Director of Public Prosecutions v Tran
[2024] VCC 1605
•15 October 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 24-00931
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIEN TRAN |
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JUDGE: | HER HONOUR JUDGE QUIN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 October 2024 |
DATE OF SENTENCE: | 15 October 2024 |
CASE MAY BE CITED AS: | DPP v Tran |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1605 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charges of possessing child abuse material obtained or accessed using a carriage service.
Legislation Cited:
Cases Cited:
Sentence: Total effective sentence of 2 years imprisonment to be released immediately on a Recognisance Release Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Van Nguyen | Office of Public Prosecutions |
For the Accused | Ms Mildenhall | Cao & Co Legal |
HERHONOUR:
1Tien Van TRAN, you have pleaded guilty to one charge of Possessing child abuse material obtained or accessed using a carriage service. The maximum penalty for this offence is 15 years' imprisonment. The details of your offending are contained in the Summary of Prosecution Opening for Plea dated 10 September 2024. (Exhibit A)
2Both parties filed written sentencing submissions, and I have taken the matters raised in those into account.
3Section 16A(2) of the Crimes Act (Cth) (the Act) sets out a non-exhaustive list of matters to which a court is required to have regard where they are relevant and known to the court. I have considered those matters relevant to you and other common law sentencing principles. Further, s16A(2AAA) of the Act makes specific provision for sentencing of offenders for Commonwealth child sex offences and rehabilitation. If I am minded to impose a term of imprisonment, exceptional circumstances must be established, if I order that you are not required to serve any of that term immediately, and you enter into an recognisance release order. (See s20(1)(b)(ii) of the Act. I will address that issue later in these reasons.
4The relevant sentencing principles for child abuse material offences are well-established by the authorities referred to in both counsel's submissions.
Circumstances of the offending
5On 14 January 2023, you flew from Melbourne to Vietnam, and returned to Melbourne on 14 February 2023. On arrival you were subject to a baggage examination by Australian Border Force (ABF) officers and two devices, an iPhone6 and iPhone XS Max were produced. Preliminary examination of each device identified the presence of 'objectionable material' within the meaning of the Customs (Prohibited Imports) Regulations 1956 (Cth), namely child abuse material
6Forensic examination of those devices identified a total of 270 files constituting child abuse material within the meaning of the Criminal Code (Cth).
7The material was reviewed and categorised according to the Australian Child Abuse Categorisation Scheme. (See Annexure A, Exhibit A). A table in Exhibit A sets out the relevant Category and number of images from each device. (See paragraph 8, Exhibit A)
8The child abuse material was downloaded onto your phone between 7 March 2020 and 11 February 2023, a period of almost three years.
9Various examples of the kind of material in both the image and video files are set out in paragraphs 10 and 11 of Exhibit A. Given the young age of some of the participants and the extent of depravity of the conduct revealed, particularly between very young children and adults, I accept that the content in respect of the offence was serious.
Record of Interview
10When interviewed by police, you admitted you had accessed the websites, and saved images and videos onto your devices, so you could watch them. That you were part of a group on Zalo (a messaging application in Vietnam) where videos were sent, and other members of the group could download them. You maintained that you only downloaded material from this group and did not send anything yourself or chat with anyone. You said when you wanted to watch sex videos, would type in search terms Vietnamese sex videos or Japanese sex videos. Images would then appear, and you could choose what you would like to watch. You agreed there were child sex images on your phones. You had taken the phones to Vietnam to fix them, but you were unable to do so. The images were downloaded in Australia.
11You maintained you were not aware of the age limit for pornography, and although you knew that raping a child was a crime, you did not think saving images or watching videos relating to that activity was a crime.
Personal Circumstances
12I was provided with the following materials:
·Psychological Assessment Report of Alison Mynard, Clinical Psychologist, Next Door Psychology, dated 21 September 2024.
·Treating Psychological Report of Bach-Yen Nguyen, dated 5 July 2024.
·Letter of Erin Duffy, Advanced Child Protection Practitioner, Department of Families, Fairness & Housing, dated 9 March 2023.
·Letter of Australian Meat Group Pty Ltd, dated 3 August 2024.
13You are currently aged about 40 years though your date of birth is uncertain given the circumstances of your childhood. You were raised in a fishing town in the South Province of Kien Giang in Vietnam with your two siblings. You had a happy childhood, though you received very little formal education, finishing in Grade 5 to start work to enable you to financially contribute to your family.
14You became a fisherman and helped out on the boats in your town. It was during this time, when you were aged about 13 years, that in the course of your work, Typhoon Linda struck the fishing town.
15I was informed that as a consequence of this event, over 3,000 people died and that you were exposed to severe trauma after your boat capsized. Before you were rescued, for a number of hours, you were surrounded by people drowning and dead bodies in the water. You survived by holding onto debris and being assisted by your uncle who had attached you to himself with a rope. Following this natural disaster, you remained involved assisting in piling up dead bodies once on the mainland. Many of the fisherman that you knew did not survive.
16It is apparent that you were extremely fortunate to survive, though the exposure to this traumatic incident and its aftermath, has impacted your mental functioning for most of your life. It is only in recent times that you have revealed this incident and the impact it has had on you to a relevant professional.
17You met your first wife in Vietnam in 2000 and have a son from that union who is aged 20 years. You migrated with them to Australia in May 2006.
18Since your arrival, you have consistently worked as a butcher for approximately 18 years, and you are currently employed by the Australian Meat Group in Dandenong.
19You separated from your wife in 2014. You married your second wife in 2015 and have two children, a son aged eight and a daughter who is almost three. Your son has spent time in Vietnam when he was very young, being cared for by extended family whilst you and your wife worked, though he returned to Australia in 2019. You and your wife have cared for your children since that time. You managed to save sufficient funds to purchase a house in 2020.
20I was informed that after your arrest you went home, but that about an hour later representatives from child protection attended, and you were advised that you could no longer see your children. Pursuant to that direction you have not seen or had any contact with them since. Although you still communicate with your wife you understand that relationship has been irreparably broken.
21In respect of this offending, when you discussed it with Ms Mynard you told her that you had stopped clicking the links, and thought you had deleted them, and that you had tried to leave the group. You maintained to her that you did not have time to go through your phone and delete images and that you could be added to the group without your permission. (See Ms Mynard's Report [44][b][c]
22Your counsel later clarified that you did not try to delete them, rather that you no longer looked at them. Further, and it was accepted by the Prosecution, at the time of your arrest your phone was inoperable so you could not have accessed the material by that means.
23Some of the information that you provided to police, professionals and as your instructions is unclear and appears inconsistent. As I indicated in the course of the plea, I accept that may be explicable by your poor education, lack of knowledge of Australian cultural norms and or language issues. Such is relevant to your personal background and understanding of this kind of offending, reducing your moral culpability to a limited extent. However, I do not accept that your lack of understanding that this conduct was criminal has a mitigating effect on the sentence to be imposed as submitted by your counsel.
24As a consequence of this offending, as noted previously, you have been prohibited from seeing your children, and your relationship with your wife has broken down. Additionally, you are exposed to increased financial burden with mortgage responsibilities and you having to maintain your own rental accommodation. These matters before the Court, together with these other consequences, have caused your mental health to deteriorate significantly.
25In respect of these matters, the Prosecution submitted they were not a form of extra-curial punishment, rather were relevant to your personal circumstances and the sentencing exercise. I note that your counsel did not persist with her submission these circumstances or consequences amounted to extra curial punishment, content for those matters to be treated as indicated by the Prosecution.
Prior history
26You have no prior criminal history or court appearances. This offending occurred over 18 months ago and you have no outstanding or subsequent matters.
Delay
27You were interviewed at the airport on 14 February 2023, though charges were not ultimately issued until 12 January 2024. It was not submitted you had experienced inordinate or undue delay, though you have had these matters hanging over your head for 20 months.
Mental Health
28After your arrest and changed living circumstances, your mental health deteriorated. You had little support. Your GP placed you on a mental health care plan and you have completed eight sessions since September 2023 with Psychologist Bach-Yen Nguyen. In February 2024, Ms Nguyen administered the Depression, Anxiety and Stress scales, which placed you in the extremely severe range for each of those conditions. (See p3.) You reported symptoms of depression and anxiety and psychotic symptoms, and self-reported having visual and auditory hallucinations.
29On 10 February 2024, the day after the Filing Hearing for this matter, you attempted suicide. You are currently on anti-depressants but continue to have ongoing suicidal thoughts. (See p3)
30Ms Mynard, Forensic Psychologist, assessed you in July 2024 and administered tests in relation to both Risk and Post Traumatic Stress Disorder. She noted you had twice attempted suicide and experienced a significant deterioration in your mental health.[33][54] Ms Mynard diagnosed you with Post Traumatic Stress Disorder as a consequence of your experience as a young teenager and the impact of Typhoon Lynda.
Verdins
31Ms Mynard opined that your condition of PTSD, 'had been a permanent mental health disorder for you over your life, or for many decades, and that it has never been treated.' [50] As a result, your ability to …
… reason and make clear and thoughtful decisions have been affected by PTSD, because you have been operating primarily in your ‘survival’ part of your brain for many years, rather than your frontal lobes that deal with reasoning, judgments and thoughtful decision making. You have been able to work and maintain relationships, but underlying your everyday functioning, is a struggle to cope, reduced capacity for coping with stress and poor mental health[51]
32Further, she found that:
… given that the offending occurred over a period, … that PTSD did affect you at some stage during your offending, and it is likely to have had an impact on your impaired decision making and your impaired judgment.[50]
33Your counsel conceded the connection to your offending was not strong, but submitted your moral culpability should be reduced by virtue of your diagnosis. Further, that there should be some moderation to the weight to be given to general and specific deterrence as sentencing considerations.
34The prosecution did not dispute that submission, recognising it was a question of how much weight should be given by me with that limited connection to your mental condition established.
35Further your counsel relied on limbs 5 and 6 of Verdins that your mental health would result you in being subjected to more than the ordinary burden of imprisonment, and that your mental health was likely to deteriorate in custody. Similarly, the prosecution conceded a sentence of imprisonment would weigh more heavily on you than a person of normal health.
Plea of Guilty - Remorse
36I take into account your plea of guilty – your plea was early and has facilitated the course of justice and provided a significant utilitarian benefit to the operation of the criminal justice system in this State. I accept your plea is indicative of remorse. That is, consistent with the assistance that you provided to police when you were arrested, the material in the record of interview, and as expressed by you to relevant professionals. Though accepting a level of remorse, I recognise that you have limited insight and lack of explanation for your offending. In Ms Mynard's opinion you require assistance in dealing with those matters through Sexual Offenders Treatment Program (see paras 52-54)
Prospects of rehabilitation
37Your counsel submitted you had good rehabilitation prospects relying on:
·Your lack of criminal priors;
·Stability in the community and family;
·Your Employment;
·Ms Mynard assessment of you as a low risk of reoffending [54]
38The prosecution submitted I should be less optimistic about your rehabilitation prospects, and that they were guarded, given your lack of insight into your offending and that you had not commenced any treatment of particular relevance to this offending.
39I regard your rehabilitation prospects as good, particularly given your indication that you are willing to engage in treatment as recommended, combined with a recognition of the significant mental health consequences of events from your childhood and your current treatment of that.
Nature and Gravity of the Offending
40You had 270 unique child abuse material files which were downloaded over a period of three years; 159 of those files were of the most serious category with very young children depicted as exposing their genitalia or in sexualised poses, engaging in masturbation and solo sex acts; and engaging in oral and vaginal penetrative sex with adults and/or other children. The type of material and degree of its depravity is important to consider in sentencing for these kind of offences, though it was conceded that you had a relatively small amount of material.
41It is well recognised that this is not a victimless crime. Children are sexually abused in order to supply the market. The courts have recognised that significant lifelong harm is caused to children who are sexually abused, and their victimisation continues by the distribution of material depicting that abuse.
42The seriousness with which Parliament regards this kind of offending is reflected in the maximum penalty and specific provisions relating to child abuse material offences.
43I note there is no evidence the material was for the purpose of sale and that your possession relates to the single day of your arrest of 14 January 2023.
44I was provided with some comparative cases by both parties, including examples where the Court had been satisfied that exceptional circumstances existed and thus the offender was not required to serve an immediate term of imprisonment. Clearly each case depends on its own facts and personal circumstances of the offender though the cases provide broad guidance.
45Serious offending of this nature would usually warrant a term of imprisonment. Despite there being a relatively small amount of images, they contained extremely depraved sexual conduct with very young children. The prevalence and ready availability of child pornography on the internet makes general deterrence an important consideration. The creation of this kind of offence to accommodate the occurrence of child exploitation via this medium serves to protect this vulnerable class of victim. Their images remain and are accessible by those minded to engage in this kind of conduct. Such is deserving of just punishment and denunciation. Specific deterrence is also relevant but less so given your lack of priors and rehabilitation prospects.
46Your counsel submitted I should impose a community corrections order. In the alternative it was submitted that I should impose a term of imprisonment but that you should not be required to serve it immediately given exceptional circumstances.
47The prosecution submitted that exceptional circumstances were not established and that I should impose a term of imprisonment with a portion of that to be served immediately. As I indicated in the course of discussion in the plea, the real issue to determine is whether I accept exceptional circumstances have been established. I have considered the relevant authorities in relation to that point.
48Your counsel submitted that the following matters taken together qualified as exceptional circumstances, namely:
a)The PTSD suffered by you due to the extremely severe episode of trauma you lived through as a child. The permanent nature of that condition affecting your everyday life, including during the time of your offending.
b)The serious disintegration of your mental health since your arrest and ongoing suicidal thoughts. Your engagement with counselling that commenced before you were charged for these matters, and treatment related to those mental health issues;
c)Your cooperation with police and admissions in the interview.
d)Your early plea of guilty and remorse.
e)That you have no prior or subsequent matters.
f)Your significant and consistent work history.
g)Ms Mynard’s view that you are a low risk of re-offending and her opinion that you require Sex Offender Treatment Program to gain insight into your offending
49I regard the most significant of those matters your mental health, connected as it is to an extremely traumatic event in your childhood. Taking all those matters together, I am satisfied exceptional circumstances have been established.
50What I propose to do is sentence you to a term of imprisonment for a period of two years and you will be released forthwith on you entering in a recognisance release order. Part of that order will have a condition that you participate in a Sex Offender Treatment Program.
51This charge is a class 2 offence under the Sex Offenders Registration Act and it is a registerable offence. You will be required to comply with reporting obligations as set out in the Act and the reporting period is for a period of eight years.
52Pursuant to s6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have imposed a term of imprisonment of two and a half years and required you to serve a period of 12 months.
53I am required to explain the effect of a recognisance release order that I made in respect of the sentence that I have imposed. I have sentenced you to two years' imprisonment but made an order you be released upon you entering into recognisance release order. The purpose of the order is to enable you to be released for the full length of your sentence, and provide you with the opportunity to carry out your punishment within the community. The bond you will enter is conditioned that you be of good behaviour throughout the duration of the bond.
54If you commit any further offence or in any other way breach a condition of this recognisance, at any time during that period of two years, you may be brought back before this court to be dealt with for the breach.
55Depending on the nature of the breach of your bond, a monetary penalty may be imposed, the length of the bond may be extended, a community corrections order may be imposed, or if the breach is more serious you may be required to serve the entire unserved balance of your sentence of imprisonment. That is, the entire two years.
56You are not required at this stage to pay the amount of recognisance, which I have set at $1,000. If however, you breach the conditions of the recognisance you may, in addition to any of the other consequences I have just referred to, be required to pay that sum.
57I have the relevant recognisance release order.
58Are there any other matters that I need to deal with?
59MS VAN NGUYEN: No, Your Honour.
60HER HONOUR: Thank you.
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