| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0042 |
| SOPHEAP KHUN | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST, NIALL and ORR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 August 2024 |
| DATE OF JUDGMENT: | 23 October 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 246 |
| JUDGMENT APPEALED FROM: | DPP v Khun [2023] VCC 1257 (Judge Hogan) |
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CRIMINAL LAW – Appeal – Conviction – Rape by compelling sexual penetration and associated offences – Elements – Causation – In what circumstances accused will have ‘caused’ complainant to sexually penetrate themselves – Appeal allowed – Conviction set aside – New trial ordered.
CRIMINAL LAW – Appeal – Sentence – Recklessly causing injury – Guilty plea – Four months’ imprisonment manifestly excessive – Appeal allowed – Resentenced to be convicted and discharged.
Crimes Act 1958, s 39.
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| Counsel | |||
| Applicant: | Ms GF Connelly | ||
| Respondent: | Ms J Warren | ||
Solicitors | |||
| Applicant: | Nelson Brown Legal | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA:
Introduction
In May 2020, the applicant was in an intimate relationship with ‘SY’. He intermittently lived with SY and her three children in SY’s house, situated in a south-eastern Melbourne suburb.
On 16 May 2020, in circumstances I will later describe in more detail, the applicant told SY to put her finger into her vagina to prove that she had not had sex with another man. She did so. As a result, the applicant was subsequently charged with rape by compelling sexual penetration (and other charges).
Throughout November 2022, the applicant was tried in the County Court on an indictment that charged him with rape by compelling sexual penetration (charge 3), common assault (two charges – charges 1 and 4) and making a threat to kill (two charges – charges 2 and 5). On 24 November 2022, the jury empanelled to try him found the applicant guilty of rape by compelling sexual penetration and one charge of common assault (charge 4), but acquitted him of the other three charges.
Earlier, on 10 November 2022, the applicant had pleaded guilty to a charge on a ‘plea indictment’ of recklessly causing injury to SY on 13 November 2019. Following a plea in mitigation, on 21 July 2023 the trial judge sentenced the applicant to imprisonment on that charge, and the charges upon which he had been convicted at trial.[1]
[1]The judge sentenced the applicant to two years’ imprisonment on charge 3, rape by compelling sexual penetration; 22 months’ imprisonment on charge 4, common assault; and four months’ imprisonment on the charge of recklessly causing injury. Twelve months of the sentence for common assault, and two months of the sentence for recklessly causing injury, were ordered to be served cumulatively upon each other and the sentence on charge 3. The total effective sentence was thus three years and two months’ imprisonment, upon which the judge fixed a non-parole period of two years and two months.
The applicant now wishes to challenge his conviction (and sentence). In order to do so, he needs…
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- AGLC
- Sopheap Khun v The King [2024] VSCA 246
- Case
- [2024] VSCA 246
- Decision Date
CaseChat Overview and Summary
The primary legal issue in this case was whether the trial judge's directions on consent had caused a substantial miscarriage of justice, thereby invalidating the applicant's conviction. Additionally, the court considered whether the applicant's sentence for recklessly causing injury was manifestly excessive. The Court of Appeal needed to determine if the applicant's conviction and sentence should be upheld or if a new trial was warranted.
The Court of Appeal found that while the trial judge's directions on consent did not occasion a substantial miscarriage of justice, there was still a need for careful attention to be given to the appropriate directions on consent in any retrial. Regarding the sentence, the Court of Appeal deemed the four-month imprisonment manifestly excessive for the offence of recklessly causing injury. Consequently, the Court of Appeal allowed the applicant's appeal on the ground of the excessive sentence and set aside the conviction, ordering a new trial.
The final orders of the Court of Appeal were to quash the applicant's conviction, order a retrial, and to resentence the applicant for the offence of recklessly causing injury to be convicted and discharged.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
As I have indicated, the offence created by s 39(1) replaced previous offences created by two previous provisions of the Crimes Act 1958, s 38(3) and s 38A, both of which had been introduced into the Crimes Act 1958 by the Crimes (Sexual Offences) Act 2006. Before its repeal, s 38(3) provided:(3) A person (the offender) also commits rape if he or she compels a person— (a) to sexually penetrate the offender or another person, irrespective of whether the person being sexually penetrated consents to the act; or (b) who has sexually penetrated the offender or another person, not to cease sexually penetrating the offender or that other person, irrespective of whether the person who has been sexually penetrated consents to the act.And s 38A was in the following terms:38A Compelling sexual penetration (1) A person must not compel another person to take part in an act of sexual penetration. Penalty: Level 2 imprisonment (25 years maximum).(2) A person (the offender) compels another person (the victim) to take part in an act of sexual penetration if— (a) the offender compels the victim to introduce (to any extent) an object or a part of his or her body into his or her own anus or, in the case of a female victim, her own vagina, other than in the course of a procedure carried out in good faith for medical or hygienic purposes; or (b) the offender compels the victim to take part in an act of bestiality within the meaning of section 59. (3) For the purposes of subsection (2), a person compels another person (the victim) to take part in an act of sexual penetration if the person compels the victim (by force or otherwise) to engage in that act— (a) without the victim’s consent; and (b) while— (i) being aware that the victim is not consenting or might not be consenting; or (ii) not giving any thought to whether the victim is not consenting or might not be consenting. Neither ‘compel’ nor ‘compels’ were defined for the purposes of ss 38(3) or 38A, although s 38A(3) contemplated that a person might compel a person to engage in an act of sexual penetration ‘by force or otherwise’. Presumably, therefore, the verb compel was to be given its ordinary English meaning, which, according to the Oxford English Dictionary includes:To urge irresistibly, to constrain, oblige, force: a. a person to do a thing (the usual [construction]). Before endeavouring to construe s 39(1) in its current form, I note that the author (or authors) of the publication, Victoria’s New Sexual Offence Laws: An Introduction, published by Criminal Law Review Department of Justice and Regulation, relied upon by the respondent,[11] apparently considered that s 39(1) criminalises essentially the same conduct as its legislative forerunners:[12]This offence covers conduct that was previously covered by old sections 38(3) and 38A of the Crimes Act, even though the essence of the offending conduct is the same: making another person perform an act of sexual penetration without consent.[11]See [43] above. See also [22].[12]See p 7 [3.2].