Director of Public Prosecutions v Tran
[2019] VCC 556
•22 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| NGHIA QUANG TRAN |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 19, 20, 21, 24, 25, 26, 27 September and 1, 2, 3, 4 October 2018 | |
DATE OF PLEA: | 21 November 2018 | |
DATE OF SENTENCE: | 22 March 2019 | |
CASE MAY BE CITED AS: | DPP v Tran | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 556 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – sexual penetration of a child under the age of 16 (five charges)
Legislation Cited: Crimes Act 1958, s45(1); Crimes (Amendment) Act 2000; Sex Offenders Registration Act 2004, s31(1)(c); Sentencing Act 1991 (Vic)
Cases Cited:Smith v R [2013] VSCA 310; LQ v R [2011] VSCA 135; Ashley v R [2016] VSCA 246; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] ALJR 91
Sentence: Total effective sentence of nine years’ imprisonment with a non-parole period of seven years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R Pirrie | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr C Thomson | Greg Thomas Barrister & Solicitor |
HIS HONOUR:
1 Nghia Quang Tran, on 4 October 2018, you were convicted in the County Court of Victoria by a jury returning verdicts of guilty in respect of all five charges on Indictment No. H12725307. These verdicts consisted of five charges of sexual penetration of a child under 16 contrary to s45(1) of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 2000.
2 Your offending occurred between 1 September 2007 and 31 October 2008.
3 Charge 1 is that between 1 September 2007 and 30 June 2008, you took part in an act of sexual penetration with Thi Dang[1] (the complainant), a child under the age of 15 years, in that you introduced your fingers into her vagina.
[1] A pseudonym.
4 Charge 2 is that between 1 January 2008 and 31 October 2008, you took part in an act of sexual penetration with the complainant, a child under the age of 16 years, in that you introduced your penis into her vagina. There were alleged to be a number of unparticularised occasions which occurred in the bedroom of the complainant’s sister which were submitted to form context evidence of your offending.
5 Charge 3 is that between 1 January 2008 and 31 October 2008, you took part in an act of sexual penetration with the complainant, a child under the age of 16 years, in that you introduced your penis into her vagina after first applying Vaseline to the complainant.
6 Charge 4 is that on or about 30 October 2008, you took part in an act of sexual penetration with the complainant, a child under the age of 16 years, in that you introduced your tongue into her vagina.
7 Charge 5 is that on or about 30 October 2008, you took part in an act of sexual penetration with the complainant, a child under the age of 16 years, in that you introduced your penis into her vagina.
8 All charges were in contravention of s45(1) of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 2000.
9 The maximum penalty in respect of each of the five charges is ten years’ imprisonment.
10 The prosecution sought an order for the disposal of certain items of clothing. The making of that order was consented to.
11 If a sentence of imprisonment is imposed in relation to Charges 1 and 2, you fall to be sentenced as a serious sexual offender in respect of Charges 3, 4 and 5. In determining the length of the sentence of imprisonment to be imposed in respect of a serious sexual offender, the court must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed pursuant to s6D of the Sentencing Act 1991. The court may impose a disproportionate sentence for that purpose. In this case, the prosecution did not seek a disproportionate sentence for that purpose and the court has not sought to impose one for these charges.
12 In addition, pursuant to s6E of the Sentencing Act 1991, every term of imprisonment imposed by a court on a serious sexual offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on other sentences of imprisonment imposed on that offender.
Circumstances of offending
13 Your offending conduct, consistent with the jury’s verdict, can be summarised as follows.
14 The complainant, Thi Dang, was a 13-year-old female born in December 1994 in Vietnam and arrived in Australia in 2005. She was born with a mild intellectual disability and suffered from epilepsy. At the relevant time she was attending a suburban school. On arrival in Australia, the complainant moved into a residence in a Melbourne suburb with her sister, Huong Dang, who was then 25 years of age. Also living in the house for some time was her father, Minh Dang and his then wife, Kim.
15 At the relevant time you were a 48-year-old Vietnamese male, born 20 March 1962, and were employed as a cook at a suburban restaurant. You were a former work colleague of the complainant’s sister, Huong.
16 In late 2007, the four named family members took you in as a boarder to their home in a Melbourne suburb as a result of your then marriage failing. Soon after you moved into the residence, the father of the complainant’s stepmother took ill, resulting in both the complainant’s father Minh Dang and his wife Kim moving out of the residence in order to provide care to the wife’s elderly father.
17 Once the parents moved out of the house, you took advantage of the complainant when no other occupant was in the house or, alternatively, asleep in an adjacent bedroom. On the first occasion, you pushed the complainant onto a couch in the lounge room and removed her pants, asking “Do you have hair?” You then sucked her naked breast and inserted your fingers into her vagina. The complainant then ran from the couch and locked herself in the toilet. (Charge 1, sexual penetration of a child under 16).
18 On a second occasion, the complainant had exited the shower when you entered the bathroom and started to dry her. You then inserted your fingers into her vagina and asked her, “Are you happy?” This caused the complainant to feel a burning sensation in her vagina. (Charge 1, contextual evidence).
19 Shortly after these events, in 2008, you, the complainant and her sister, moved from this address to another address in another suburb. At these premises, the complainant slept on a fold-out bed in the lounge room. The two bedrooms were otherwise occupied, one by you and the other by the complainant’s sister.
20 Over the next 12 months you would wake the complainant at 6.00 am, telling her to get ready for school. On occasions you would remove the complainant’s pyjama pants and insert your penis into her vagina. Often you would put saliva on your fingers and rub them over the complainant’s vagina. (Charge 2, sexual penetration of a child under the age of 16 – the prosecution presents this as a single charged act. Other instances of such conduct were alleged to have occurred which has been submitted to be context evidence as to your offending).
21 On a particular occasion you put Vaseline on the complainant’s vagina before inserting your penis. On this occasion the complainant recalled observing a white discharge from her vagina. (Charge 3, sexual penetration of a child under the age of 16). You only fall to be sentenced with respect to the one instance alleged on the Indictment.
22 On other occasions, and particularly on 31 October 2008, you licked and/or inserted your tongue into the vagina of the complainant. These assaults are alleged to have occurred on multiple occasions. (Charge 4, sexual penetration of a child under the age of 16 – the prosecution presents this as a single act charge).
23 On Friday, 31 October 2008, you woke the complainant at 6.00 am. You removed her pants and inserted your tongue and thereafter your penis into her vagina. After concluding intercourse, you wiped the complainant’s vagina with your pants. (Charge 5, sexual penetration of a child under the age of 16).
24 On Saturday, 1 November 2008, the complainant reported the ongoing sexual assaults committed on her to her stepmother, which resulted in police intervention.
25 On 2 November 2008, the complainant, then aged 13, underwent a VARE recording with a police officer.
26 On Wednesday, 5 November 2008, you were arrested and a record of interview was conducted in relation to the matter. During this interview you denied all allegations put to you.
27 Thereafter, it was not until 2 August 2018 that you were brought before this court and bail was refused on these charges. You have been on remand since this time.
28 On 19 and 20 September 2018, the complainant recorded a special hearing, at which time she adopted the evidence contained in the VARE and was cross-examined by your counsel. The recording was played to the jury.
Victim Impact Statements
29 The complainant, Thi Dang, tendered a victim impact statement in which she stated:
“I suffered as I no longer trusted people. I was afraid of all Elders that were male. I was always looking to see where Nghia was as I believed he would get me for telling the police. I was 13 when this happened and I believed that all men treated girls like this causing pain. I am now 24 years old and I am in my first relationship as I didn’t socialise [when I was younger].
…
I feel very ashamed of myself. This crime changed my behaviour as a small child. I would get angry at my sister for no reason. I felt very scared and never wanted to be alone. This stopped me making friends as I always wanted to be with my sister. I would always lock the doors and was never feeing safe.
Nghia I believe used me and took my childhood. … I just wish he would have told the truth to save me having to relive this horrible thing.”
30 The complainant’s sister, Huong Dang, stated:
“When this happened to Thi, I blamed myself as I brought this man to my house. This caused me great suffering. I no longer trust men who I don’t know. This has affected my every day life.
I believe that I am very careful and consumed by watching everybody around my children and Thi. I am so paranoid that this has affected my relationship with my husband as we don’t go anywhere without Thi as I no longer trust people.”
Your personal circumstances
31 You were born in Tra Vinh in the Mekong Delta of South Vietnam on 20 March 1962. Your father was a truck driver who owned his own truck. Your mother ran a small business buying and selling rice. You had five brothers and three sisters.
32 When the Vietnam War ended in 1975, the new Communist government took over your father’s truck and your mother’s business. The family then had to work on a farm growing fruit and sugarcane. You had been in high school until the war ended but soon had to leave to join your family on the farm. Three of your brothers and one of your sisters fled Vietnam as refugees and settled in Sweden or the United States.
33 Eventually, you were accepted as a refugee by Australia and arrived here in January 1981. After learning some English, you worked in the Toyota factory for two years and then various metal fabrication factories for four years. After that, you worked as a kitchenhand or cook in restaurants in Footscray, Springvale and Richmond. In 2013, you started working at the Batunga Orchard near Warragul doing maintenance and supervising pickers. You have always worked full time since leaving school.
34 You still have two brothers and two sisters living in Vietnam. You returned to see them in 2007 but have not been back since. In 1985, you married and had two children, born in1989 and 1991. In 2002, you separated from your then wife and formed a relationship with another woman which ended in 2007. At this time, you moved in with the complainant’s family, as recorded above. You subsequently married another woman in 2009 but separated in 2013.
Factors in mitigation
35 On the plea, your counsel highlighted the fact that you have no prior or subsequent convictions. On this basis, it is submitted that these offences which occurred over a 12-month period, were out of character and opportunistic in their nature. It was further submitted that your relationship history and lack of convictions demonstrated that you were not essentially a paedophile. It was further submitted you do not have any psychiatric or psychological history and that your lack of subsequent offending demonstrated that the community did not need to be protected from possible future offending, and reduced the need for specific deterrence in this case. It was also submitted that you could have been charged directly after your record of interview and that the subsequent nine-year delay before your arrest could not be shown to be as a result of fault on your part. It is further submitted that this is demonstrative of your rehabilitation and the reduced need for specific deterrence and community protection.
36 It was further submitted that you have a good work history and the probability is that you would have no problem finding employment when released. Accordingly, it is submitted your prospects for rehabilitation are good.
37 It was further contended that your various manual occupations had caused you back pain for which you take medication. You were due to have a scan on your back two weeks after the plea. You had been unable to work in the prison because of this issue.
38 Finally, as you had no problems with alcohol or illegal drugs, it was contended that all these factors in mitigation should be weighed in the balance with the need to impose just punishment and taking into account general deterrence.
Sentencing considerations
39 In oral submissions on the plea, the prosecution contended that your offending was very serious and constituted a breach of trust in respect of a very young victim who at the time had a mental age of approximately five years and an IQ of 44.
40 Your counsel accepted that if you were sentenced to a term of imprisonment on Charges 1 and 2, you would be sentenced as a serious sexual offender in respect of the remaining charges. Your counsel submitted that totality should have a role to play in sentencing you on the charges on which you were sentenced as a serious sexual offender and that there should be substantial concurrency. I accept that the principles of totality apply and I believe that the periods of cumulation are moderate in the circumstances.
41 With respect to your prospects of rehabilitation, the matter is complicated by the fact that you had pleaded not guilty and there was no explanation for your offending or any basis for understanding your offending, nor has there been demonstrated any remorse. On the other hand, I accept that you have demonstrated a capacity for hard work and because of the absence of offending in the last ten years, you still have the capacity to be a decent contributing member of the community.
42 It was further contended that a shorter than otherwise non-parole period might be appropriate because of your age, the burdensome nature of prison due to your disability and your previous good character.
43 The prosecutor, in sentencing submissions, submitted that the seriousness of the offending, including the age disparity and the mental vulnerability of the complainant and the gross breach of trust, should be taken into account.
44 The prosecutor made reference to the context of the criminal behaviour over the approximate 12-month period. He submitted there was a high degree of planning and premeditation in the criminal activity. The complainant was told to not tell anyone. The behaviour was said to be repeatedly opportunistic, in the sense that it took place when the complainant’s protectors were not in the house or otherwise asleep. It was submitted that the only motive for the crimes was your own sexual gratification. It was submitted that it was clear enough that you were trusted by the sister and the father and they felt safe in being away from the house and leaving the complainant alone with you.
45 Although you may not have appreciated the full effect of the complainant’s epilepsy, I am prepared to infer that you were acutely aware of her significant intellectual disability and that you were prepared to take advantage of that fact.
46 It was further submitted that your callousness was amplified by you engaging in unprotected sexual activity without a condom, exposing the complainant to risks of pregnancy and possible sexually transmitted infections. The evidence with respect to this issue is somewhat vague at best and I have discounted the weight I would normally give for such a factor.
47 Although there is no specific evidence that the complainant was placed in your care by her sister or her father, it is clear enough from the surrounding circumstances that you were trusted not to adversely affect the complainant by virtue of the fact that the father and the sister were prepared to leave you alone with her for prolonged periods in the house.
48 Mr Tran, your offending is a serious example of a very serious type of offending. Your offending was a part of a course of conduct and occurred on a number of different occasions over a period of about 12 months. On balance, I consider your behaviour a breach of trust in respect of the complainant’s sister and father. You were living in the same house and were trusted by the complainant’s guardians not to act to her detriment. You took advantage of that trust. You were a very much older man who took terrible advantage of Thi Dang’s youth, innocence and trust in you. You exhorted her not to tell anybody about your activities, and that what you were showing her would enable her to act out with her own boyfriends in the future.
49 You sexually abused her for your own sexual gratification and compromised her youth and innocence such that it was quite some time before she was able to form a mature relationship such as she now enjoys. Your moral culpability is very high. The court presumes that this sort of offending causes immediate and ongoing harm to the victim and great alarm within the community generally. At this stage, Thi Dang and her sister appear to have been deeply affected but have shown considerable resilience. It is to be hoped that this will continue into the future.
50 Your offending must be strongly denounced. You deserve condign punishment for what you did. It is to be hoped that the prospect of such punishment will help to deter others from giving way to any thoughts of sexual activity with children.
51 You continued to deny your crimes right up until the time of verdict and have shown no remorse. Given your lack of prior criminal history, I am prepared to infer that you are unlikely to seek out children to offend against in the future but you nonetheless remain a risk of reoffending if you have the opportunity to have regular close contact with a female child. In the absence of any psychological information, I consider that specific deterrence must also be given some weight in sentencing you. It is to be hoped that a significant sentence will deter you from further offending.
52 A term of imprisonment is clearly warranted for the purposes of denunciation, just punishment, general deterrence and specific deterrence. You will be sentenced to a term of imprisonment in respect of Charges 1 and 2. Community protection is the principal sentencing consideration required under the Sentencing Act. I do not consider that a disproportionate sentence is required in order to achieve community protection and none has been sought by the prosecution.
53 As you are to be sentenced as a serious sexual offender, the sentences on Charges 3, 4 and 5 must be served cumulatively unless otherwise ordered. I consider that total cumulation would result in a sentence which would offend against the principles of totality and proportionality, and arguably also current sentencing practices.
54 Although the evidence presented suggests that the offending took place on many more occasions than those consisting of the five charges, you will only be sentenced in respect of the five individual charges.
55 I have taken into account in mitigation of sentence that you have no prior or subsequent criminal history and have been hardworking throughout your life. I have also taken into account that you are facing your first term of imprisonment at a relatively advanced age. Your age and health may make that experience somewhat more burdensome for you. Accordingly, I have sought to impose a sentence which is not crushing and which might allow for you to spend a substantial amount of your life in the community following sentencing.
56 Finally, I have had regard to the following cases in order to provide some guide to current sentencing practices:
(a) Smith v R [2013] VSCA 310 (complainant aged 14 – three-month period – digital, oral and penile penetration of a child under the age of 16 – five charges – sentencing of 18 months, four years, five years, four years, five years – six to 18 months’ cumulation – no prior convictions – no remorse – total effective sentence eight years six months with a non-parole period of six years);
(b) LQ v R [2011] VSCA 135 (briefly, the accused was an uncle by marriage – five counts of sexual penetration of a child under the age of 16 – total effective sentence nine years six months with a non-parole period of six years six months);
(c) Ashley v R [2016] VSCA 246 (complainant aged 13 to 14 – entrusted into care of accused – no remorse – cross-examination of the complainant – total effective sentence nine years with a non-parole period of six years.
57 It is of note that defence counsel did not otherwise provide the court with ‘yardstick’ cases following the plea.
58 I emphasise that all cases depend on their own facts and the current sentencing practices are but one of the matters to be taken into account in sentencing. (See Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] ALJR 91).
59 Please stand, Mr Tran.
60 On Charge 1, you are convicted and sentenced to 15 months’ imprisonment.
61 On Charge 2, you are convicted and sentenced to four years six months’ imprisonment.
62 On Charge 3, you are convicted and sentenced to three years six months’ imprisonment.
63 On Charge 4, you are convicted and sentenced to 15 months’ imprisonment.
64 On Charge 5, you are convicted and sentenced to three years six months’ imprisonment.
65 You are sentenced on Charges 3, 4 and 5 as a serious sexual offender.
66 The sentence on Charge 2 is the base sentence. Six months of the sentence on Charge 1 is to be served concurrently on the sentence on Charge 2. Eighteen months of the sentence on Charge 3, nine months of the sentence on Charge 4 and 18 months of the sentence on Charge 5 are to be served cumulatively with each other and the sentence on Charge 2. The total effective sentence is nine years’ imprisonment.
67 I fix six years nine months as the period you are required to serve before being eligible for release on parole.
68 I declare that you have served 541 days of this sentence by way of pre-sentence detention, not including today, and I direct that the term of imprisonment be deducted administratively from your total effective sentence.
69 You are regarded as having committed five Class 1 offences for the purposes of the Sex Offenders Registration Act 2004. You will be required to report as a registered sex offender for the remainder of your life. Shortly you will be given documentation which sets out your obligations under that Act. You will be asked to sign a piece of paper to say that you have received that material.
70 MR THOMSON: May I approach the dock to explain, Your Honour?
71 HIS HONOUR: Yes, you may. Thank you.
72 Anything further, counsel?
73 COUNSEL: No, Your Honour.
74 HIS HONOUR: You may remove the prisoner, thank you.
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