Director of Public Prosecutions v Van Le

[2016] VCC 1527

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01149

DIRECTOR OF PUBLIC PROSECUTIONS

v

BINH VAN LE

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 October 2016
CASE MAY BE CITED AS:	DPP v Van Le
MEDIUM NEUTRAL CITATION:	[2016] VCC 1527

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G. Overend
For the Accused	Mr P. Higham

Pages 1 - 8

 

 

HER HONOUR:

1Binh Van Le, you have pleaded guilty to one charge of kidnap, Charge 1, and one charge of attempted sexual penetration with a person aged ten to 16 years, Charge 2. 

2This offending occurred on 2 March 1985.  The circumstances of your offending are set out in detail in the Summary of Prosecution Opening Upon Plea which was tendered as Exhibit A.

3The complainant in this matter was 13 years old at the time.  You were 16 years old.  You knew each other because you both lived in Flemington in the Flemington housing commission area.  The complainant was waiting at a tram stop at about 6.30 pm that evening.  A short time later you approached her from behind and grabbed her on the right arm.  There were two other unknown men with you.

4You held on tightly to the complainant and dragged her away from the tram stop, up several streets and into the men's toilet block in a park.  This was about 1.5 kilometres from the tram stop.  The other two men followed.  These are the circumstances of Charge 1 of kidnap.

5A member of the public fortunately observed what had happened and reported the matter to the police.  In the meantime you took the complainant into one of the toilet cubicles.  A co-offender pulled her arms behind her and held onto them.  The other co-offender was outside the toilet block.  You told the complainant to shut up or you would slap her.  You then, with the assistance of another co-offender, took all of the complainant's clothes off.  You left the cubicle and removed your own clothes apart from your shoes and socks.  The co-offender then brought the complainant out of the cubicle.  You and the co-offender grabbed the complainant and made her lie down on the ground on her back.

6You got on top of the complainant.  She was pushing you away.  You tried to put your penis into her vagina.  She resisted by keeping her legs together.  You reached behind you and pushed her legs apart.  You then tried to put your penis into her vagina.  It appears that you ejaculated at that point.

7You got off the complainant, walked into a cubicle.  You got some toilet paper and wiped your penis, throwing the toilet paper on the ground.  You then got dressed and left the toilet block.  This is the subject matter of Charge 2, attempted sexual penetration with a person aged ten to 16 years.

8The co-offender then pulled his pants half way down but police attended at that time.  You and the co-offenders ran away with police following.  You were arrested.  Later that day a police officer attended the toilet block and collected the toilet tissues that you had used.  These items, along with the complainant's clothing, were analysed and samples stored.

9You were not charged at that time.  Two days later the complainant made a statement identifying you as one of the offenders.  I am advised that in October 1985 police attempted to locate you but were told you had moved to Sydney.  Your counsel says, and I accept, that from time to time you went to Sydney, but that you remained living in Victoria for periods of time after this incident.  It appears that you indeed came to the attention of police at various times after this incident.

10There is no explanation of why the matter was not pursued after October 1985 until August 2012.  At that point it appears that what is known as the Sex Crimes Cold Case unit became aware of the matter.  Further investigations were conducted.  In September 2005 you provided a DNA sample.  DNA analysis confirmed that you were the sole contributor to the sperm matter located on the toilet tissues found by the police in March 1985.

11The matter resolved by way of straight hand up plea. 

12The maximum penalty for attempted sexual penetration with a person aged ten to 16 years is five years imprisonment.  The maximum penalty for kidnap contrary to common law, which is the offence with which you were charged, is "at large".

13Attempted sexual penetration with a person aged ten to 16 years is a class one offence under the Sex Offender Registration Act 2004. You were a child at the time of committing this offence. The reporting period if I made such an order would be seven and a half years. The making of such an order is discretionary. The prosecution do not seek registration. In my view the lack of any subsequent sexual offending and your rehabilitation mean that I exercise my discretion not to require your registration.

14This is serious and abhorrent offending.  The 13 year old complainant was forced by you a lengthy distance along a street to a toilet block.  There were two others with you.  She was confined in a toilet cubicle and then stripped and forced to lie down.  You tried to forcibly have sex with her.  Fortunately you got no further than attempted penetration and this appears to be because you ejaculated rather than because you had any change of heart.

15Due to the prompt action of members of the public the police arrived just in time to prevent any further offending.  It is clear from the Victim Impact Statement, Exhibit C, that the complainant suffered at the time and continues to suffer harm 31 years later from what must have been an absolutely terrifying ordeal.  The complainant's Victim Impact Statement provides a chilling and poignant reminder of the often lifelong harm caused by sexual offending.  It is a disgrace on the justice system that you were not brought to account for your crimes until so many years later.

16As we know the police finally reinvestigated the matter and you have now been brought to court after an extraordinary delay.  You are a 47 year old man being sentenced for what you did as a 16 year old.  Your personal circumstances were set out by your counsel and in a psychological report of Dr Joel Godfriedson dated 10 October 2016, Exhibit 2.

17You came to Australia with your family as a refugee from Vietnam in 1981.  You were about 12 years old and spoke no English.  You had had no education in Vietnam.  You went to primary school and then high school in Australia.  You were expelled in 1984.  By that time you were in trouble with alcohol and offending.  Subsequently you began using drugs.

18You had two minor Children's Court appearances prior to this offending.  After this offending you engaged in significant criminal offending with three terms of imprisonment, including a four year term of imprisonment in Western Australia in 1993.  You had two significant relationships.  You had one surviving child who is now 21 years old.

19Your use of drugs, particularly heroin, had a negative impact on your relationships with your partners and your family.  By the time you were 30 years old you had made successful attempts to stop using controlled drugs.  You had apparently decided you wanted a different life and went about trying to obtain that different life.  Since then your personal circumstances have become entirely different.  You married in 2001 and have three children.  You have been working as a labourer in a quarry since 2003.  With the assistance of your wife you care for your elderly father who lives nearby.  You have good relationships now with other family members.   The rest of your family have been hardworking and stable.  A number of family members were in court to support you. 

20There are a number of significant matters which operate in mitigation of sentence.  You pleaded guilty which is an expression of your remorse and also has utilitarian benefit.  I accept that you are genuinely remorseful and ashamed of your conduct as a boy.  You cooperated with the police in providing your DNA sample.  Your rehabilitation has already been achieved in my view. 

21The delay in this matter has meant that for at least a period of time this matter was hanging over your head, although you may have put it to one side after a certain amount of time elapsed.   That delay has meant that in addition to engaging in offending which does not include any further sexual offending you have been able to turn your life around.  The report provided assesses you at low risk of sexual re-offending.  You have no drug and alcohol or mental health issues to impede your rehabilitation.

22I have also taken into account that you have spent some time in prison since this offending which must be taken into account in application of the principle of totality.  

23It is necessary for me to bear in mind sentencing practices at the time of the offending for children of 16.   The principles applicable to the sentencing of children are set out very helpfully in the case of R v Webster (2016) VSCA 66 at paragraph 78 and 80. In that case the Court of Appeal say that when sentencing a child rehabilitation is a paramount consideration. The court says that specifically general deterrence and denunciation have no role to play in the sentencing synthesis of an offender who offended while under the age of 18. The court says that there may be cases where a sentence involving detention will be imposed. The court outlines a number of matters to be taken into account. In sentencing a person under the age of 18 the court says that while rehabilitation is the paramount consideration, just punishment is also a relevant issue.

24It is difficult to know what the Children's Court sentence would have been when you were 16 years old.  I consider that it is within the range of sentences that may have been imposed that a supervision order would have been made or an order detaining you in what was then a Youth Training Centre.  In my view, either of those dispositions would have been open given the seriousness of your offending and your circumstances at the time.

25This offending was very grave and that must be reflected in the punishment to be imposed.  General deterrence and denunciation have no role to play.  Your rehabilitation has already been achieved.  In those circumstances I consider that a suspended sentence of imprisonment would now be the appropriate penalty to impose.

26I am going to impose a sentence of imprisonment on you which is wholly suspended.  During the period of suspension, Mr Van Le, you must make sure that you obey all the law.  If you commit any further offence during the period of suspension you can be brought back before me and re-sentenced.

27Could you please stand up?  On Charge 1 of kidnap you are convicted and sentenced to 18 months' imprisonment.  On Charge 2 of attempting sexual penetration of a child between ten and 16 years you are convicted and sentenced to 12 months' imprisonment.  The total effective sentence is
18 months' imprisonment.  That sentence of imprisonment is wholly suspended for a period of 18 months.

28Mr Van Le, I remind you that during the next 18 months if you commit any further offence for which imprisonment is a potential penalty you can be brought back before me and resentenced in respect of these matters.  Thank you, could you please take your seat for the moment.

29But for your plea of guilty I would have sentenced you to a term of imprisonment of three years with a non-parole period of 18 months.

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