Director of Public Prosecutions v Thanh (a pseudonym)

[2019] VCC 1097

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICHARD THANH (a pseudonym)

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 July 2019
CASE MAY BE CITED AS:	DPP v Thanh (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1097

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Mandie
For the Accused	Mr R. van de Wiel QC
with	Mr T. Wallwork

HER HONOUR:

1Richard Thanh[1], you have pleaded guilty to one charge of indecent assault.  The offence occurred in the early hours of Sunday 21 June 2015.  The victim of that offence was a friend of yours, Sophie Sharp[2].  You and she had known each other through mutual friends since November 2014. 

[1] A pseudonym.

[2] A pseudonym.

2At the time, you were 41 years of age and she was 38.  You were involved in the hospitality industry, and at the time of these events, you were a shareholder in the Prudence Hotel[3] in St Kilda. 

[3] Name of location changed

3On Saturday 20 June 2015, Ms Sharp attended at the Prudence Hotel, where she made contact with you in order to obtain express entry.  Once she was inside, you organised access to the area where you were socialising with friends.  You, Ms Sharp and your friends were all consuming alcohol. 

4Between 1 and 2 am, you left the hotel with Ms Sharp and a friend of yours, Mr Samuel Bromilow,[4] and the three of you caught a taxi to your apartment. Once there, you all continued to consume alcohol.

[4] A pseudonym.

5At some point, you asked Ms Sharp if you could do a line of cocaine off her breast.  She agreed, undoing the top of her dress and exposing her left breast but keeping her nipple covered.  You asked her to uncover her nipple as well and to lay her head in Mr Bromilow's lap.  She agreed and then you put a line of cocaine on her breast; Mr Bromilow snorted it.  You then laid another line of cocaine on her breast, which you then snorted and you licked her nipple.  This was all consensual activity.

6You then sat on the couch with Ms Sharp's legs over you before asking if you could do a line of cocaine off her stomach.  She again agreed and you lifted her dress and pulled her underwear down to her knees.   You then placed cocaine on her lower stomach area and snorted it.  You then placed another line of cocaine on her stomach area and again, Mr Bromilow snorted it.  You then gave Ms Sharp some cocaine and she snorted it off a plate using a $100 bill that you gave her.

7A phone call was received from another friend, Spencer Bleakley,[5] complaining that he had been left at the Prudence Hotel.  After the phone call, Ms Sharp pulled her underwear up and buttoned her dress.  While she got dressed, you then poured shots of vodka, which you all drank.  Ms Sharp had a shot of vodka and then some more vodka directly from the chilled bottle.  You and she then kissed and then she did so with Mr Bromilow. 

[5] Pseudonym used

8Sometime between 2 and 3 am, Mr Bleakley arrived at the apartment.  He and
Mr Bromilow left a short time later.  When they left, Ms Sharp was lying on the couch.  You lifted up her dress and removed her underwear once more. 

9It is apparent from the material that at this point her state of intoxication was such that she was starting to deteriorate.  She says, and I accept, she felt as though she could not move and that she told you that she could not breathe and that she had weak heart.  Whether you heard, remembered or comprehended any comment she made, and how aware you were at that point of the extent of her deterioration is unclear, given your own intoxication.

10Believing you were not listening to her, she at some point asked you to ‘at least put a condom on’ or something similar.  She then said she started to feel sick.  She was unable to walk on her own at that time and so you helped her off the couch and into the bathroom, where she crashed into the shower screen and then vomited into the toilet.  You assisted her as she did so.  Clearly, at that point, you knew she was in an unwell state.

11You then helped her into your bedroom and lay her on her back and removed her shoes.  She says she was telling you that she could not breathe.  Whilst in the bedroom, you then lay on top of her and you touched her vagina by placing your finger on her labia but she pushed your hand away.  That was a clear indication by her of her lack of consent to sexual contact. 

12Despite this, and knowing her state, you took advantage of her at that point.  You were either aware she might not be consenting or gave no thought to whether she was consenting, and you proceeded to masturbate yourself and to ejaculate onto her body; that is the charge of indecent assault.

13You then got off the bed and got a blanket or towel and placed it over
Ms Sharp and then got under the doona yourself. 

14The following morning, Ms Sharp located her jacket and underwear in the lounge room near the couch.  She left your apartment and returned home.  She was unsteady on her feet and did not feel well.  She went to bed without having a shower.  At that stage, she was unable to disclose to anyone what had occurred.

15On 22 June 2015, she made a complaint to the police.  She was later medically examined with forensic samples collected.  On 25 June 2015, a pretext telephone call was made by her to you.  During that conversation, you denied any sexual assault of her, claiming that you had a girlfriend and you would not behave like that in her absence. 

16On 26 June 2015, you participated in a record of interview, providing a full account of the events of Saturday 20 and Sunday 21 June 2015.  You did not, however, admit to the behaviour to which you now plead guilty. 

17When the forensic samples were tested and profiled, your semen was found in the front of the crotch area of Ms Sharp's underpants.  Even after those results were put to you in a second record of interview, you did not admit your indecent assault of her.  I understand, of course, that the records of interview were concerning more serious allegations of rape. 

18Ms Sharp was your friend; she trusted you and you breached that trust.  Regardless of her state of intoxication, she was entitled to her safety in your company, in particular, given your friendship.  If you were in any doubt about how intoxicated she was, the fact that you had to assist her to the bathroom, and while she crashed into the shower screen and then vomited, should have told you she was not in any state to give free consent to ongoing sexual activity.

19The fact that you had consumed alcohol and cocaine offers no shield to you.  Be clear, neither these courts, nor the community accept intoxication as any excuse for your behaviour; it does not permit of sexual offending. 

20The impact of your offence against her has been real.  I have listened to and re-read her victim impact statement; it is a reflection of the immediate confusion and trauma she experienced and the ongoing difficulties these events have caused her. 

21Sentencing principles of denunciation and general deterrence are at the forefront of considerations in a matter such as this.  That is, on behalf of the community, the court must denounce this type of behaviour and must impose a sentence which deters others from behaving in this way.  The potent combination of drugs and alcohol and sexualised behaviour does not relieve people of their personal responsibility. 

22You are a man, however, without sexual offending history.  From all of the material I have read, I can comfortably conclude this offence was an out of character aberration.  To that end, specific deterrence in your case does not need to play a central role. 

23Your only prior matter of any criminal offending was from 2012, where you pleaded to possession of cocaine.  You received an undertaking to be of good behaviour, with which you complied.

24Your other history is all positive.  I have received reports from psychologist,
Dr Mathew Barth, which detail your personal history.  In short summary, that is as follows. 

25You were born in Vietnam, the older of two sons.  You childhood was positive.  Your father was a judge in Vietnam and your mother, a medical professional.  You migrated to Australia with your mother and younger brother in 1980 and your father followed in 1990.  You mother undertook studies in medicine and is a doctor; she has her own practice in Melbourne.  Given your mother's commitment to her studies, your grandmother was also involved in your upbringing.

26You grew up in a Coburg and Pascoe Vale areas.  You parents separated when you were 18 years old, however, it was amicable.  You continued to have regular contact with your family and they remain an integral part of your life.

27You completed your schooling at St Joseph's Secondary College in Pascoe Vale.  You have apparently inherited your parent's intelligence and work ethic, performing very well academically and subsequently completing a double degree in Business and Accounting at the University of Melbourne.  You then worked for your mother's medical clinic as a practice manager. 

28For a number of years, you have been engaged in the hospitality industry, including being a part owner in several restaurants and clubs in the Melbourne area.  In a number of instances, you have been the face of those businesses, heavily involved in their marketing and promotional aspects.  This business activity was clearly a significant part of your life during at least your 30s. 

29On being charged over these events, you were immediately excluded from renewal of your liquor licence of the Prudence Hotel and other licenced premises with which you were involved.  This had the impact of compelling you to relinquish managerial control of the Prudence Hotel, a place for which you had previously been the main promoter. 

30Apparently, without your input, that business is now in a parlous financial state, which is a source of some personal concern and regret to you, and also a source of negative financial impact on you and others.

31To this end, I accept that your exclusion from that business and other business activities before proof of the offending now before the court has been a source of extra curial punishment. 

32This offence is now four years old, having occurred on 21 June 2015.  Resolution of the charges has been a long process.  The chronology, in some more detail is as follows.

33As outlined, the offence was promptly reported to police and you were interviewed within days.  Understandably, police waited on forensic results.  However, those were available prior to your second interview on
2 February 2016.  Despite that evidence, you were not charged until almost 12 months later on 11 January 2017. 

34Despite your initial denials of sexual behaviour, soon after being charged, on
13 April 2017, you offered a plea of guilty to the charge which is now before me.  That was rejected and the matter then proceeded through the Magistrates' Court to a committal hearing on 4 December 2017.  Your offer of a plea of guilty was reiterated on that date prior to evidence being called.

35The matter then proceeded to this court with a trial originally listed in
November 2018.  Your plea offer was renewed in October 2018 and eventually accepted, with resolution reached and an arraignment on 7 November 2018. 

36Unfortunately, factual matters in dispute meant the matter did not proceed when listed as a plea on 31 January of this year.  Those matters have now been resolved by way of oral submissions and I have made findings as indicated herein and during our discussion in the plea hearing yesterday. 

37There has, however, been a long delay in reaching this final conclusion.  That delay has an impact not just on victims, but also on an offender.  Higher courts have considered delay in prosecution and its impact on sentencing.  They have held that delays are relevant on two bases, (1), in the anxiety and distress caused by the uncertainty of having serious allegations pending and; (2), delay is relevant where considerable efforts have been made towards rehabilitation in the meantime. 

38In circumstances where the delay is through no fault of an accused, those factors operate in mitigation of sentence and in favour of imposing a sentence which sees those rehabilitative efforts continue.

39Firstly, I note that the delay in resolving the matter is not through any fault of yours.  The prosecution accept that your plea of guilty is a plea given at the earliest opportunity.  Further, that had the matter resolved in this way at an earlier time, it could have been dealt with in the Magistrates' Court; those matters are important. 

40You plea of guilty is a significant matter and you are entitled to the benefit of that plea.  In your case, I am satisfied that it is a reflection of your true remorse for your offence.  That remorse is reflected in your comments reported by
Dr Barth.  In addition, you have confided in and discussed your matter at length with your fiancé and with those close to you.  Many of those confidants, a number of whom were present in court to support you yesterday, have attested to your expressions to them of your deep remorse, shame and regret about your behaviour during this event. 

41Most importantly, to my mind, you have expressed your empathy for
Ms Sharp and have acknowledged the impact of this offence on her. 
Dr Barth says that you stated, “It would be horrible for her, she didn't want it, I violated her.  The shame that I feel.  I apologise for my behaviour, I crossed the line”. 

42That is significant, as it demonstrates your insight into your own behaviour and the nature of sexual offending and its consequences.  Although Dr Barth, in his report, describes some limitations on your insight, he assessed you in December 2018 and I am satisfied that since that time, you have continued your reflection on these matters and your insight has deepened.

43I reach that conclusion based on the more recent testimonials, but also because your expressions of empathy and responsibility were repeated again to the Corrections officer who assessed you only yesterday.  She writes that you were "open, forthcoming and expansive in details regarding the circumstances of this offending".  She says throughout the assessment there was no point where you shifted blame to the victim or your peers and instead, you adopted full responsibility for your behaviour.

44Gaining insight is often said to be a most significant step towards rehabilitation.  In your case, I am confident your prospects of rehabilitation are excellent. 

45I have read a number of glowing testimonials written on your behalf.  Importantly, they are from people who have known you for many years, some for many decades.  They talk with one voice, of a person who has a strong moral code, who is generous, kind and caring.  They refer to various instances where you have supported them through challenging times 

46Importantly, they talk about your respectful behaviour towards women and the fact that in spite of your many interactions with a huge variety of people via the hospitality industry, they have never observed you behave in any inappropriate fashion.  Further, and again in unison, they talk about how out of character this offence is and the enormous impact of the ongoing proceedings on you. 

47You are in a committed relationship and have been for a number of years.  You are engaged and will celebrate your marriage in November of this year. 
Dr Barth states, “Finally, Mr Thanh's solid intelligence, good work skills and positive support he enjoys from his family and close friends all provide a basis for some degree of optimism with regards to his rehabilitative prospect.” I agree with that opinion.

48Dr Barth opines that based on the assessment tools, you fall into a low to moderate risk of sexual reoffending.  However, with participation in a sex offender treatment program, that risk is likely to be reduced. 

49You reported to the Corrections assessor that you have significantly curbed your lifestyle since the time of this offence.  To that end, I have received urine screens which ban the period January to July of this year.  These have been voluntarily undertaken by you, they have been supervised, each one is negative for any illicit substances, and I am satisfied by your comments to Dr Barth that you have a firm resolution to remain abstinent from illicit substances; that is important.

50As I said, your one prior matter involved possession of cocaine and was dealt with by way of an undertaking in 2012.  I am satisfied your lifestyle has moved on from that date and the date of this offending.  In my view, you are a low risk of reoffending in any manner.  I have no doubt the lengthy period of time that this matter has hung over you has had its own very sobering effect. 

51You counsel submitted that a community correction order was the appropriate disposition.  The prosecution accepted that such a disposition was within range.  To that end, I have had you assessed for a community correction order and you have been found suitable as a result of that assessment.  Such an order, in my view, provides for all aspects of sentencing, namely, it provides, in this case, appropriate punishment, as well as providing for your positive prospects of rehabilitation. 

52Specifically, I will require you to undergo offence specific treatment, as well as treatment directed by the Office of Corrections towards any drug assessment and treatment.  That order means, of course, that although the legal proceedings are completed today, this matter will still hang over you for the period of that order. 

53Today, I sought submissions in relation to whether I should impose that order with or without conviction. That is a discretionary matter under s.8 of the Sentencing Act and I am mindful of the factors listed therein.  Specifically, in exercising my discretion, I should have regard to

54(a) the nature of the offence.  Any sexual offending is serous but, in my view, in all the circumstances and the context of this offence, it was at the lowest end of an indecent assault;

55(b), the character and past history of the offender, which I have outlined, is positive;

56(c), the impact of the recording of a conviction on the offender's economical social well-being or on his or her employment prospects.  As I have already outlined, the prospect of being found guilty of this matter immediately resulted in exclusions by way of the Liquor Licencing Act provisions.  Given your ongoing interest in and involvement in the hospitality industry, in my view, recording a conviction has the potential to have a significant impact on your future employment and your capacity to be involved in an industry which has occupied you for a number of years.

57Taking into account those considerations, as well as the matters that I have outlined, it is my view that it is appropriate to impose this community correction order without proceeding to record a conviction. 

58On the one charge of indecent assault, that matter is proven and I impose upon you a community correction order of 18 months. 

59The specific conditions of that order are these, that you complete 200 hours of unpaid community work, that you attend for drug assessment and treatment as the Office of Corrections direct you.  Further, that you undertake offence specific program, namely sex offender treatment program, as they will direct you.

60In relation to the hours of unpaid community work, I direct that hours you undergo by way of treatment can be offset against those hours, so up to 100 hours of the 200 hours of unpaid community work can be taken up by treatment, so I encourage you and that is your incentive to complete as much treatment as you are directed to do, so that that will come off your unpaid community work. 

61Mr Thanh, do you agree to undertaken that community correction order that I have outlined?

62OFFENDER:  Yes, Your Honour.

63HER HONOUR:  And do you understand that any breach, whether that is by failing to comply with the conditions of that order or by any reoffending, would bring you back to me and you would be open to be re-sentenced on this charge?

64OFFENDER:  Yes, Your Honour.

65HER HONOUR:  All right.  Have a seat there, I will have the order printed out and you will sign it.  Any matters to raise, counsel?

66COUNSEL:  No, Your Honour.

67HER HONOUR:  So, Mr Thanh, your signature on that order is your promise to complete that correction order that I have imposed; you understand that?

68OFFENDER:  Yes, Your Honour.

69HER HONOUR:  All right, thanks very much.  And then you will see on that order, and you will be given a copy before you leave, that there are a number of mandatory conditions as well as those that I have outlined to you, one of those is that you report to the office of Corrections within two working days, all right?

70OFFENDER:  Can I do that on Monday?

71HER HONOUR:  Yes.  All right, thanks very much, counsel. 

72COUNSEL:  As Your Honour pleases.

73HER HONOUR:  All right, thank you.  Thank you.

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