Director of Public Prosecutions v Za Lian
[2018] VCC 773
•24 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00003
CR-18-00004
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THWANG ZA LIAN |
| and |
| KAPLING HLAWNCEU |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 May 2018 | |
DATE OF SENTENCE: | 24 May 2018 | |
CASE MAY BE CITED AS: | DPP v Za Lian & Anor | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 773 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – rape – co-accused – imposition of a jail term
Cases Cited: R v Mills (1998) 4 VR 235; R v Azzopardi & Ors [2011] VSCA 372
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J McWilliams | John Cain Solicitor for the Director of Public Prosecutions |
| For the Accused Za Lian | Mr J Anderson | Victoria Legal Aid |
| For the Accused Hlawnceu | Ms J Fallar | Emma Turnbull & Associates |
HER HONOUR:
Thwang Za Lian and Kapling Hlawnceu, you have both pleaded guilty before me to one charge of rape.
The offence of rape is serious and that is reflected in the maximum penalty prescribed by law and that is 25 years’ imprisonment.
I proceed to sentence you now on the basis of the prosecution opening that was read at the plea hearing and was marked as Exhibit 1.
The victim is a 36 year old woman who was a stranger to you both. Her relationship had broken down as a consequence of which she was homeless. In the days preceding the offending she had been sleeping rough and was temporarily sleeping under the Werribee Bicentennial Bridge.
On Monday, 14 August 2017 at approximately 9.40 pm, both of you in company with a third man, alleged to be Ram Thang, raped the victim. Mr Thang has pleaded not guilty and is awaiting trial.
Through your plea of guilty you both admit that you are each criminally responsible. Mr Za Lian, you are guilty on the basis that you sexually penetrated the victim yourself by penetrating her vagina with your penis without her consent and you were also complicit with the third man sexually penetrating her vagina with his penis without her consent. Mr Hlawnceu, you were complicit with the two other males in that you provided assistance and encouragement to each of them to sexually penetrate the victim by restraining her and covering her mouth to prevent her from calling for help whilst she was raped.
Za Lian, you were 22 at the time and Hlawnceu you were aged 20. You are both of Myanmarese origin, residing in Australia as refugees with humanitarian protection visas.
At the plea hearing you have both been supported by a large group of family and broader members of the Chin community of which you are both members.
The context to the offending was that you three men had been drinking together during the afternoon of 14 August 2017. You had been drinking beer. The three of you left the Commercial Hotel, Werribee, at about 9.01 pm. The vehicle that you were travelling in was parked in a street in Werribee at about 9.28 pm. The three of you then walked along Comben Drive towards the Werribee Bicentennial Bridge taking with you a six pack of Corona stubbies. There, you noted the victim attempting to go to sleep under the bridge.
Za Lian, you and the third man, Thang, approached the victim carrying Corona stubbies in your hands. Hlawnceu, you stayed on the embankment and watched the two men as they approached.
The victim became immediately concerned as she saw you approaching her. She yelled out to both men to stay back, go away and leave her alone.
Za Lian, you and Thang continued to approach her. She got up and tried to push you both away. She began to kick and punch out in fear. She was screaming out for help. At this stage, Hlawnceu, you joined the other two and assisted them by covering her mouth to stop her from crying out. You three men then took hold of the victim and forcibly took her to the ground and dragged her underneath the bridge, away from both street lights and the view from the street. Hlawnceu, you placed a jumper over her face, covering her eyes and mouth to further prevent her from calling out for help.
Whilst under the bridge the victim was forcibly raped in the manner that has been described in the prosecution opening. I do not propose to repeat all the details.
The victim, felt like she lapsed in and out of consciousness but still sought to fight each of you men off.
Fortunately, as the attack was continuing, a witness, Brie Ramage, who was driving past with a friend, Jodie Roberts, noted something odd was happening and slowed her vehicle down and yelled out to each of you, “What are you doing?” She saw the men stand up and she yelled at them, “What do you think you’re doing? Get out of here!”. One of the men then yelled, “Fuck” and you three then ran off in the direction of the train station.
The victim crawled up the embankment towards the road. Her pants were around her ankles, she was bleeding from the vagina and had cuts and bruises to her face. She was supported and assisted by the two passers-by, 000 was informed of the events and an ambulance attended.
At about 10.47 pm, you were observed by two police officers. You two and the other male were seen to be emerging from parkland approximately 1.5 kilometres from the crime scene. There you were arrested and taken into custody.
Police and Dog Squad members attended the scene. One dog tracked back along the path from where you were all arrested and located a used condom. The used condom was forensically examined and DNA originating from you, Za Lian, was located on the inside and DNA from the victim was located on the outside of the condom.
The crime scene was forensically examined and police located several Corona bottles on the embankment near the bridge as well as a further Corona bottle in the area under the bridge, the victim’s blue jeans and underwear, a clump of hair, two sealed condom packets, and empty condom packet, all of which items were seized and retained as exhibits.
The victim was taken to Sunshine Hospital where she was examined.
Dr Megan Quedley noted several sites of injury. She concluded that the victim had sustained significant genital injuries as set out in paragraph 23 of the opening.
The doctor concluded that the nature and extent of the injuries found on the genital examination was uncommon and was consistent with multiple episodes of penetrative blunt force to the vagina. The doctor also located comparatively minor abrasions to the victim’s upper and lower back, arms and both knees.
After you were arrested you were both interviewed by police. Za Lian, you stated that you were too drunk to recall the events of the night but denied the allegations when they were put to you. You denied that you had raped the victim or that either of your friends had raped the victim.
Hlawnceu, you also said that you were drunk but you did make admissions regarding the rape of the victim. You told police that you were in company with Za Lian and the other alleged offender and said that your friends had raped the victim whilst you covered her mouth to prevent her from screaming.
Each of you were charged and then remanded in custody where you have remained.
The victim of your crime has suffered profoundly. She read to the court her victim impact statement. These events have transformed her life. She is no longer a happy-go-lucky person and she has lost all trust in the world. Her partner has now become her carer. She suffers the effects of post traumatic stress disorder including inability to sleep, nightmares, feelings of violation, hypervigilance, flashbacks and anxiety. She describes her life as being a hermit-like existence. Her inability to cope has impacted greatly upon all of her relationships. She is very wary and distrusting of people of Asian appearance and feels bad about that but cannot help how she feels. The stress has had a major impact upon her physical health. It has impacted upon the severity of her Type 1 Diabetes.
She is undergoing extensive counselling with a psychologist and Ms Rita Fegatilli, her psychologist, has provided a report of 7 May 2018 detailing the problems she has suffered as a result of the violent sexual trauma she underwent. The victim made particular reference to the two women who stopped and assisted her whom she believes saved her life. I too would like to commend the actions of those two women for their courage and assistance in supporting the victim.
I turn now to the personal circumstances of firstly, Mr Za Lian, and the submissions made on his behalf by Mr Anderson.
Mr Anderson, confirmed that rape is a serious offence and this undoubtedly is a serious example of this serious offence. He acknowledged that the offending occurred in company with two other males who used their collective strength to overpower a physically weaker and vulnerable woman. He acknowledged the injuries suffered and also the fact that the offending has had a profound effect on the victim.
He submitted that this was not the worst category of this offending but acknowledged that it did represent offending at a very serious level. I accept that submission.
He highlighted that you are a person who comes before the court without any criminal history. He accepted that a term of imprisonment and the setting of a non parole period was the only sentencing option available to the court.
You were born in Burma which is now known as Myanmar and you are of Chin ethnicity. Your family speak Hakka Chin and you are a Christian. Your immediate family consists of both your parents and a younger brother.
Your parents were poor subsistence farmers working in the rice fields in rural Burma. They were persecuted due to their ethnicity. Your schooling was disrupted by poverty, illness namely malaria and persecution. You studied until Year 9.
In 2010, together with your parents and younger brother, you fled your country and resettled in Malaysia where you were registered by the UNHCR. You resided there until 5 June 2013 on which date you arrived in Australia on a humanitarian visa aged 18 years.
Whilst in Malaysia you worked to assist with the support of your family.
For about three years until 2016 you worked at a meat processing factory in Brooklyn and then for two months at a meat processing factory in Cobram. When you were arrested you were working for a tiling company.
Mr Guy Coffey, clinical psychologist, prepared a report dated 23 April 2018 where he comprehensively detailed your background and history. He noted that your family is a close and harmonious family. Your parents are devout Christians and remain supportive of you.
He noted following your arrival in Australia, you settled in Melbourne. You have studied English classes for five months and have acquired basic literacy skills but your numeracy skills are poor.
He said there is no evidence that you experienced any sustained psychological disturbance whilst in Australia and there have been no reported symptoms suggestive of any mental disorder or psychological disorder. He noted that you were having some difficulty with sleeping since you had been incarcerated.
You have five hours of English classes twice a week in the prison. You play in the soccer team regularly. You have regular visits from parents and friends.
He says that you started drinking alcohol when you were 15 and at age 16 you were drinking daily. Your drinking increased following your grandmother's death. He said there was no question of abuse of drugs.
He could find no evidence to suggest you were suffering from a mental disorder at the time of the offending. He noted that the co-accused, Hlawnceu, was your close friend whom you have known since childhood.
He said that you have had harmonious and usually respectful relationships with woman in the past.
You were not able to give an account of how you and the other co-accused came to attack the victim. You claim to have no recollection of the attack because you were very intoxicated.
As was discussed during the plea hearing, I consider that explanation to be implausible having regard to the actions that constituted the offence. Those actions were with purpose and coordinated with the other two co-accused. Together you three men overpowered the victim, forcibly moved her to a place under the bridge where you were less likely to be detected, then you raped her whilst wearing a condom and then assisted your co-accused to rape her and made good your escape when disturbed by passers-by.
Mr Coffey estimated your functional intelligence to be below average but not at a level of intellectual disability.
When speaking with Mr Coffey you recognised and acknowledged your offending was morally repugnant and involved serious criminal behaviour. Notwithstanding you said that, you said also that you were very drunk and not in control of your full actions. He says you implied that because the crime was spontaneous and unplanned, it was therefore less grave. He states, most striking was your inability to comprehend the likely effect of the offending on the victim. You did not appear to reflect much empathy towards the victim.[1]
[1]I refer in particular to paragraph 56 of Mr Coffey’s report.
Mr Coffey stated that apart from your intoxication, no mental abnormality contributed to the offending. Nor does he believe there is any direct link between the undoubted hardships that you suffered before your arrival in Australia and the offending. In particular he said you were not suffering from any post traumatic mental disorder when you offended.
He was asked to consider whether any abnormality in psychosexual functioning may have attributed to the offending. He said that question could only be superficially examined in his assessment.
You denied any interest in sexual violence, any pattern of sexual arousal associated with violence, or any history of violence towards women including sexual partners. Mr Coffey said if this is accurate, it would appear that psychosexual characteristics did not contribute to the offending.
Overall, he considers your rehabilitative prospects reasonable. You require assistance to address your alcohol abuse and offence specific treatment is needed to assess whether you have any underlying disposition towards sexual violence and you also require some help to increase your capacity for victim empathy. A program of offence specific treatment is recommended to reduce your risk of future sexual offending. His comments about this aspect are conditional and I accept what he says but there is a real need for an appropriate risk assessment to be conducted and treatment to be received in order to reduce your likelihood of re-offending.
In sentencing you I must impose just punishment. I have taken into account all the matters put in mitigation.
You entered a plea of guilty at the earliest stage at committal mention. Your plea has real utility. You saved the community the time and cost of both committal and trial. Of great importance you spared the victim any further trauma of having to come to court to give evidence. Your sentence will be discounted and you have facilitated justice.
I accept the plea of guilty does show some remorse. In addition, you have expressed your sorrow for what you have done to your parents, your church pastor and other members of the church.
I have read the letters that have been provided to the court by those people. I accept their expressed opinion that the offending is out of character. I have, to an extent, tempered the remorse that you have expressed given what you have told Mr Coffey and his conclusions which I have accepted.
I have taken into account the fact that you have no prior criminal history and that you are otherwise a person of good character.
You are now 22. You are not a young offender but you are still relatively youthful and the principles that I must apply relating to youthful offenders, it is acknowledged that does reduce as age increases[2] but the need to emphasise rehabilitation is nonetheless still an important one. Because of my assessment of how serious your crime is, the weight to be given to principles relating to youthful offenders must be moderated.
[2]R v Mills (1998) 4 VR 235 at 241
I have applied the principles as set out in the case of R v Azzopardi & Ors,[3] where the Court of Appeal reaffirmed the principles stated in R v Mills by Batt JA. There the Court further considered when those principles may yield to considerations of general deterrence.
[3][2011] VSCA 372
His Honour, as he then was, Justice of Appeal Redlich stated:
“The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.”[4]
[4](ibid) at [44]
As a consequence of your conviction and sentence in respect to this very serious offending, your migration status will be affected. In the event that you are sentenced to serve more than 12 months’ imprisonment you will automatically fail the character test under the Migration Act and the Minister must cancel your visa.[5] The Minister has discretion to revoke this decision but that requires the exercise of the Minister's discretion.
[5]Section 501(3A), (6-7)
You have received advice that you will not be deported back to your country of origin without your consent given your refugee status. Following expiration of your sentence, you will be entitled to seek for the Minister to exercise his discretion to reinstate your visa. The process may take years and you will be held during this time in immigration detention.
I had regard to the uncertainty that you will face regarding your situation in terms of your migration status and accept that it will increase the burden of imprisonment upon you. This is great in your situation where you aspired to make Australia your home and your immediate family members now have such strong ties to the Australian community.[6]
[6]Konomala v R [2016] VSCA 48, Da Costa Junior v R [2016] VSCA 49, Schneider v R [2016] VSCA 76
I turn now to the personal circumstances of Mr Hlawnceu.
You were 20 at the time of the offending and you are now 21. You are the youngest of the three male offenders. As such you are a youthful offender.
You were born in the Chin State in Western Myanmar and you too belong to the Hakha Chin community. You are the youngest of three sons. Both your older brothers have resettled in Australia and your parents remain in Myanmar.
In 2001 when you were aged 14 you fled with an older brother to Malaysia. Your other brother followed and you all received refugee status in Malaysia and resettled in Australia in 2015 when you were 18.
You then lived with your brother and a cousin in Werribee. You too have limited education, work and life skills and speak rudimentary English.
Before you were arrested you worked at JBS Australia, a meat processing factory in Brooklyn. You mixed in a limited circle with family, friends and members of the small Chin community in Melbourne. You have never had an intimate relationship.
You have the support from family and relatives and church members who were all present at the plea hearing.
You too can offer no real explanation for why it is that you participated in these rapes. You were also intoxicated. Notwithstanding that you were away from your friends when they approached the victim and she started to scream and tell them to go away you did not leave the scene. Instead you elected to assist them, forcibly moving her to under the bridge where they raped her in the manner that I have already described.
Ms Fallar submitted on your behalf that your intoxication contributed to your poor judgment and, in addition, misplaced or misguided loyalty to your friends. Whilst offering up an excuse of sorts it in no way excuses you for this offending.
It is of great concern that you participated in the manner described and your role was important in supporting the other two men in raping the victim.
I have taken into account all the factors put on your behalf in mitigation. You too entered a plea of guilty at the earliest opportunity. The plea is of real utility. You have facilitated justice and your sentence will be discounted accordingly.
It is of significance that you gave full and frank admissions in respect to the role that you played when the formal record of interview was conducted. You demonstrated insight into the offending and took full responsibility. I reject Ms Fallar's submission that had you made no admissions then there was a good chance that you may not have been found guilty at trial. The circumstantial evidence and other evidence linked you to the offending and I consider this was a strong Crown case.
True it is that the victim stated she had been assaulted by five men, however, the two bystanders who came to the assistance of the victim, noted they saw three men running from the scene and you were apprehended a short way away from the scene by police in company with two other men, one of whom, Za Lian, had had non-consensual sex with the victim and there was forensic evidence linking him to the offending.
Notwithstanding that I do think that you were genuinely remorseful. You did say that you were sorry and you acknowledged that what you did was wrong in the interview.
I accept when you were read the victim impact statement that you were visibly upset and sought to express sorrow for your role.
You have no criminal convictions and you too can rely on good character.
I have taken into account the principles applicable to youthful offenders but they are somewhat diminished because of the grave nature of the offending.
The principles of deterrence, just punishment and protection of the community mean the weight given to rehabilitation must be reduced.
Given that there has been no proper explanation for your participation there will be a need for you to undergo offence behaviour programs so as to reduce the risk of further offending and improve your rehabilitation prospects. Overall I do consider that you do have good prospects for rehabilitation and that is reflected by your remorse and full cooperation and early plea of guilty.
I accept that your time in prison has been and will continue to be very isolated due to your cultural and linguistic differences and your youth and inexperience of life generally.
You have not been able to access any programs whilst on remand.
Notwithstanding you say this offence occurred because you were intoxicated, you deny any alcohol problem. There are no drug issues, nor is there any report of mental illness.
Sai Lian Thang, your church pastor, provided a written reference that confirms you are a member of the Melbourne Chin Church and participate well in all activities. You are described as being quiet and shy but always helpful and reliable. I have had regard to his expressed opinion and I find also that this offending is out of character for you.
Ms Fallar submitted that an appropriate disposition would be a term of imprisonment with a short non parole period and highlighted the delay in this matter coming before the court which meant that you could not be considered as a suitable candidate for detention in a Youth Justice Facility.
Given the circumstances of your offending and the role that you played, I consider your role to be equal to the other two offenders. Given my view about the grave nature of the offending I do not consider that such a disposition would have been open.
I accept you are in the same situation as Mr Za Lian in terms of uncertainty surrounding your immigration status following your sentence. I accept in your circumstances that you too face the prospect of either deportation or indefinite detention and I have had regard to the anxiety that will cause you whilst undergoing sentence.
I have had regard to your age, admissions and co-operation at the time of your arrest. I do consider that there is some justification in imposing a slightly lesser sentence in respect to your offending as compared to Za Lian.
However, I view your culpability as being equal to the other two men. The victim was still on her feet and dressed when you first approached her. You participated in forcibly bringing her to the ground thereby through your actions facilitated and encouraged the acts of the two other men whilst they raped the victim. It is not known for sure but the time estimate of the offending is somewhere between 20 to 30 minutes.
Za Lian and Hlawnceu, this is a grave example of this serious sort of offending. By committing this rape in company it is a strong aggravating feature. This was a vicious and cowardly assault that was degrading and humiliating for the victim who was vulnerable, alone at night, in an isolated place away from assistance. You ignored her protests to be left alone You collectively abused the victim and exercised power and control over her in complete disregard of her personal integrity. This was a terrifying situation for the victim and you will be punished accordingly.
In sentencing you I must impose just punishment. I must emphasise both general and specific deterrence and on behalf of the community I formally denounce your behaviour. I must provide for your rehabilitation and also for the protection of the community.
Please stand.
I will deal firstly with Mr Za Lian. On the one charge of rape, you will be convicted and sentenced to eight and a half years’ imprisonment and I fix a non-parole period of six years.
In respect to Mr Hlawnceu, in respect to the one charge of rape, he will be convicted and sentenced to seven years’ imprisonment to serve five years non-parole period.
I have to now make a declaration about the sentence that would have been imposed if you had not pleaded guilty.
I make the following s.6AAA declarations. Mr Za Lian, but for your plea of guilty, I would have imposed a term of imprisonment of ten and a half years to serve eight years and in respect to Mr Hlawnceu, I would have imposed a term of imprisonment of nine years to serve seven years.
Finally, I make a declaration of pre-sentence detention. I declare that both Za Lian and Hlawnceu have served 282 days pre‑sentence detention and I direct that that be noted in the records of the court.
That concludes my sentencing remarks.
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HER HONOUR: Thank you. All right. So we can adjourn please.
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