the subsequent matter that I earlier referred to and you cannot rely on immediate expressions of remorse and co-operation.
65 Both counsel for the prosecution and defence agree that a significant term of imprisonment to be immediately served with a non-parole period being fixed is the most appropriate punishment.
66 This is your first experience of custody in an adult setting. Having regard to your cultural differences and lack of understanding of English, I accept that means your time spent in custody is more difficult than otherwise.
67 In formulating the appropriate sentence, I must impose just punishment.
68 I will now ask that Mr Thang stands while I read out the formal court orders.
69 On the one in charge of rape you are convicted and sentenced to seven years and six months’ imprisonment with a non-parole period fixed of five years and six months. I declare that you have served 724 days pre-sentence detention and I direct that that be noted in the record of the courts.
70 I make the following s6AAA Sentencing Act 1991 declaration, but for your plea of guilty, I would have imposed a term of nine years six months to serve seven years’ six months imprisonment.
71 Finally, I make the Disposal Order sought and I have just signed that Disposal Order so I will provide that to the parties.
72 All right. Mr Kenny, did you want to avail yourself of an opportunity to speaking to your client with the interpreter in the courtroom or will you go downstairs?
73 MR KENNY: I will do both just to (indistinct).
74 HER HONOUR: Okay.
75 MR KENNY: Can I just approach the dock now momentarily?
76 HER HONOUR: Yes, certainly. Certainly.
77 Mr Kenny I just asked that you take the draft sentencing remarks from the interpreter to provide to my Associate. Thank you.
78 MR KENNY: Thank you Your Honour, I am grateful for - - -.
79 HER HONOUR: No, that is good. All right we can adjourn. Thank you, Ms Malobabic.
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