Director of Public Prosecutions v Tran (a pseudonym)
[2024] VCC 1373
•30 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TU TRAN (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 July 2024 | |
DATE OF SENTENCE: | 30 August 2024 | |
CASE MAY BE CITED AS: | DPP v Tran (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1373 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Rape - no criminal priors
Cases Cited:Zachary Underwood (a Pseudonym) v The Crown [2017] VSCA 282; Saeidi v The Queen [2015] VSCA 219; Tiburcy v The Queen [2010] VSCA 307
Sentence: Convicted and sentenced to four years and three months’ imprisonment with a non-parole period of two years and three months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr F Cameron | The Office of Public Prosecutions |
| For the Accused | Mr B Johnston with Ms M Deighton | Doogue & George Criminal Lawyers |
HIS HONOUR:
1Tu Tran,[1] on 16 July 2024 at the County Court of Melbourne a
jury of 12 found you guilty on Charge 1 of rape on Indictment no.M11233247. This charge has a maximum of penalty of 25 years imprisonment. The offending was a single occasion in the time period between 1 January 2004 and31 December 2005. You have no prior convictions.[1] A pseudonym.
2On 16 July 2024, I remanded you in custody for your plea hearing which was listed on 28 August 2024. You have spent 45 days in custody as
pre-sentence detention for this offending. This was your first experience of the prison environment at the age of 60 years. At the time of your offence, you were between 41 and 43 years of age. Ms Vu[2] conceded in her evidence that she could have been as old as 18 at the time of your offending.
The circumstances of your offending
[2] A pseudonym.
3At the time of the offending, you lived at an address in Hadfield. You resided at that premises with your wife and children, a son and daughter. Also residing at that premises was your wife’s sister and her two children, a daughter and a son. Your niece is the victim of this offending.
4Your family and your sisters family lived as a single family unit. You had resided at three separate addresses together. You were the father figure of the household. The family pooled their resources to purchase housing accommodation over the years. This system has been successful in achieving household accommodation for all the members of your wife’s extended family, including the victim of your offending.
5Consistent with the jury verdict I will make the following findings about your offending:
1)You were the father figure of the household and were principally responsible for the household chores of cooking, cleaning and picking up and dropping off the children at school;
2)Your victim was 18 years of age at the time of your offending;
3)You were 41 to 43 years of age at the time of the offence. The age gap between you is approximately 25 years;
4)The offence occurred on a single day;
5)Your victim came home after school and you were the only person at the premises;
6)You told your victim to go into her mother's bedroom;
7)You told the victim to remove her underwear. She took off her underpants but otherwise remained fully clothed, including her summer school dress;
8)You came into the bedroom when your victim was lying on the bed;
9)You bent down and licked her vagina with your tongue entering between the lips of her vagina;
10)The offending was over in a very short space of time.
6The complaint about your offending was not made for some 14 to 15 years. You and your family, including the extended family continued to live and interact with one another until the Christmas of 2018. You denied the offending when you were interviewed by police. You have conducted a committal and a trial as is your right. You have continued to deny the offending.
Victim impact statement
7Ms Vu prepared a victim impact statement dated 13 August 2024. It was read into the record of the court. Ms Vu sets out how your offending, some 19 to 20 years ago now, made her feel so ashamed she was unable to tell her family about it. She describes having incredible guilt for her daughter. She describes being on high alert for her two children. She sleeps with them because she is reluctant to let them out of her sight. Her partner sleeps in another room in the house and that has affected her intimate relationship with her partner. She says that because she has made the complaint about your offending, she has gone against what she describes as ‘my culture of looking after the family first.'
8She further states that she has lost her relationship with her mother and her auntie who is your wife.
9It is clear that Ms Vu attributes the breakdown in her familial relationships to the reporting of your offending to the police.
Personal circumstances
10You will turn 61 years of age in December of this year. At the time of your offending you were between 41 and 43 years of age. In 1963 you were born in the city of Hue in central Vietnam. In 1965 your father's employment changed and your family moved to Saigon. Your father worked in the President’s Department. In 1975 Saigon was overrun by the forces from North Vietnam, your father, mother and youngest brother moved to the highlands. Your father worked as a farmer.
11At the age of 12, that being in 1975, you and your older brother who was all of 13 years of age, continued to live in Saigon alone. You had an auntie nearby. Your other brothers moved to other parts of the country and you lost contact with them. You continued your education to year 12 level and then completed a course in welding and machinery which took two years.
12You have always been an enterprising person. This ability as a result of being left to fend for yourself in a country that had been devastated by war. You were only 12. In any event after your education was completed, you commenced a small business with your brother manufacturing shampoo and cosmetics. You continued to conduct that business after your older brother moved to Cambodia to live.
13In 1989 you married your wife. You have two children born in 1990 and 1992. In 1996 you moved to Australia. You were sponsored to Australia by your wife's sister. Initially you lived in Fitzroy together. Whilst there you attended Collingwood TAFE for English language lessons. You did commence a course in engineering and computer systems at RMIT. You did not complete that course.
14You and your now blended family consisting of your wife and two children, your
sister-in-law and her two children including Ms Vu moved to North Coburg. The two women of the house worked outside of the house in paid employment. As I understood it, both worked in childcare. You performed all the domestic tasks in the house and caring for the four children, including taking them to and from school.15During the day you worked delivering newspapers and pamphlets, and had a small importing business involving items from Vietnam, including photo albums and other curios.
16The extended version of your family then moved to Hadfield where the offending occurred. You continued to live there until your remand for this offending. I note here that your father died in 1985 or 1986 and your mother who is now
90 years of age, continues to live in Vietnam.17Since arriving in Australia you have, with the help of your wife and her two sisters managed to get all of your family members, including Ms Vu into a financial position to buy their own homes. You have worked hard in this country to ensure your extended family has settled well and comfortably in their new country. It is in stark contrast to your personal experience as a 12 year old in Vietnam. Clearly family unity and collective support is important to you. You continue to have the support from your family in the custodial setting.
Sentencing considerations
18The basic purposes for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it, and your personal circumstances.
19I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible, that you as an offender are rehabilitated and reintegrated into society.
20I am also required to take into account the current sentencing practices in fixing your sentence. That inquiry is directed particularly, but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time of your offending. I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances. And many of the cases would be distinguishable from your case, as indeed they are from one another. Of course, current sentencing practices are only one of the sentencing considerations that I must apply.
21A just and appropriate sentence will be informed by the nature of the sexual act, the surrounding circumstances and the offending incident. If there were any threats made at the time of the offending, which are absent in this case. The frequency and persistent nature of the acts, which is also absent in this case. The standard sentencing regime has no application to your case.
22Your counsel referred me to a number of cases as comparable cases, the authorities were: Zachary Underwood (a pseudonym) v The Crown [2017] VSCA 282; Saeidi v The Queen [2015] VSCA 219; and Tiburcy v The Queen [2010] VSCA 307. Each of these authorities had multiple charges as well as multiple sex offences.
23I also looked at the sentencing snapshot for December 2005 for the charge of rape which was also tendered. The snapshot document does not give details of, or the parameters of the offending, but instead just gives raw statistics. I have taken these matters into account when finalising your sentence for a single charge of rape.
24You have no prior criminal history and no offending subsequent to this offending, a period of some 20 years. I assess your prospects of rehabilitation as good.
25In this case the factor of delay is relevant in the sentencing process. First of all, there has been a four year delay between when you were first interviewed by the police for this offending and your trial date. I find that this delay is unduly long and not attributable to you in any way. I accept there is a natural anxiety which is suffered by a person such as yourself who are charged with offences and an unduly long delay. In a case such as this it will be appropriate to reflect that by a mitigation of sentence that will be imposed.
26Secondly, there is a delay of nearly 20 years between the offence date and the trial date. You have not offended in that time. Your rehabilitation has been shown to be well advanced since then and the mitigation of your sentence is appropriate to preserve the rehabilitation that you have demonstrated to date.
27You conducted a trial, that is your right. You continue to deny the offending. The relevance of these matters is that you have no remorse for the offending. You are not to be punished for conducting a trial but rather, you have foregone any chance of a discount in sentencing for a plea of guilty to the offence.
28Your offending is serious and the Parliament has legislated the maximum penalty of 25 years imprisonment to reflect the seriousness with which the community holds the charge of rape. The level of seriousness in this case is indicated by the following factors:
1) The victim is your niece but lived in the same household as yourself in effect, as your daughter;
2) The offending occurred in the family home where the victim is entitled to feel safe;
3) The offending is a significant breach of trust;
4) Your victim was 18 years of age and you were 42 to 43, an age gap of some 25 years;
5) The offence is a single incident of oral penetration of the victims vagina;
6) The offending did not risk pregnancy or transmission of any sexually transmitted diseases;
7) The offending lacked any accompanying violence or verbal threats about the complainant remaining silent.
29The objective gravity of this offence is at the low end of the range for the offence of rape.
30The prosecution does not seek a sex offenders registration order against you. The victim conceded that she may have been 18 years of age at the time of your offending. I find that you are a very low risk of reoffending in this manner.
31I take into account your personal circumstances and the fact that you continue to enjoy the support of your wife and family whilst you are in custody. I accept that for a person of the age of 60 years, the first time experience of imprisonment would be very challenging and difficult for you.
32The sentencing principles of general and specific deterrence, just punishment, denunciation of your actions and the protection of the community dictate that the only appropriate sentence is a term of imprisonment with a non-parole period fixed. Your counsel and prosecution submit that to be the case.
33Would you stand please. On the charge of rape; you are convicted and sentenced to four years and three months imprisonment. I fix a non-parole period of two years and three months imprisonment. I declare that you have served 45 days pre-sentence detention in respect of this sentence.
34Is there anything further?
35MR JOHNSTON: No, Your Honour.
36MR CAMERON: No, Your Honour.
37HIS HONOUR: Thank you. Mr Tran, that completes this process at this stage. Mr Johnston, the appeal period starts today.
38MR JOHNSTON: Yes, Your Honour.
39HIS HONOUR: Yes. Thank you and remove the prisoner thank you.
Madam Interpreter, thanks very much again for your assistance and being available to come here today, thanks. Thanks Mr Johnston and thanks
Mr Prosecutor all that way away.40MR CAMERON: Thank you, Your Honour.
41HIS HONOUR: Thank you.
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