DPP v Dat

4. You were living at your mother's home where Ms Pham had previously lived before the separation.

1. In about mid June 2018, Ms Pham went to your address to collect some belongings. You were present and alone. You repeatedly pushed Ms Pham against a wall.
2. In the upstairs bathroom you pushed Ms Pham to the floor and started touching her body and tried to undress her. Ms Pham attempted to resist and tried to push you away. She told you she did not want to have sex. You replied 'You are my wife and I can have sex with you whenever I want to'. You put your fingers in her vagina a few times over a period of 10 to 15 minutes. It is these facts that relate to Charge 1, rape.
3. As a result of the incident Ms Pham had bruises to her upper arms, back, buttocks and thighs. She took painkillers but did not seek medical assistance.
4. In a record of interview with police on 5 September 2018, you admitted the act of digital penetration. You admitted that you were aggressive, pulled

1. In August 2018, Ms Pham was living in a bungalow at the rear of her address and had been there for about two months. She did not tell you where she lived and told you not to come to her home. You however, discovered where she was living. On several occasions Ms Pham saw you in the vicinity and on one occasion she spoke to you and told you to stop coming. She felt unsafe living there.
2. On Friday 31 August 2018, Ms Pham was asleep in her bungalow. She went to bed just before midnight and was sharing her bed with the children. At about 1 am, you opened an unlocked sliding door and entered the bungalow. Ms Pham woke up.
3. You approached Ms Pham in her bed, lifted the blanket and began touching her. She said 'I don't want to' and tried to push you away. You pulled her pants down and touched her vagina. Ms Pham resisted however you climbed on top of her. Your daughter woke and you told her to go back to sleep.
4. Ms Pham repeatedly told you to leave. You said you would leave if she let you have sex with her. She refused. You then dragged her to the couch in the lounge and again pulled down her pants. You lifted her top and kissed her nipples. Ms Pham told you it was hurting and told you to stop. You forced her legs apart and kissed her vagina. Ms Pham pushed you away with her legs. You put a finger in her vagina for a few seconds which Ms Pham said hurt a lot. She continued to struggle and was able to stand up and pull up her pants. It is these facts that relate to Charge 2, rape.
5. You then removed your pants and pushed Ms Pham to the floor. She kicked you in the stomach and physically resisted as you attempted to put your penis in her vagina. She continued struggling and you eventually gave up. You both dressed and talked about the children's school.
6. You went to Ms Pham's bedroom and locked yourself inside for half an hour. You eventually unlocked the door and let Ms Pham in. You both continued talking and you told Ms Pham that wherever she goes you will keep following her. She told you to go home but you again said you would not go home until she had sex with you. You again pulled down her pants and then dragged her down the hallway.
7. Ms Pham heard her daughter yell out 'stop'. She struggled to get out of the bungalow but was held back and you pushed her to the ground. You both struggled and you said to Ms Pham 'if you tell the police you are not done with me'. Ms Pham states that she was scared as a result of your comment.
8. Eventually Ms Pham broke free and ran out on to the street yelling 'help'. She knocked at the door of the main house at the front of the property and spoke to the occupants Rachel Nam[3] and Kara Dinh[4]. At 4.05 am, Ms Dinh rang 000 and requested police. The occupants observed that Ms Pham did not have any pants on.
9. You left the address and sent a series of messages and rang Ms Pham a number of times between 4.12 am and 1.29 pm.
10. At 4.18 am uniform police attended at the address and spoke to Ms Pham with the assistance of Kara Dinh who translated on behalf of Ms Pham.
11. At about midday Ms Pham was examined by a Forensic Medical Officer.

Dr Ramsay found no visible injuries but some areas of tenderness to touch.

12. On 5 September 2018, police arrested you at your home. In a record of interview with police later that day, you admitted attending Ms Pham's address on 1 August 2018 and said you went there to see the kids and give

Ms Pham a school enrolment form. You stated that you went in the unlocked door and approached Ms Pham but claimed to have told her that you wanted to see the kids. You claimed that Ms Pham 'seduced' you but admitted that when you were on top of her on the floor she said 'no' but you said 'it wasn't that loud and she wasn't resisting that hard'.

13. You said you kissed her breasts and that when she was on the couch you gave her 'oral' and 'fingered her'. You claimed Ms Pham consented and was 'enjoying it'. You said you were 'lubing up' but barely had an erection. You also claimed that she had a box cutter and threatened to attack you. You said that Ms Pham had run out of the bungalow without pants on.

1. The crime of rape is by its nature a serious offence which is reflected in the maximum penalty of 25 years imprisonment.
2. On two separate occasions you digitally penetrated the victim in circumstances where, by her words and actions, she clearly conveyed to you that she did not wish to engage in any sexual activity with you.
3. On your own admission, on the first occasion you said that you were aggressive, and that Ms Pham resisted you. In a misguided, disrespectful and offensive manner you said to Ms Pham that she was your wife and that you could have sex with her whenever you wanted.
4. In relation to the second occasion you were even more aggressive, physically forcing the victim's legs apart before sexually assaulting her, causing her pain. Following that rape, after calming down for a period of time, you again became aggressive, demanding sex, pulling the victims pants down again, dragging her down the hallway and ultimately threatening her if she told police. Ms Pham ran from the house without her pants in order to escape you.
5. What is disturbing is that after the first incident, where you admit you were aggressive and well aware that Ms Pham was not interested in sexual activity with you, you returned some two and a half months later and, in more disturbing circumstances where your children were present, you again aggressively sexually assaulted Ms Pham and remained in her home for some hours following.
6. In assessing the nature and gravity of your offending, I acknowledge that in relation to Charge 2, there are other acts which took place both before and after the circumstances that give rise to Charge 2. This conduct forms part of the narrative and is included in the prosecution opening to put the offences in their proper context. However, in accordance with well established authority, I take into account all the circumstances surrounding the offence itself, but I do not take into account circumstances which could have been made the subject of a separate charge.[5]
7. While in my view Charge 2 is more serious than Charge 1 for the reasons outlined above, both charges are serious examples of rape.

1. Ms Pham prepared a victim impact statement which was tendered and read at the plea by the prosecutor.
2. Ms Pham speaks of the emotional effect your crimes have had on her and her family. She notes that she has had difficulty sleeping and continues to feel fear. She speaks of the physical pain she has suffered directly as a result of the sexual assault. More generally, Ms Pham states that her day to day life as a single mother is made more difficult as a result of the emotional impact your crimes continue to have on her. She has little family support in the community and states that since the incident, she spends most of her time in doors, stating: 'I like to sit in my room with the door locked and cover myself with a blanket as I am fearful that somebody is going to come and hurt me'.
3. I have taken the contents of Ms Pham's victim impact statement into account.

1. You are 39 years of age. You are the eldest in a sib ship of seven. One of your younger brothers died soon after birth and another brother died at the age of five as a result of a serious illness.
2. You migrated from Vietnam with your parents when you were aged one. Your parents worked hard operating a textile factory. You state that you rarely saw your father as child and you describe him as stoic and hard. You report that you have remained close to your other siblings.
3. You completed Year 12 and then enrolled in a double degree in arts and architecture. You undertook three years of that degree but failed to complete it.
4. You first began work for your parents in their textile business at age 13. You worked most days after school and looked after the business at age 16 when your parents travelled overseas. Following university, you engaged in various employment including manual labour in a warehouse, drafting for architectural firms and driving earthmoving equipment. You lost your job with the landfill company you were working for in 2017 as result of your manager suspecting you of using drugs.
5. You met your wife Lieu Pham, the victim in this matter, in Vietnam in 2008 and married in 2009. You brought Ms Pham to Australia in 2010 and, as noted above, you have two children together now aged six and eight.
6. You report that from 2016, you and your wife would often separate and that you would return to your parents who lived nearby. You report that when you finally were gaining control of your drug use, you discovered that your wife had been dating another man for about two years and in June 2018, following a family trip to Vietnam, Ms Pham told you she was unhappy and wanted to separate. Shortly after this, while Ms Pham was collecting some items from the house, the first incident occurred. Ms Pham took the children with her and moved to a bungalow where the second incident occurred.
7. As a result of the offending, an intervention order was put in place preventing you having any contact or communication with Ms Pham and the children. That order is in place until October 2023 and as such, you have not communicated with your children since your arrest.
8. You began using heroin as a teenager and continued using on a daily basis through your university years. You continued to use heroin during your twenties and thirties making some attempts to cease but experiencing relapses. You report that you have been able to cease using over the past two years as result of taking prescribed methadone.
9. On one occasion in 2017, you, in an apparent attempted suicide by injecting a large dose of heroin, woke the next day with an infection from the needle still in your arm. You required hospitalisation and surgery in order to save your arm.
10. You state that you have used methamphetamine recreationally from 2002 using on a monthly basis. You also state that you have tried many different types of drugs including ecstasy, cocaine and marijuana. You state that you only drink alcohol occasionally.
11. A letter was prepared and tendered on the plea by Dr John Sherman from the First Step organisation, a specialist addiction and mental health centre in

St Kilda. Dr Sherman notes that you have been a patient of his from

January 2012 until August 2018. You first sought his assistance in relation to your heroin addiction. You were placed on a treatment regime which included prescribing suboxone and you commenced methadone in September 2017. While not a psychologist, Dr Sherman notes that he observed that you had multiple complex issues requiring addressing including observations consistent with depression. At the time of last seeing you, Dr Sherman reports that you were responding well to treatment and committed to your pharmacotherapy program.

12. Since being in custody you have continued to improve your physical health. You have engaged in fitness activities and abstained from drug use. You have undertaken vocational courses as well as drug and alcohol and well-being courses. Your family continues to support you and visits monthly. Whilst on remand you have also been working in the prison system.
13. A report was prepared by Simon Candlish, psychologist, and tendered on the plea. Mr Candlish provides a detailed history and conducted a number of psychometric tests on you. In relation to the tests conducted as to the risk of sexual recidivism, Mr Candlish reports that you are assessed as a low risk based on the tools he used. The risk is described by Mr Candlish as follows:

'Should Mr Dat decide to re-offend in a sexual manner, he might engage in non-consensual digital penetrative acts and attempted penile-vaginal penetrative acts against a partner he has separated from and feels upset with and betrayed by (at paragraph 123)'.

1. The risk, based on the psychometric testing, is assessed as between two and four per cent, meaning that of 100 sexual offenders with the same risk score, two to four would be charged or convicted of a new sexual offence after five years in the community. Nonetheless, there are a number of other matters raised in his report that are concerning, and in my view, relevant to the sentencing consideration.
2. Mr Candlish reports:

'He appeared to seek to justify his behaviour reporting that if his ex-wife had agreed to the divorce "instead of putting me in limbo and taking the kids away" he would not have behaved in this manner (at paragraph 64);

(at paragraph 105) He revealed some attitudes suggestive of a desire to punish the victim due to an apparent discovery or suspicion that she was engaging in a sexual relationship; and

(at paragraph 137) Mr Dat appeared to have underlying insecurity and felt a sense of betrayal when his wife indicated that she was unhappy and wanted to separate. He appeared to dismiss her concerns and continued to feel entitled to try and persist with the relationship despite his wife's disinterest. He appears to have revealed some narcissistic attitudes.'

1. In my view these paragraphs disclose the substance of the difficulties you must overcome in relation to your attitude to women and your insight into your offending behaviour.
2. That said, it appears that your offending is linked to the relationship breakdown and the resentment you held towards your ex-wife. As such, Mr Candlish also notes (at paragraph 140):

'Mr Dat's sexual offending does not reveal a history of paraphilic behaviour or serious personality disturbance that might elevate his risk for harm and sexual deviance. He does not reveal a pattern of sexual offending or violent offending behaviour'.

1. Ms Lacy who appeared on your behalf outlined a number of matters she submitted ought to be taken into account in mitigation.
2. First and foremost, I take into account your plea of guilty. The matter was booked in for committal hearing but resolved prior to any evidence being taken. As such your plea of guilty has avoided the need for a trial saving court time and expense. Most significantly, your plea of guilty has avoided the need for the victim to have to give evidence and relive the events. Further, your plea is a reflection of your acceptance of responsibility and has therefore facilitated the course of justice.
3. Over and above your plea of guilty, there is little evidence of genuine remorse. As noted above, in a report that was prepared only recently, after spending some 18 months in custody, you clearly have little insight into your offending behaviour. Ms Lacy pointed to some aspects of the report (paragraphs 65 and 67) that suggest you are beginning to appreciate your conduct and accept that your ex-wife is entitled to move on with her life however, in my view, you have some way to go.
4. It was also submitted, and I accept, that since being in custody you have taken positive steps indictive of you moving forward such as maintaining your drug free status and engaging in educational courses.
5. General deterrence must be a primary sentencing consideration in cases such as this. As to specific deterrence, Mr Fisher who appeared on behalf of the Director of Public Prosecutions, submitted that specific deterrence must also carry weight in the sentencing equation. He made reference to the fact that the second offence occurred soon after the first and that based on the attitude you have only recently conveyed to Mr Candlish, there is a need for specific deterrence. I agree. You must learn that the kind of conduct you engaged in on both occasions will not be tolerated. Despite the fact that that your previous convictions do not involve offending of violence, for the reasons stated, in my view, specific deterrence must be given weight.
6. I note the recent comments of the Court of Appeal in the case DPP v Macarthur[6] a case involving charges of rape and attempted rape where the Court said:

'[T]he sentences to be imposed in a case such as this must make it clear that any person, who is minded to exploit the vulnerability of members of the public, particularly women, in such circumstances, by sexually interfering with them, will suffer a deprivation of their right to be at liberty within society for a substantial period of time. As an associated consideration, it is important that the Court make it plain that offending of the kind that was engaged in in this case is entirely unacceptable and reprehensible. In that way, in a case such as this, the Court, by the sentences imposed by it, has a duty to express its denunciation of such offending in clear terms.'[7]

1. While Macarthur involved different facts, in my view the comments of the Court are apposite and able to be applied with equal force in relation to your offending. Women who have moved on from a relationship are entitled to live independently and safely in the community without the fear of people like you seeking them out and ultimately, sexually assaulting them.
2. In the circumstances, denunciation of your conduct and just punishment are also relevant and applicable sentencing considerations. Taking into account the conclusions of Mr Candlish, including the risk factors, in my view protection of the community must also carry weight in the sentencing synthesis.
3. As to your prospects of rehabilitation, as noted above, while you seem to have accepted that the relationship with your ex-wife is over, your attitude towards her and your sense of entitlement suggest that you have some distance to go in terms of changing what Mr Candlish describes as your 'narcissistic attitudes'. To that end I accept Mr Candlish's opinion that:

'Mr Dat would benefit from exploring the factors associated with his decision to engage in sexual offending and develop insight into the factors that led to this. He should explore his own cognitive distortions. He would benefit from developing risk management strategies (at page 19)'.

1. Finally, in addition to the matters I am required to take into account under s 5(2) of the Sentencing Act 1991, I must also take into account that both charges are standard sentence offences. The standard sentence for the offence of rape is 10 years. Having identified and considered the relevant factors in assessing the appropriate sentence as part of the instinctive synthesis, including the maximum penalty and the standard sentence for rape, in this case I have formed the view that the sentence I will impose on each charge is lower than the standard sentence.

1. Mr Dat please stand.
2. Dao Thi Dat, on Charge 1, rape, you will be convicted and sentenced to 6 years imprisonment. On Charge 2, rape, you will be convicted and sentenced to 7 years imprisonment.
3. I direct that one year of the sentence imposed on Charge 1 be cumulative on the sentence imposed on Charge 2, making for a total effective sentence of 8 years imprisonment.
4. I direct that you serve a minimum of 6 years before becoming eligible for parole.
5. Pursuant to s 18 of the Sentencing Act 1991, I declare that 568 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
6. Pursuant to s 6AAA of the Sentencing Act 1991 if not for your plea of guilty, I would have sentenced you to a period of 10 years imprisonment with a non-parole period of 7 years.
7. While the Court has a discretion to make an order pursuant to the Sex Offenders Registration Act 2004, the prosecution did not make application for such an order and no order will be made.

[5] R v De Simoni (1981) 147 CLR 383

[6] [2019] VSCA 71.