DPP v Chen [2020] VCC 385

12-year-old pussy', although she was 14. While you were having sexual intercourse with another girl you asked her to tell you she was 12 years old. She refused. When you were communicating with the girls and their facilitators you expressed a desire for 'good girls, clean girls, girls with small boobs, skinny girls, not chubby girls, innocent girls and young virgins', who nevertheless would be willing to do everything.

94. You paid the girls modest sums of money, which were no doubt large in their eyes, for sex. You expected lengthy sex sessions with them. Some of your film captures sex acts which went for more than ten minutes. At one time you said to one girl 2000 pesos, approximately AUD$52, was a fair normal rate.
95. You indicated to another you would pay 1800 pesos for a three to four hour sex session. You paid larger sums to girls who stayed with you for days at a time. Even though you were getting cheap sex you haggled with others over prices. When one girl told you, she needed money for school you told her it was not nice to ask for money all the time.
96. As I said before, another girl, who told you she was in Year 8 at school, agreed to meet you for sex and in a message, she wrote, 'Don't say I'm a good girl. No choice. My mother has breast cancer. My virginity is pay me'.
97. In December 2013 you paid her 23,800 pesos, approximately AUD$618, for seven days she spent with you for sex.
98. Five of the girls you used as facilitators were victims of your crimes. You engaged in acts of sexual intercourse with them when they were 16 and 17 years old and filmed them.
99. You paid commissions to the three facilitators who found you nine children for sex. In 2012 you told one facilitator you would pay 2000 pesos, about AUD$51, for a girl who stayed overnight with you. In 2016, you told another you would give the girls 1800, about AUD$46, and you would give her, the facilitator, '300 (about AUD$8) for every new girl'.
100. You had communicated with the girls and their facilitators using Facebook and SMS. One girl was concerned you might sell the pictures and videos which you had taken on the internet. It appears you stored them only as a personal record.
101. Victim 14 made a pithy victim impact statement. She was a victim of your persistent sexual abuse. In 5 separate episodes, during three trips to the Philippines, over a period of 11 months, you engaged in acts of sexual intercourse with her when she was 14 and 15 years old.
102. Additionally, on a further seven occasions, you engaged in sexual activity, including acts of sexual penetration, with her after she turned 16 years old. You also filmed and photographed your abuse of her.
103. She wrote, simply, she was a school student when you abused her, she said she was quiet and reserved before she met you but then changed and followed the crowd. She feels uneasy and restless after what happened with you. Sometimes, when she remembers your abuse, she avoids her partner.
104. When police interviewed you, you were evasive in your answers.
105. When they asked you about the use of your Facebook account to procure children overseas for sexual activity you said you feared someone else may have been using it.
106. You described yourself as an animal lover and said you used your Facebook account to watch dogs and animals. When you were asked about one of the victims you communicated with on Facebook you described her as your girlfriend. You said you met her in Manila about three or four years earlier, that she stayed with you and, although your relationship had ended, you continued to send her money to help her.
107. When asked about your visits to the Philippines you said they were personal trips.
108. You were charged with a very large number of offences and released on bail.
109. On 20 February 2019 you were committed to stand trial following a straight hand up brief committal where you did not test or contest any of the prosecution evidence.
110. Shortly prior to committal, you indicated an intention to plead guilty and, after lengthy discussions, the charges which are on this indictment were agreed.
111. You have no criminal convictions.
112. I turn now to your personal circumstances.
113. Mr Johnson, who with Ms Ballard, appeared on your behalf, told me you were born on 9 October 1967 in Ho Chi Minh City to Chinese parents. Your father was part owner of a clothing factory. You are the youngest of ten children.
114. When you were about six years old, the Vietnamese regime imprisoned your father and, after he agreed to forfeit his assets to the government, he was released. In 1978, your father and mother fled with you to Taiwan. In 1980, two of your older sisters who had also escaped Vietnam by boat to Indonesia were granted asylum in Australia as refugees.
115. Your mother died while you were in Taiwan. In 1984, your sisters sponsored your father and you to Australia.
116. Your sisters supported you, quietly and patiently, in court.
117. You are hard working. With no English, you completed two years of secondary school at evening classes and then obtained a degree in accounting and business management at Victoria University.
118. You have a good employment history. Initially you worked in hospitality and then as a municipal clerk. Subsequently you worked as a flight attendant for an international airline company. Around 2000 you obtained Australian citizenship.
119. In August 2017, after 22 years' service with the airline, you took a redundancy package. You bought a house, but the mortgage is in arrears and the property will have to be sold. You have lost contact with your work colleagues and friends, but your family continue to support you.
120. I received references from one of your sisters and her husband. Your sister described you as emotionally challenged and imbalanced as a result of your traumatic exodus from Vietnam, your mother's long illness and her subsequent death, and bullying of you at school. She said you lacked a role model in your formative years
121. Your brother-in-law described you as devoted to your parents and helpful to everyone in the family. He said you have shown a deep level of shame and remorse for your offending and have accepted responsibility for your actions.
122. I received a medical report, dated 18 June 2019, from Mr Ivan Bashkar. You have been diagnosed with an acute lumbar disc prolapse. You may require surgery to ameliorate the symptoms.
123. On 17 October 2019 you were charged with an offence of attempting to import a sex doll into Australia. Mr Johnson told me that charge is disputed.
124. When you were charged, your bail in respect of these charges was revoked and, after six days at Melbourne Assessment Prison, you were transferred to Hopkins Unit at Ararat Prison. To reward your good behaviour there you have since been transferred to the less restrictive Wimmera Unit.
125. Because you have limited English there are few programs available to you on remand, but you have completed the courses offered to you so far. Family members visit you weekly.
126. In comprehensive and helpful written and oral submissions Mr Johnson acknowledged your offending is undeniably serious and must attract a lengthy prison term.
127. He properly acknowledged your offending was to varying degrees prolific and protracted, that you exploited the social and demographic vulnerability of young girls, who were in no position to meaningfully consent to sexual activity with you, and you harmed them.
128. He submitted, in assessing the objective gravity of your offending, regard must be had to the absence of several aggravating features, namely you did not disseminate any of the child pornography material you produced, you did not use it to coerce the children to engage in sexual activity with you, you did not show it to them at all, you made no threats of self-harm or harm to others if your demands were not met, you were not in a supervisory position of a family member or employer and you did not use any implements or devices such as a vibrator in your offending.
129. True enough these aggravating features, present in other cases, were not present in your offending. On the other hand, these points of distinction should not be overstated.
130. Mr Johnson conceded in cases so grave as yours, general deterrence and protection of the community, particularly children, are the prime sentencing factors and that limited weight is to be given to your personal circumstances.
131. Nevertheless, in mitigation of penalty, he relied on:
132. Firstly, your lack of any criminal history,
133. Secondly, your plea of guilty for its significant utilitarian value in saving the community an otherwise lengthy and distressing trial, and its demonstration of your acceptance of responsibility and willingness to facilitate the course of justice.
134. Thirdly, the delay of nearly three years, not attributable to you, between your arrest and the prosecution of the charges against you, during which you have faced the uncertainty of your fate; and
135. Fourthly, that the burden of a lengthy term of imprisonment, which you inevitably face, will be more burdensome because of the risk that your older sisters, who are your only family, will die while you are incarcerated.
136. I accept they are mitigating factors and will take them into account to moderate your sentence, albeit in the limited way in which the law allows.
137. Mr Johnson also relied on the principle of totality given the large number of sentences for which you are to be sentenced to avoid a crushing sentence. I will be mindful, by the orders I make for cumulation and concurrency, to ensure your overall sentence is just and appropriate for the whole of your offending.
138. On 27 March Mr Ralph made a further submission that the effects of the COVID-19 virus, a global pandemic, will make prison more burdensome for you in two respects, namely the hardship of increased prison restrictions, including suspension of prison visits and programs, and the worry and uncertainty you have for your older sisters who live in Melbourne where the rate of transmission of the virus is escalating in the community daily.
139. The issue has been very recently considered by Justice Lasry in a bail application, Re Samatha Broes [2020] VSC 128, and the Court of Appeal in R v Brown [2020] VSCA 60. On 23 March 2020 the Court of Appeal said at paragraph 48:

'We are hesitant to express a general statement of principle regarding how this court and others should deal with this crisis as regards to its effect upon relevant sentencing principles. We do accept however that the situation is causing additional stress and concern for prisoners and their families as it is for every member of the community. The extent to which that may be taken into account if at all will be a matter to be resolved on the particular facts of any individual case.'

1. I accept and consider the current public health crisis, for so long as it continues, which of itself is uncertain, will make your incarceration more onerous in the two respects Mr Ralph contended. However, where the offending is very serious, as yours is, it is not a factor that looms large in the sentencing synthesis.
2. Ms Breckweg, who appeared for the Crown, in full and thorough written and oral submissions, submitted your offending was extremely depraved and serious because you offended against 26 young girls, aged between 13 and 17 years, over a seven year period, which occurred during 25 separate trips to the Philippines, and your offending against them involved 33 separate charges of five different types of child sex offences outside Australia, some of which were rolled up counts involving a number of individual sex crimes.
3. In assessing the seriousness of your offending, she pointed to the following abhorrent features of your crimes.
4. You had a clear sexual interest in female children an interest in female children aged from 12 to 14 years.
5. You engaged in gross sexual activity with young girls, including having them adopt pornographic poses, partly clothed and sometimes naked, and you performing acts of oral, vaginal and anal penetration and masturbation with them and ejaculating on their faces or in their mouths.
6. At times, you ignored their feelings of reluctance and discomfort during sexual activity with you.
7. You filmed your sexual activity with them, sometimes with several cameras and sometimes despite their hesitation and embarrassment.
8. You had the girls participate in multiple sexual acts with you over long sessions, sometimes days, and, in the case of some victims, abuse over a period of years.
9. You engaged in sexual activity with one girl who appeared to be asleep.
10. You engaged in sexual activity with some girls in the presence of another girl.
11. You used young women, some still teenagers who had been your victims as facilitators to replenish your pool of victims with younger girls as time passed.
12. She acknowledged:
13. Firstly, your guilty plea has high utilitarian value and is demonstrative of a willingness to facilitate the course of justice and a degree of acceptance of responsibility for your actions. She submitted, other than your guilty plea, there is little evidence of remorse.
14. Secondly, the principle of totality applies in your case, but she submitted that some degree of cumulation between counts is warranted to reflect the separate and different forms of your offending against individual victims.
15. I accept the force of her submissions.
16. In addition, she submitted your prospects of rehabilitation must be assessed unfavourably because of the lengthy, copious and persistent nature of your offending. While they are factors which indicate I should be guarded about your prospects of rehabilitation I am not prepared to conclude your prospects of rehabilitation are poor.
17. The Crown provided me with a table of relevant sentencing principles derived from the following cases. R v Revo [2012] VSCA 111, Commonwealth DPP v Beatty [2017] NSW CCA 301, R v Merrill [2018] VSCA 62, R v McNeice [2018] VSCA 186, a leave application of Appeal Justice Whelan, R v Hawke [2018] VSCA 287, a leave application heard by Justice of Appeal Ashley, R v Konsavitski [2020] VSCA 41, a decision of Justice Champion and R v Baden [2020] NSW CCR 23.
18. I have read the cases and, making adjustments for the differences between the circumstances in those cases and yours, I have used them as a yard stick to measure the sentences I will impose.
19. Mr Johnson acknowledged because of the high number of victims and lengthy period of your offending the objective seriousness of your crimes is greater than in the other cases, save for Konsavitski.
20. He sought to distinguish Konsavitski's offending as more serious taking into account Konsavitski was sentenced for 59 child sexual offences, including one of maintaining a sexual relationship with a male child under 16 years in Victoria, that his offences were committed upon 43 child victims, in 47 separate incidents, over a period of 15 years, in Australia and three Asian countries, on occasions involving group sex with children and sexual penetration of sleeping victims.
21. Justice Champion, at [8] described Konsavitski's offending as, 'the worst level and type of such offending (he has) seen and is shocking'.
22. I do accept your offending was significantly less in its scale than Konsavitski's.
23. Nevertheless, it was extremely serious offending.
24. It was prolific and protracted. Your moral culpability is high. You planned your offending. It seems your work-related travel provided you with an opportunity to commit these crimes, and you did.
25. The objective of division 272 of the Criminal Code (Cth) is to implement Australia's international obligations to protect vulnerable children from sexual abuse and exploitation by Australians travelling overseas for child sex tourism.
26. The sentencing principles are well established.
27. Child sex crimes are especially grave and demand substantial penalties because:
28. Firstly, children cannot meaningfully consent to sexual activity.
29. Secondly there is a clear presumption of harm, including future harm being inflicted upon them.
30. Thirdly, they are vulnerable to predatory advances due to their immaturity.
31. Fourthly, they are ill equipped to deal with an adult's attempt to foster a sexual relationship with them; and
32. Fifthly because they are unable to protect themselves or respond appropriately, they require protection from being criminally sexualised.
33. In addition, because children are entitled to the protection of the law, and because offending of this type is difficult to detect, general deterrence and denunciation are paramount considerations and personal factors, such as lack of prior offending and age, must be given less weight.
34. The fact that you are now 52 years old and have no criminal record is less significant in the sentencing synthesis. In view of your persistent offending over a lengthy period specific deterrence is also an important consideration in your case.
35. In the absence of any psychological evidence I must approach the assessment of your prospects of rehabilitation with caution. I am unable to conclude that you have good prospects of rehabilitation but, on the other hand, I cannot say they are unfavourable.
36. Your rehabilitation will be closely linked to your response to the treatment that you will receive while you are imprisoned. I hope you will engage with the people who can assist you with your rehabilitation.
37. Mr Chen, I will now announce the sentences that I will impose. There are 35 charges, as you appreciate, and I will provide each of Ms Breckweg and Mr Ralph with a table that I will be reading from to enable them to follow what I am saying.
38. On Charge 1, produce child pornography material outside Australia contrary to s.273.5(1) of the Criminal Code, you are sentenced to four years' imprisonment and I direct that three months of this sentence be served cumulatively with the sentence on Charge 23 to commence on the completion of the sentence imposed on Charge 23.
39. On Charge 2, import tier 2 goods contrary to s.233BABA (5) of the Customs Act 1901 you are sentenced to one year and nine months' imprisonment to commence on 30 June 2020.
40. On Charge 3, produce child pornography material outside Australia, you are sentenced to five years' imprisonment and I direct four months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 1.
41. Charge 4, encourage an offence against division 272 of the Criminal Code, you are sentenced to four years and six months' imprisonment and I direct that two months of the sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 3.
42. On Charge 5, engage in sexual intercourse with a child while outside Australia, contrary to s.272.8(1) of the Criminal Code you are sentenced to six years' imprisonment and I direct that six months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 4.
43. Charge 6, encourage an offence against division 272 of the Criminal Code, you are sentenced to four years and six months' imprisonment and I direct that two months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 5.
44. Charge 7, engage in persistent sexual abuse of a child outside Australia by committing offences against s.272.8(1) and s.272.9(1) of the Criminal Code on three or more occasions contrary to s.272.11(1) of the Criminal Code you are sentenced to eight years' imprisonment and I direct 12 months of this sentence be served cumulatively with the sentence on Charge 23 to commence on the completion of the sentence imposed on Charge 6.
45. Charge 8 produce child pornography material outside Australia, you are sentenced to five years' imprisonment to commence on 30 June 2020.
46. Charge 9, procure a child to engage in sexual activity outside Australia, contrary to s.272.14(1) of the Criminal Code you are sentenced to four years' imprisonment and I direct that two months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 7.
47. On Charge 10, engage in sexual intercourse with a child outside Australia, you are sentenced to six years' imprisonment and I direct that six months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 9.
48. On Charge 11, produce child pornography material outside Australia, you are sentenced to four years' imprisonment and I direct that three months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 10.
49. On Charge 12, procure a child to engage in sexual activity outside Australia, you are sentenced to four years and six months' imprisonment and I direct that three months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 11.
50. On Charge 13, encourage an offence against division 272 of the Criminal Code, you are sentenced to five years' imprisonment and I direct three months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 12.
51. On Charge 14, produce child pornography material outside Australia, you are sentenced to four years' imprisonment and I direct three months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 13.
52. On Charge 15, encourage and offence against division 272 of the Criminal Code you are sentenced to four years' imprisonment and I direct two months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 14.
53. On Charge 16, encourage an offence against division 272 of the Criminal Code, you are sentenced to four years' imprisonment and I direct two months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 15.
54. On Charge 17, encourage an offence against division 272 of the Criminal Code, you are sentenced to five years' imprisonment. I direct three months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 16.
55. On Charge 18, produce child pornography material outside Australia, you are sentenced to five years and six months' imprisonment and I direct four months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 17.
56. On Charge 19, engage in persistent sexual abuse of a child outside Australia, you are sentenced to eight years' imprisonment and I direct 12 months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 18.
57. On Charge 20, produce child pornography material outside Australia, you are sentenced to five years' imprisonment to commence on 30 June 2020.
58. On Charge 21, engage in sexual intercourse with a child while outside Australia, you are sentenced to six years' imprisonment and I direct six months of this sentence be served cumulatively with the sentence on Charge 23 to commence on completion of the sentence imposed on Charge 19.
59. On Charge 22, produce child pornography material outside Australia, you are sentenced to 4 years imprisonment and I direct 3 years of the sentence be served cumulatively with the sentence on charge 23 to commence on completion of the sentence imposed on charge21.
60. On Charge 23, which is your base sentence, engage in persistent sexual abuse of a child outside Australia, you are sentenced to eight years' imprisonment to commence on 30 June 2020.
61. On Charge 24, produce child pornography material outside Australia, you are sentenced to five years' imprisonment to commence on 30 June 2020.
62. On Charge 25, produce child pornography material outside Australia, you are sentenced to four years' imprisonment and I direct that three months of this sentence be served cumulatively with the sentence imposed on Charge 23 to commence on completion of the sentence imposed in Charge 22.
63. On Charge 26, produce child pornography material outside Australia, you are sentenced to four years' imprisonment and I direct three months of this sentence be served cumulatively with the sentence imposed on Charge 23 to commence on completion of the sentence imposed on Charge 25.
64. On Charge 27, engage in sexual intercourse with a child while outside Australia, you are sentenced to six years' imprisonment and I direct six months of this sentence be served cumulatively with the sentence imposed on Charge 23 to commence on completion of the sentence imposed on Charge 26.
65. On Charge 28, engage in sexual intercourse with a child while outside Australia, you were sentenced to six years' imprisonment and I direct six months of this sentence be served cumulatively with the sentence imposed on Charge 23 to commence on completion of the sentence imposed on Charge 27.
66. On Charge 29, encourage an offence against division 272 of the Criminal Code, you were sentenced to four year's imprisonment. I direct two months of this sentence be served cumulatively with the sentence imposed on Charge 23 to commence on the completion of the sentence imposed on Charge 28.
67. On Charge 30, engage in sexual intercourse with a child while outside Australia, you were sentenced to six years' imprisonment. I direct six months of this sentence be served cumulatively with the sentence imposed on Charge 23 to commence on completion of the sentence imposed on Charge 29.
68. On Charge 31, produce child pornography material outside Australia, you were sentenced to four years' imprisonment. I direct that three months of this sentence be served cumulatively with the sentence imposed on Charge 23 to commence on completion of the sentence imposed on Charge 30.
69. On Charge 32, encourage an offence against division 272 of the Criminal Code, you were sentenced to four year's imprisonment. I direct two months of this sentence be served cumulatively with the sentence imposed on Charge 23 to commence on completion of the sentence imposed on Charge 31.
70. On Charge 33, engage in sexual intercourse with a child whilst outside Australia, you were sentenced to six years and six months' imprisonment. I direct eight months of this sentence be served cumulatively with the sentence imposed on Charge 23 to commence on completion of the sentence imposed on Charge 32.
71. On Charge 34, procure a child to engage in sexual activity outside Australia, you were sentenced to four years and six months' imprisonment. I direct three months of this sentence be served cumulatively with the sentence imposed on Charge 23 to commence on completion of the sentence imposed on Charge 33.
72. On the State charge, Charge 35, knowingly possess child pornography contrary to s.70(1) of the Crimes Act (Vic), you are sentenced to one year and nine months' imprisonment.
73. Mr Chen, for the State offence, you are sentenced to one year and nine months' imprisonment and I intend that three months of that sentence should be served cumulatively with the sentences I have imposed on the federal charges.
74. Your base sentence for the federal offences is eight years' imprisonment, Charge 23.
75. By the orders I have made for cumulation, I intend your overall sentence for the 34 federal offences is 18 years and three months' imprisonment and I order that you serve 13 years and 9 months of the sentence before you are eligible for parole.
76. Your total effective sentence, for all 35 charges, is 18 years and 6 months imprisonment from today's date. You will not be eligible for parole before 14 years (less your presentence detention) from today's date.
77. Because you have pleaded guilty, I have imposed a less severe sentence upon you. I must make a s.6AAA declaration in respect of the state offence. Although the position is not clear in respect of the federal offences, I will make a similar declaration. I declare that but for your plea of guilty I would have sentenced you to three years' imprisonment with a non-parole period of two years and three months for your state offending and I would have sentenced you to 24 years' imprisonment with a non-parole period of 20 years for your federal offending.
78. I declare you have served 150 days of your sentence by way of pre-sentence detention.
79. Finally, Mr Chen, you stand convicted of 13 registrable class 1 offences and 22 registrable class 2 offences under the Sex Offenders Registration Act (Vic). Under the Act you are now a registrable offender and you must comply with your reporting conditions of part 3 of the Act for the rest of your life.
80. You must report your personal details to Victoria Police within seven days and you have an ongoing obligation to report your personal details to Victoria Police each year thereafter and to report any change of your personal details during that time. It is an offence punishable by a term of imprisonment to fail without reasonable excuse to comply with your reporting obligations. You will be given a written notice of your reporting obligations and the consequences that may arise if you fail to comply with these obligations. When you receive that notice you will be asked to sign an acknowledgement that you have received it.