Director of Public Prosecutions v Thu (a pseudonym)
[2020] VCC 1577
•30 September 2020
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted (Not) Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-19-00155
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL THU (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE DAWES |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 August 2020 |
DATE OF SENTENCE: | 30 September 2020 |
CASE MAY BE CITED AS: | DPP v Thu (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1577 |
REASONS FOR SENTENCE
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Subject: Criminal Law - Sentence
Catchwords: Indecent act with child under 16, incest, indecent assault.
Legislation Cited:
Cases Cited: Astbury v The Queen ([No 2) [2020] VSCA 158; DPP v Polat(A Pseudonym) [2020] VSCA 174.
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms B. Goding (For Plea) Ms P. Thorp (For Sentence) | Ms H. Devanny, Solicitor for Public Prosecutions |
For the Accused | Mr J. Taaffe | Doogue & George Defence Lawyers |
HER HONOUR:
1Daniel Thu[1], you have pleaded guilty to three charges:
(i)Between 18 October 1996 and 6 April 1999, you committed an indecent act with a child under the age of 16. Charge 1 is a rolled-up charge, where you touched the victim's vagina and took her hand, placing it on your penis. A rolled-up charge is a collection of identifiable charges, bundled together in a single charge. In this case, it relates to similar offending that occurred on different occasions during a 2 and a half year period. The maximum penalty is 10 years imprisonment.
(ii) Between 18 October 1996 and 17 October 2001, you committed incest by taking part in an act of sexual penetration with the victim, introducing your finger into her vagina. This is a course of conduct charge, being a single charge incorporating multiple incidents that occurred on a regular basis over a 5-year period. The maximum penalty is 20 years imprisonment.
(iii) Between 16 April 1999 and 17 October 2001, you committed an indecent assault, where you licked and kissed the victim on her vagina. This is a representative charge, where there were 2 other instances of the same offence committed on other occasions, during a period of 2 and a half years. The charge places the offending into context. It cannot be said that this offending was isolated. The maximum penalty for this offence is 10 years imprisonment.
[1] A pseudonym.
2You were born in January 1958 and were 38 - 43 years old at the time of your offending.
3You and your wife have two children, an older son and the victim, who is your biological daughter.
4The victim was born in October 1983 and was aged between 13 - 17 years at the relevant time.
5You came to Australia from Vietnam in 1983. Your wife and children arrived in 1989, when the victim was six years old.
6You purchased a house in West Sunshine in 1992 and the offending commenced when you were living there.
7The summary of prosecution opening has been tendered (Exhibit A) and is agreed to be an accurate account of events. It includes references to other misconduct evidence that is not covered by the indictment. This evidence is part of the narrative and places the charged acts into context. A general summary of the facts is as follows.
8On Saturday or Sunday mornings, when you were living in the first house in Sunshine, you went into the victim's bedroom and got into bed with her. When this first happened, you would cuddle the victim. Your behaviour soon progressed to touching her body under her clothes. You would touch her breasts and with your hands, play with her vagina. When you did this, you would have your arm and leg over her, using your right leg to part her legs. On some occasions, you took the victim's hand and placed it onto your penis. Sometimes, you would hold her hand on your penis in order to masturbate you.
9The victim recalls an occasion where you touched her, placing your hand over her vagina and whispering to her, before taking her hand and putting it on your penis under your tracksuit pants (Charge 1).
10While living at the first house, your offending escalated to the digital penetration of the victim's vagina, the subject of charge 2. You would stroke the victim's vagina, before digitally penetrating her. The victim recalls one occasion when she was 13 years old. You got into bed with her and touched her body, before putting her hand on your penis, then inserting your finger into her vagina and moving it in and out. The following day, the victim was bleeding from the vagina. She thought that she may have been getting her period and told you and her mother about it. Your wife recalls taking her to the doctor regarding the bleeding, which lasted for one day. The victim did not get her period until several years after this incident.
11The sexual abuse occurred at this address on a regular basis, on more than 10 occasions. Your daughter felt disgusted when you touched her and ashamed of herself. She did not tell anyone about your offending at the time as she wanted to pretend that she still had a family and that it was not happening.
12In 1999, your family moved to the second house in Sunshine. You continued to sexually abuse your daughter on Saturday or Sunday mornings, coming into her bedroom to wake her up, as you had done in the past. The victim was 16 years old and more physically mature. You touched the victim's breasts and vagina more frequently than you did when living at the first house. The number of incidents that occurred at this address is not clear. When you came into the victim's bedroom you would strip her, before touching her breasts and vagina. You would get into bed with her and hold her, by putting your arm and leg over her and using your leg to part her legs. You would then touch the victim's vagina, inserting your finger and putting her hand onto your penis, in order to masturbate you. The victim says that your penis would become erect (Charge 2).
13As the victim became more sexually mature, you would get on top of her and thrust your erect penis against her. You would push the victim's top up or remove her clothing. You would also remove your own pants or all your clothing. While on top of her, you would kiss her, putting your tongue into her mouth, which she described as “disgusting”.
14When living at the second house, you committed the offence of indecent assault. You pulled the victim's pants down, then licked and kissed her on the vagina. After this occurred, you later came back into her room and apologised, telling her not to tell her mother (Charge 3). You acted in this way on 2 other occasions.
15The victim recalls one occasion where you sexually offended against her, when the family was on holidays in Vietnam in 2001.
16In November 2009, the victim moved out of the family home. Soon after that, she disclosed to a friend that you had sexually abused her from when she was a child.
17On 8 November 2009, the victim reported to police at the Sunshine Police Station that she had been the victim of incest but did not make a formal complaint. She disclosed your offending to her housemate in December 2009 and then to her brother and his wife at the time.
18In 2010, she invited her brother and sister-in-law to attend one of her counselling sessions, where she told them that you had molested her.
19In 2017, the victim began a relationship and within a few months, she disclosed to her partner that you had sexually abused her from a young age.
20In the past, you have made admissions to your offending in a series of emails exchanged with the victim, although you attempted to justify or shift responsibility for your criminal behaviour.
21On 2 December 2009, the victim sent you an email, confirming that your sexual misconduct was the reason that she had moved out of the family home. In several responses, you asked the victim not to involve other family members and asked whether there was another way to deal with the situation.
22On 3 December 2009, you emailed the victim and apologised, saying that your offending was the “biggest mistake” of your life and that you would “regret it for life”. You admitted to your offending at both the first and second houses in Sunshine. You told her that you had “made a decision in a confused state and could not get out of it”. You then stated that you thought that exposing the victim to controlled sexual activities with you, was a learning process. Further, you said that you had the impression that the victim enjoyed it, which encouraged you to continue. You placed blame on the victim, saying that she was not a defenceless young girl. You stated that your intention was to ensure that the victim had enough sexual pleasure to hold her back, until she could exercise proper judgment.
23Finally, on 4 February 2010, you offered an apology for touching the victim when in Vietnam, although you said that you had done so in your sleep, without realising. You told the victim that she should have said “no” although she never did. You justified your conduct by saying that it had “become a habit”. You offered an apology, saying that although people might think you were “crazy”, “at least [you] did not have a daughter with a wrecked life”.
24Sometime after the victim had left home, you called a family meeting between yourself, your wife, your son and daughter-in-law, where you admitted that you had molested your daughter from when she was a child. The victim did not attend, as she did not want to see you.
25You said that you had been helping your daughter deal with her sexual needs and helping her with masturbation. You admitted that your conduct involved sexual touching, kissing her on the breasts and genitals and touching her body. You said that you acted in this way to prevent your daughter from going out, acting promiscuously and getting pregnant.
26On 27 February 2018, the victim reported the matter to the Sunshine Police. You were arrested and interviewed on 16 July 2018. You answered questions about your personal circumstances but elected to answer “no comment” to the allegations that were put to you in relation to the offending. You were charged by police and released on bail.
27The filing hearing took place on 20 July 2018.
28Your case was listed for a contested committal hearing at the Melbourne Magistrates' Court on 24 January 2019. It proceeded by way of a straight hand up brief with pleas of not guilty entered to the charges.
29On 25 January 2019, at the initial directions hearing in the County Court, your matter was listed for trial to commence on 16 March 2020.
30On 30 January 2020, the final directions hearing was administratively adjourned to allow resolution discussions between the parties to continue.
31On 12 February 2020, you were arraigned and pleaded guilty to the current indictment. Your trial was vacated and your bail extended until the plea hearing.
32A Victim Impact Statement, dated 2 August 2020, has been prepared by your daughter and read to the Court. The impact of your offending has been lifelong and significant. The sadness and emptiness that she continues to feel is overwhelming. She has been diagnosed with depression and had suicidal thoughts. She states, “You have destroyed me and I don't know if I'll ever be able to put the pieces back again.” She is “forever scarred” by your conduct. Your offending has left her ‘on her own’ as it has broken the family and she is now isolated.
33There is currently a restraining order over your interests in property that you own. It is anticipated that an application for compensation by the victim may follow these proceedings.
34You accept that objectively, your offending is extremely serious and your moral culpability is high. These offences occurred on many occasions over a prolonged period and involved a gross breach of trust. You accept that the gravity of your misconduct warrants the imposition of a term of imprisonment on each charge.
35It is difficult to reconcile your personal circumstances with your offending behaviour. In all other respects, you have worked tirelessly to achieve your goals in education, employment and after arriving in Australia, enabling your family to have a financial stable and productive life. You have no prior convictions.
36You were born into poverty in Vietnam in January 1958 as one of 8 children. Your father was a soldier and your mother resold goods at local markets to earn extra income. After attending primary school in your local area, you worked hard to achieve a position in the local public secondary school. After completing Year 9, you moved to live with your sister in Saigon, in order to access a better secondary education and to study in a more conducive environment.
37Your upbringing was significantly impacted by the Vietnam War. Your Year 12 graduation was delayed by the fall of Saigon and South Vietnam in 1975. Academically, you were successful and eventually, you completed Year 12. Rewarding educational or employment opportunities did not follow, however, as your father had been a solider in the South Vietnamese Army and you were precluded from accessing anything other than low level employment.
38You married your wife in 1980 and your son was born in 1981. You fled Vietnam by boat in 1983. Your wife and son could not accompany you, so you travelled to Malaysia alone before resettling in Australia in 1983. At the time you left, your wife was pregnant with the victim in this matter.
39During the period of separation from your family, you established yourself in Australia and provided financial support to those in Vietnam. You worked as a farm labourer while completing an English course and then completed a Degree in Electronics and Communication Engineering at RMIT. While undertaking your tertiary education, you also worked part time.
40After completing your degree, you gained employment at Monash University as a lab technician before moving to Vic Health in 1995, working as an IT technician. You remained working in an expanding IT department at Vic Health for 25 years. When you retired in January 2020, you received a certificate of appreciation, acknowledging your successful career. You were highly regarded by your colleagues.
41You have been the primary income earner in your family. Character references provided by your wife and son confirm that you have always worked hard and been devoted to ensuring that you have provided financial stability for your family.
42It is somewhat ironic that at the same time you pursued professional development and familial stability, you were also offending against your daughter, a child who was in your care and dependent on you.
43There is no suggestion that your offending was motivated by substance abuse, excessive alcohol use or any other behavioural or medical problems. In a letter to the court from your general practitioner, Dr Vu Le states that in October 2019, you were diagnosed with severe obstructive sleep apnoea and that you are currently receiving daily CPAP treatment.
44At the request of your solicitor, you participated in an assessment with psychologist Dr Matthew Barth. In his report dated 21 July 2020, he stated that there is no indication that you have any form of thought disorder, psychosis or cognitive decline. Your intelligence falls within a normal range. Dr Barth is of the view that you are currently experiencing symptoms of a moderate level of depression and anxiety. Your thought processes are normal. You are not psychotic.
45When discussing your offending, you stated to Dr Barth that your daughter had approached you with the intention of participating in sexual activity with you and that your perception was that she was a willing participant.
46Dr Barth said that while you were able to show some insight into the ‘grossly distorted’ nature of these thoughts, your understanding of the ‘noxious impact’ of sexual abuse on children remains superficial.
47You perceived that your daughter was sufficiently mature to engage in sexual contact, which motivated and justified your sexual offending. Dr Barth stated that this allowed you to overcome the fact that she was underage and the taboos of incest.
48In Dr Barth's opinion, you tend to confuse familial affection with erotic attraction. You were unclear about interpersonal boundaries within family contexts. These dysfunctional attitudes formed the basis for ‘offence supporting cognitions’ and combined to underpin your offending against your daughter.
49You expressed guilt to Dr Barth for your offending, although your insight is still under-developed and your treatment incomplete. Dr Barth states that it is imperative that you complete a specialist sex offender treatment program at the earliest opportunity.
50Dr Barth is aware that you have already participated in sex-offender treatment. It appears that you have found the treatment process very challenging and your progress has been slow. Considerable therapeutic work is required in order to gain a more detailed understanding of your behaviour.
51When evaluating your overall risk of sexual recidivism, your risk of reoffending was found to be a low to moderate risk, most relevantly within an intrafamilial context. Dr Barth believes that the risk could be reduced by the continuation of appropriate specialist treatment together with supervision and support.
52In a report prepared for the Court by forensic counsellor Mr Geffrey Burrows, dated 27 July 2020, he confirms that you have voluntarily participated in 25 sessions of a sex offender treatment program, between 31 May 2019 and 17 July 2020.
53Mr Burrows states that your treatment to gain insight into your offending behaviour was a challenging process as you were reluctant to acknowledge any sexual motivation for your offending behaviour. He described your engagement with this phase of treatment as being “rather superficial”. Further intervention is required to allow you to develop insight into your conduct.
54While you expressed remorse for your offending, you demonstrated a limited understanding of the destructive impact of incest and child sexual abuse. Your misguided belief that the victim was capable of consenting to this type of sexual contact was relied on to justify your offending. Mr Burrows states that you found it difficult to restructure your offence-supporting cognitions and made slow progress towards improving your understanding of the destructive impact of your conduct. Further intervention is required to comprehensively address this issue.
55In Mr Burrows' view, interpersonal deficits were also revealed to have contributed to your offending and as a result of treatment you have begun to improve your application of appropriate interpersonal boundaries.
56Relapse prevention planning was introduced to assist you in developing strategies to reduce your risk of reoffending. Further treatment is required in this regard as well.
57In summary, Mr Burrows' view is that you have made relatively slow progress in the sex offenders treatment program. He states:
“He is still developing insight into his offending behaviour and continues to have some degree of difficulty in comprehensively restructuring his offence-supporting cognitions. Further intervention is required for him to continue this progress and address his significant interpersonal and sexual issues.”
58It is difficult to assess the weight of your remorse. There is evidence that you have taken responsibility for your conduct and made efforts to address the reasons for your offending. You expressed remorse to Dr Barth and Mr Burrows during your psychological assessment and treatment. You also expressed remorse to your daughter, in the email exchange in December 2009. Your family members write that you express regret for your behaviour and acknowledge the shame you have brought upon the family. You accept that your relationship with your daughter is destroyed and that you face significant consequences for your criminal conduct. The prosecution accepts that there is also evidence of remorse in your plea of guilty.
59However, your Counsel has, in my view accurately described your remorse as “imperfect”. Your treatment has disclosed that your understanding of your criminal conduct is underdeveloped and your engagement with some parts of treatment has been described as “superficial”. You attempted to justify your conduct in the email exchange with your daughter. Regrettably, you are yet to develop insight into your offending, although you understand the predicament that has resulted from it.
60It is conceded by you that the weight to be given to your remorse is undermined. In my view, it should be moderated as it appears that you do not recognise the seriousness of your offending.
61Your plea of guilty has a significant utilitarian benefit. You have saved the Court and the community the time and expense of running a trial. You have spared the complainant and other members of your family the ordeal of giving evidence. In those circumstances, you have facilitated the efficient administration of justice and are entitled to a benefit for that.
62Extensive negotiations were undertaken between the parties in order to resolve this matter. Notwithstanding that your plea of guilty was not an early one, it is still a significant factor, particularly in the current environment where jury trials are not proceeding in light of the COVID-19 pandemic. It also demonstrates an acceptance of responsibility for your offending conduct.
63Your offending ceased in October 2001. You have not been charged with any other offences since that time. The disclosure of your conduct was first made at the end of 2009, although charges were not laid until July 2018. Your case has ultimately resolved and will be finalised today, 30 September 2020. This does not amount to a substantial delay. While you do bear some responsibility for the time it took to ultimately resolve the charges, I accept that an inevitable lengthy term of imprisonment has been hanging over your head for some time.
64You are now 62 years old and have no criminal history. You have successfully complied with an undertaking of bail, while awaiting the hearing of this matter. You will be the subject of supervisory orders upon your release from custody, including periods on parole and on the Sex Offender’s Register. I accept that you are likely to comply with these orders. Character references provided by your family confirm that they will continue to support you, as they do now. Notwithstanding your relatively slow progress on the sex offender’s treatment program and your “imperfect” expression of remorse, it appears that your prospects of rehabilitation are good in all the circumstances.
65I am aware that the measures taken by Corrections to deal with the COVID-19 pandemic will add to your hardship as a prisoner, particularly as this is your first time in custody. The prosecution concedes as much.
66When you are first taken into custody, you will be required to spend 14 days isolation, in quarantine. You are not currently able to receive personal visits which will increase the burden of your imprisonment.
67I accept that in the current environment, imprisonment will be more stressful for you than it would be if you were in the community. This is not only due to your personal position of confinement but also to the hardship you will undergo being absent from your family, especially knowing that your wife who relies heavily on you, is functioning in the community without your support.
68You are also likely to feel more vulnerable to the possibility of infection from the virus, in light of your incarceration. The Court of Appeal has recently acknowledged in Astbury v The Queen (No.2)[2] that these hardships justify a sentencing benefit.
[2] [2020] VSCA 158, [33].
69The seriousness of your offending has been conceded. You have repeatedly offended against the same victim, over a lengthy period. Your offending involved a significant breach of trust between a child and her father.
70Incest is an appalling crime. The victim was a vulnerable teenager. You took advantage of her vulnerability and youth when you committed these inappropriate sexual acts. She suffered the indignity of being the victim of your protracted offending. You had time to reflect on your offending conduct, yet chose to persist with it.
71These acts have had a profound effect upon your daughter and the harm you have caused continues to plague her. The offending usually occurred in the victim's bed, in her room, where she was entitled to feel safe. You destroyed her sense of security at a time when she was a vulnerable child who was in your care, living with you and wholly dependent on you.
72The Court of Appeal confirmed in DPP v Polat (A Pseudonym)[3] that when repeated offending occurs against the same victim over a lengthy period of time, whether this is characterised as persistent or recurrent offending, the latter offences can be viewed as becoming progressively more serious.
[3] [2020] VSCA 174.
73In light of the gravity of your conduct, a term of imprisonment on each charge is the only appropriate disposition. In that case, you are to be sentenced on Charge 3 as a serious sexual offender. While the principal of community protection is a relevant consideration for all charges, it becomes the principal purpose for which the sentence on Charge 3 is imposed. The prosecution do not, however, seek a disproportionate sentence in your case.
74I consider that general deterrence must be given significant weight in the sentencing process as must the factors of denunciation and punishment. While the sentence I impose will be long, I consider that I must also give specific deterrence some weight in the process, considering the number of times you offended against the victim. You are to be the subject of the Sex Offender’s Register for the mandatory period of life registration.
75I take into account the maximum penalties for each offence. I have considered the cases which have been referred to by the prosecution and defence and current sentencing practices. The principle of totality needs to be considered, in light of this being a course of criminal conduct. I have decided that there must be some, but not total, cumulation in the sentences I impose. I have endeavoured to tailor your sentence to ensure that it is proportionate to your criminal conduct overall.
76The maximum penalty for Charges 1 and 3 is the same, being 10 years imprisonment. I have imposed a higher sentence on Charge 1, in light of your regular misconduct over a period of 2 and a half years. You stand to be punished on Charge 3, a representative offence, being 1 count of criminal conduct within the context that this offending occurred on 2 other occasions.
77Mr Thu, would you please stand?
78Balancing these factors as best I can, I sentence you as follows:
79Charge 1, you are convicted and sentenced to 3 years imprisonment.
80Charge 2, you are convicted and sentenced to 6 years and 6 months' imprisonment.
81Charge 3, you are convicted and sentenced to two years and six months' imprisonment.
82I direct that Charge 2 be the base sentence. I direct that 1 year and 2 months of the sentence imposed on Charge 1 and 10 months of the sentence imposed on Charge 3 be served cumulatively upon each other and upon the base sentence.
83The total effective sentence is 8 years and 6 months' imprisonment.
84I direct that you be eligible for parole after 5 years and 9 months.
85The record reflects that you have not served any pre-sentence detention.
86I direct that you be placed on the Sex Offender’s Register for life.
87You are sentenced as a serious sexual offender on Charge 3.
88The declaration I make under s.6AAA is had the matter not proceeded as a plea of guilty, I would have imposed a sentence of 10 years and 6 months with a non-parole period of 8 years.
89Mr Taaffe, your client will need to sign the Sex Offender’s Register material, would you mind assisting my associate with that?
90MR TAAFFE: Yes, Your Honour.
91HER HONOUR: Thank you.
92Ms Thorp, are there any other orders sought?
93MS THORP: No, Your Honour.
94HER HONOUR: Mr Taaffe, we need a copy to be given to your client before he's excused. You can have a seat for a moment, Mr Thu.
95MR TAAFFE: Your Honour, may I just approach him about the 6AAA, just to explain that to him?
96HER HONOUR: Certainly.
97Thank you. You can remove Mr Thu.
98Thank you, Ms Thorp and Mr Taaffe.
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