Director of Public Prosecutions v Ton

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00437

DIRECTOR OF PUBLIC PROSECUTIONS

THAT HUE TON

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JUDGE:	Her Honour Judge Ellis
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2022
DATE OF SENTENCE:	4 October 2022
CASE MAY BE CITED AS:	DPP v Ton
MEDIUM NEUTRAL CITATION:	[2022] VCC 1700

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords:              one charge of attempted rape- plea of guilty- limited prior criminal history- good prospects of rehabilitation- physical illness of offender- deteriorating eyesight- application of limbs 5 and 6 of Verdins
Legislation Cited:      Crimes Act 1958, Sentencing Act 1991,
Cases Cited:R v Verdins (2007) 16 VR 269, Worboyes v R [2021] VSCA 169, DPP v Park [2019] VCC 372
Sentence:                  A term of imprisonment for a period of 2 years and 5 months. Non-parole period of 20 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. McCowan	Office of Public Prosecutions
For the Accused	Mr H. Moodie Mr J. McGarvie (Sentence)	Stary Norton Halphen

HER HONOUR:

That Hue Ton, you have pleaded guilty to
·one charge of attempted rape contrary to section 321M and section 38(1) of the Crimes Act 1958, which carries a maximum penalty of 20 years imprisonment.

Circumstances of Offending

The circumstances of your offending are set out in a Summary of Prosecution Opening, tendered as Exhibit A on the plea.
The offending occurred in May 2021 when you were 61 years old. At the time of the offending you were residing in a share house. The residence was privately owned and managed by Hai Lim.[1] The house consisted of three privately rented separate bedrooms, a bathroom and several living areas. You had been living there since 1 October 2020.
[1] A pseudonym.
The complainant, 27-year-old Sarah Van[2] rented another bedroom and had lived at the residence since 2019. There was also a third resident living at the premises, who was aged 75.
[2] A pseudonym.
You and the complainant had minimal interactions with each other. Ms Van described you as pleasant to live with and someone with whom she’d had no previous issues. The two of you never shared any type of intimate relationship.
On 27 May 2021 at approximately 5:30am, the complainant was lying in her bed in her bedroom. The bedroom door was left slightly ajar because the door was not closing properly. The complainant was woken by you walking through the door and into her bedroom. You said to the complainant, “It’s so cold, can I sleep with you?” The complainant replied “no.”
Ms Van immediately got out of bed and attempted to leave the bedroom as you entered the room. You pushed her back onto her bed with two hands and partially closed the door behind you. You then moved onto the bed and positioned yourself on top of the complainant. You pinned her hands down by forcing her wrist against the mattress. Ms Van attempted to kick you away but was overpowered by you putting your entire body weight on top of her. The complainant, who weighed 35kg, began screaming for help and tried to use whatever force she had to get you off her.
Whilst on top of the complainant, you pulled her pants and underwear down to her knees. You pushed your hand between her legs, and Ms Van resisted pushing her legs together to prevent you from touching her vagina. You touched the outer part of her vulva with your hand. It is not alleged that you sexually penetrated the complainant’s vagina. You were kissing the complainant’s lips and cheeks as you touched over her vagina. She continually moved her face away from yours to prevent you from kissing her. This resulted in the complainant receiving small cuts to her left upper lip from your facial hair. Throughout the entire incident she told you to stop and screamed out for help.
The complainant was able to reach her mobile phone and call Hai Lim, who answered and heard Ms Van screaming for help in Vietnamese. Ms Lim then got out of bed and ran to the residence which was approximately five minutes from her house.
A neighbour heard the complainant’s screams for help from inside his house, and approached the residence, knocking on the front door. He was let inside by your housemate and the two of them discussed calling emergency services. Your neighbour approached the complainant’s room and observed you laying partially on top of Ms Van. He asked if emergency services were required to which you replied, “Close the door” several times. Your neighbour heard the complainant continued to call out, “help me”. He retreated to the lounge room.
You stopped a short time later and the complainant was able to get away from you and leave the bedroom. She was visibly upset and walked out the front door and towards the street where she was met by Ms Lim. You returned to your bedroom. Meanwhile the complainant and Ms Lim were picked up by the property owner. Your neighbour called 000 but hung up whilst speaking with the operator.
During the same morning the complainant spoke with Ms Lim about the incident and asked her to remove you from the residence. Ms Lim then contacted you on your mobile and asked you what happened. You told her you had gone into the complainant’s room to sleep because you were cold and you hadn’t been with a woman in a long time.
Ms Lim attended at the residence at 12pm with the complainant and another friend. The three of them sat down with you in the kitchen to discuss what had occurred. You told them that you hadn’t been with a woman in a long time and just wanted to lay down with the complainant because it was cold. Ms Lim asked you to leave the premises by 5pm that day and the locks were changed so that you could not return. You did return at 10pm that night purporting to require your medication. You were permitted entry. The complainant was present but you failed to leave after retrieving the medication.
Police attended at approximately 11:00PM and spoke to the complainant who was outside. You were arrested and conveyed to Sunshine Police Station where you participated in a record of interview. You largely gave a ‘no comment’ interview and when asked what happened the previous morning you stated, “can’t remember.”

Victim Impact

No victim impact statement has been prepared in this matter.

Procedural History

Following your arrest, you were remanded into custody and charged on 27 May 2021. The matter resolved on 25 February 2022, following a number of committal mention hearings and in response to an offer put forward on your behalf in January 2022. You were committed to this court on 20 March 2022 and a plea hearing took place on 20 September 2022.

Prior Criminal History

You have admitted to prior criminal matters. The first is from 2008 involving charges of theft and obtain property by deception for which you received a conviction, a fine and you were placed on a six-month adjourned undertaking. Your second and last appearance was in May 2014 for a charge of drive whilst authorisation suspended.

Personal Circumstances

Your personal circumstances were set out in written plea submissions and articulated further by your counsel, Mr Moodie during the plea hearing. You were born in Vietnam in May 1960 and you are now 62 years old. You left Vietnam as a refugee when you were aged 17 or 18, travelling by boat to Malaysia before migrating to Australia with your family.
In Australia, you finished your schooling to Year 12, and as a mature student completed a degree in mathematics and computer science. You worked in several jobs including as a clerk and as a courier driver. You have two brothers who are supportive of you and both attended the plea hearing online.
When you were in your 30s you married. You and your wife had two sons together who are now aged 22 and 29 years. However, you divorced approximately 10 to 15 years ago and you have not spoken with your wife for five years. You still have contact with your sons. After your divorce you began to experience isolation and a loss of purpose. According to your brother, Chuong Ton, who prepared a character reference for you, your divorce had a significant impact on you. You suffered financial hardship, stress, homelessness and loneliness. You stopped working and your health deteriorated. In recent years you are said to have lived a solitary and quiet life. You resided in share accommodation and helped care for your mother who is now 101 years old. Currently, your siblings assist with your mother’s care.
Significantly, you suffer from end stage glaucoma, an eye disease which results in damage to the optic nerve. Gradually you have lost most of your eyesight and have been in receipt of the disability pension as you are no longer able to work. You have been receiving treatment whilst in custody from the Royal Victorian Eye and Ear Hospital. Tendered on your plea were two letters from ophthalmologist, Dr Jonathan Ruddle dated 1 March 2022 and 24 May 2022 (Exhibit 3). According to those letters, you have no useful vision in your left eye and this condition is irreversible. The vision in your right eye has been steadily decreasing despite treatment with the maximum dosage of medication and laser surgery.
In June 2022 you underwent a trabeculectomy, a surgical procedure that drains fluid from the eye to reduce pressure, designed to decrease the risk of further damage to the optic nerve. Since you have been in custody, your eyesight has deteriorated significantly. You were not seen by an eye and ear specialist until February 2022 and there were delays with you receiving treatment.
The delays in your treatment have caused you significant anxiety as your eyesight has declined. It has been difficult for you to receive treatment because you have been unable to complete relevant forms, you have been moved between the Metropolitan Remand Centre and Hopkins Correctional Facility and each time you have had to learn how to navigate the process of seeking medical attention in each of those facilities. Added to this, your treatment has been delayed because of the effects of COVID-19. Various appointments and operations had to be rescheduled. You have been taken to the eye and ear hospital approximately eight times since you have been in custody. Each time you have returned to the prison from hospital, you have been forced to undergo a period of isolation in quarantine.
Due to your rapidly deteriorating eyesight you are no longer able to watch television or read. You can no longer recognise people or see food when you are eating. You cannot write legibly and you need assistance to fill in paperwork. You struggle to walk unless the area is well lit, and as a consequence you frequently stumble on unexpected steps and find it extremely challenging to walk after dark. You have requested a walking stick from Hopkins correctional facility to assist you to move around after dark.
As a consequence of your declining vision you have become preoccupied with receiving treatment and this has led to significant anxiety as you contemplate a future with extremely limited vision. Not only that but because of frequent periods in isolation when you return from hospital visits, your anxiety has increased further. When interviewed by forensic psychiatrist Dr Nicholas Owens, who conducted a psychiatric assessment of you, you told him you felt hopeless about your future. At the time you were in isolation and you were in your cell all day with the exception of a 15 minute period outside. You are now fearful of being in hospital and further the associated periods of isolation. You have experienced suicidal thoughts.
I accept that as a consequence of your physical illness your experience in custody has been more burdensome than on an offender in good health. There are limited things you can do whilst in custody, you require assistance for simple tasks such as writing and as a result, your communication with prison authorities to request medication or medical attention is cumbersome. Your visits to the eye and ear hospital are accompanied by periods of forced isolation in quarantine, and meanwhile you have the anxiety associated with having deteriorating eyesight and the uncertainty of the future. I take this matter into account and give it considerable weight.
Furthermore I accept that your physical health has led to a degradation of your mental health. Dr Owens notes that you have some symptoms of depression which he believes are secondary to your current circumstances namely prolonged solitary confinement and progressively deteriorating blindness. However, he does not consider that you satisfy the criteria for a major depressive disorder. He considers it more likely that you satisfy the criteria for an adjustment disorder with depressed mood. In Dr Owens’ view your adjustment disorder would be likely to both adversely affect your ability to cope with custody and to deteriorate as a result of ongoing time in custody.
In light of this assessment, your Counsel has submitted that your adjustment disorder enlivens the principles established in R v Verdins[3] and that this should mitigate sentence. Specifically your Counsel submits that limbs 5 and 6 of Verdins are enlivened. Imprisonment weighs more heavily on you because of its effect on your mental health and there is a risk that your mental health will decline further as a consequence of your incarceration. Mr McCowan on behalf of the prosecution takes no issue with the submission that limbs five and six of Verdins are enlivened. I agree that Verdins principles have application in this way and I take these matters into account and give them considerable weight.
[3] (2007) 16 VR 269.
I also note that a further consequence of your incarceration during the COVID-19 pandemic is that you have been unable to have visitors. You have also missed out on seeing and caring for your mother in the last years of her life and as a result, this has placed an additional burden on your family.

Nature and Gravity of Offending

The offence of attempted rape is serious, and this is reflected in the maximum penalty applicable. Your offending here was serious. For some inexplicable reason you entered the room of your much younger housemate whilst she was in bed in the early hours of the morning. She was entitled to feel safe in her home and in her bed. Although there is no victim impact statement prepared, I have no doubt that this experience would have been extremely frightening and upsetting for Ms Van. The two of you had resided at the same premises for a period of time in which her interactions with you had hitherto been positive. One can only imagine the shock that the complainant experienced when you entered her room, forced her down onto the bed and used your weight to pin her down and pull down her pants. Ms Van, who was clearly of very small stature was required to fight back in order to keep you from penetrating her vagina.
You have violated her sense of safety, and you violated her person for a lengthy period of five minutes while you pinned her to the bed, ignoring her protests. Whilst I accept that there was no premeditation involved, and that this offending appears to be spur of the moment, there really is no explanation for your offending other than the one you have given, which was that you had not been with a woman for a long time. Your offending was brazen and you showed a callous disregard for your victim.
Sadly you appear to have limited insight as to the impact your offending must have had on the victim. Your statements to Dr Owens appear to be somewhat of a justification for your behaviour. You seemed more concerned as to the consequences for yourself than your victim. However, you recognised that you did the wrong thing, but said you didn’t know why you did it.
According to your brother, you are sorry and respect the fact that the victim has suffered. You are said to be sorry for her anguish, suffering and embarrassment. I accept that there is a degree of remorse for your behaviour and this is reflected in your plea of guilty.
You are said to be devastated by your own conduct which appears to be extremely out of character. Your brother has expressed his, and the rest of the family’s shock at your behaviour. Your mother is purportedly sad and anguished at what you have done. It does seem very unusual for a man of your age, with no relevant prior criminal history to force himself on a young and vulnerable woman in this way.

Prospects of Rehabilitation

Despite my concerns as to your level of insight, I do accept that you are remorseful. Furthermore you have no relevant prior criminal history and there is no suggestion that you have ever behaved in such a way before. Accordingly I consider that you have very good prospects of rehabilitation.

Plea of Guilty

I take into account your plea of guilty. I consider it to be a plea entered at the earliest opportunity. By pleading guilty you have spared the complainant and other witnesses from having to give evidence about this event. You have also spared the community and the courts from the time and expense of running a trial. Your plea indicates a willingness to facilitate the course of justice. It is also some evidence of remorse.
Your plea of guilty also has a further utilitarian value given that it was entered at a time when the courts have been afflicted by the COVID-19 pandemic which has resulted in the suspension of jury trials leading to a considerable backlog. Accordingly, as the Court of Appeal articulated in Worboyes v The Queen,[4] your guilty plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic’s effects. Your plea of guilty should result in a perceptible amelioration of sentence. You are entitled to a substantial discount in sentence both for the plea itself and taking into account that this plea has occurred during the pandemic.
[4] [2021] VSCA 169.

Relevant Sentencing Factors

I am required, pursuant to the Sentencing Act 1991, to take into account various factors when formulating an appropriate sentence in your case. These include the seriousness of the offence, your culpability, the effect of your offending on the victim and your personal circumstances. The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.
The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated. I am to have regard to protection of the community. I also have regard to principles of parsimony.

General and Specific Deterrence

General deterrence is an important sentencing consideration in sentencing you for these offences. Other members of the community must understand that sexual offences against women, such as sexual touching without their consent, indeed attempted rape, will not be tolerated.
Men who seek to prey upon vulnerable young women and those who behave violently and seek to force themselves sexually upon individuals who are not consenting must understand that this sort of conduct will be met with the courts condemnation. The sentence that I impose must not only deter you from committing similar offending in the future but it must deter others who might be inclined to conduct themselves in the same way.
As I have already noted you do not have a history of sexual violence and to that end, specific deterrence is of less significance. Nonetheless it is still relevant. Furthermore the sentence that I impose must reflect the courts denunciation of your behaviour and I must also have regard to the need to protect the community whilst imposing a sentence that is just in all of the circumstances.

I must also have regard to current sentencing practices. There appear to be very few comparable sentences having regard to the circumstances of this case. Your counsel has referred to the matter of DPP v Park[5], though the circumstances there are somewhat different to those for which you fall to be sentenced.
[5] [2019] VCC 372.
The prosecution submits, and your counsel concedes that a term of imprisonment is the only sentence that would appropriately reflect the gravity of this offending taking into account all the circumstances including your personal circumstances.
I have had regard to all of the matters raised on your behalf and given significant weight to your personal circumstances including your health, mental health, the absence of relevant prior criminal history coupled with your early plea of guilty and I have balanced these against the seriousness of the offending and the need for my sentence to address the relevant sentencing principles.

Sentence

Accordingly you will be sentenced as follows:
On the single charge of attempted rape you are convicted and sentenced to 2 years and 5 months in prison. I direct that you serve a minimum of 20 months before becoming eligible for parole.

Pre-Sentence Detention

Pursuant to s18 of the Sentencing Act 1991, I declare 495 days' pre-sentence detention as time already served to be deducted from the sentence that I have imposed.

s 6AAA

But for your plea of guilty, I would have sentenced to you to a term of imprisonment of 4 years with a non-parole period of 2 years and 10 months.

Ancillary Orders

I make the order for disposal in the terms sought by the prosecution which is not opposed.

[2022] VCC 1700

4 October 2022