DPP v Hyeong-Beom [2021] VCC 2058

4 I was told that you were 27 years old at the time of the offending. You are now 28. You are a citizen of South Korea and you were living in Australia on a working holiday visa which has now expired.

5 The victim in this matter, Myung-Hee Rim[1], was 23 years old at the time of the offending and is also a citizen of South Korea.

6 You and the victim met through a Korean social group in August 2020 and were friends. You had never been in any kind of romantic or sexual relationship with each other.

7 On Monday, 4 January 2021, you and others including the victim, met for dinner and a drink at about 7.00pm in a restaurant in the city. You all consumed alcohol at that time. At about 8.20pm, the group went to a bar, which was a short distance away, where you all ate and drank more alcohol. You then went to a karaoke bar, where one of the group left for the evening. You, the complainant, and Seung Maeng[2], went back to the victim's apartment in the CBD Melbourne. As it was late and the weather was bad, the complainant told you and Mr Maeng that you could stay the night so as to avoid taking the train or driving home.

8 The complainant allowed you and Mr Maeng to sleep in her double bed together and she slept on a single mattress on the floor. Before everyone went to bed, the complainant gave you and Mr Maeng towels so you could have a shower before sleeping. She had a shower after this, put on her pyjamas and went to bed on the mattress on the floor.

9 You and your friend, Mr Maeng, went to bed. The mattress that the complainant was lying on was next to your side of the bed. You were sleeping quite close to the edge. You and Mr Maeng went to sleep before the complainant, who stayed awake for some time, watching TV on her iPad, lying on the mattress whilst doing so.

10 The complainant fell asleep at about 2.00 am. She fell asleep on her left side and with her back to the double bed and woke up about two and half hours later, on her estimate, feeling like there was something in her vagina. Her pyjama shorts had been pulled halfway down to her thigh area and she could feel your penis going in and out of her vagina. You were penetrating her vagina with your penis from behind her. The complainant did not know how long this had been happening, as she had been asleep, but you were penetrating her vagina as she woke up and you were not using a condom. This information was all led by the prosecution by way of context only and was not the subject of the rape charge.

12 When the complainant realised what was happening, she told you to stop and tried to push you off, but you did not immediately stop. She kept telling you to stop and after a few minutes you did. The complainant got up and went to wash herself. When she returned, she turned on a light, which woke up Mr Maeng, who was asleep on the bed. She then confronted you and said, 'How could you do this, you know I told you to stop, right?' She was angry and continued to ask you why you had done it, and your replies consisted of 'Yes' and 'Sorry'.

13 The conversation between you and the complainant lasted between thirty minutes to an hour. Toward the end of the conversation, you said 'I didn't say earlier, because no matter what I say it will just sound like an excuse to you. I actually woke up three times, twice is because you kept touching my arm'. The complainant responded by telling you she had no idea what you were talking about because she was in a deep sleep with her back towards you. At some stage during the conversation, Mr Maeng heard you say, 'I thought you wanted it because you were dragging my arms to the floor when I was asleep'.

14 The complainant then told you to get out of her house and said she did not wish to ever see you again. You put your pants on and left at about 5.30am.

15 Mr Maeng stayed after you left and provided support to the complainant, assisting her to attend to the chemist to buy the morning after pill. The complainant told other friends what had happened, and they walked with her to the police station to make a report at about 5.30pm that same day.

17 Later the same day, you sent the following texts messages to the complainant,

'I'm not saying sorry to you to defend my mistake. I'm apologising because I did something wrong to you and I feel sorry. I will try not to show up in front of you as much as I can.'

18 On Wednesday, 13 January 2021 at 9.30am, the complainant telephoned you from the Melbourne West Police Station. The conversation was recorded under pretext and you and the complainant spoke about the incident. You also sent further lengthy text messages to the complainant, including the following,

'15 January 2021 at 10.35 pm. Could you please reconsider it once more please? I'm so sorry Myung -Hee. I am asking for your mercy. I'll take responsibility for it and support you. Can't you - to allow me a chance to apologise in any other way you want?

16 January 2021 at 9.15 am [You said] I'm so sorry. Myung-Hee. Please give me one chance, please?

[On that same day at 11.47 am] 'Even if I beg and beg to the extent that my hands and feet wear out, I know what the wounds you sustained, and my sins won't go way, I am really, really sorry.'

19 You were arrested on Monday, 18 January 2021 at about 11.30am at Melbourne West Police Station. You were interviewed and gave 'no comment' answers to questions asked of you. You have been in custody since that time.

20 Mr Park, your offending is serious and deserving of a punishment which is just in all of the circumstances. Your conduct must be firmly denounced. Further, strong weight must attach to general deterrence in a bid to deter others who might be tempted to behave as you did.

21 It is an aggravating feature in your case that you engaged in penile/vaginal sexual intercourse without wearing a condom, exposing the complainant to the risk of pregnancy and sexually transmitted diseases.

22 The complainant was a friend of yours, who ought to have been able to trust that you would treat her in a respectful way. However, you breached that trust when you failed to withdraw once you became aware of her lack of consent to what you were doing. You offended against her in her own home, where she was entitled to feel safe.

23 In sentencing you, I do so on the confined basis of the offending, and I accept that there are more serious examples of this offence, albeit that your offending is serious enough.

24 In sentencing you, I take into account the impact on the victim. The complainant says that the offending had affected her as she had to cut off all her mutual friends, as she did not wish to have any reminder of you or the incident. She said that she had felt very angry, hurt, and scared, as well as disgusted that a person such as you, who she trusted as a friend, had behaved in the way that you did. She said that she felt she could no longer trust men as she had before, and she was wary of forming new relationships in the future.

25 She said that the counselling she received had reminded her more of the incident and the trauma that this had caused. She said that she had been unable to focus on her studies since you offended against her, which had badly impacted her grades, to the point where she had to retake some of her exams. This was due to the fact, that she kept thinking about the court case and being distracted about the court date, which affected her so badly that she was unable to continuously study. Mr Park, these are the very real effects that your offending has had upon the victim in this matter.

26 In your favour, you have no prior convictions and no subsequent offences alleged against you.

27 You are entitled to a discount that is fairly significant in view of the stage at which you entered a plea of guilty to this offence. I was told that the matter had been listed for a contested committal hearing, but it resolved a few days beforehand, at a stage where the victim would have believed she was about to give evidence. I was told that you had other legal representatives involved at an earlier stage, which might have accounted for the fairly late resolution discussions in the matter. In any event, ultimately you saved the witnesses, especially the victim, the time and trouble, and in the victim's case the trauma of giving evidence, and you saved the community the time and expense of contested proceedings.

28 It was submitted that you had indicated heartfelt remorse from the day that you committed the offence, which was reflected in what you said to the victim at the time, and via messages subsequently. On the other hand, as I understand it, a number of the messages you sent the victim was in a bid to have her withdraw her complaint against you, and I note that you made a 'no comment' record of interview, and that there was to be a contested committal hearing not long before the matter ultimately resolved. However, in circumstances where you were apparently reliant upon legal advice, and there was a change in your legal representation, and also in view of your expressions of remorse from the outset, a number of which were not accompanied by pleas to have the complainant withdraw her complaint, I accept that you are truly remorseful for your actions and I have little doubt that you will conduct yourself in an upstanding way in the future.

29 I have viewed a number of character references in support of you. As the learned prosecutor pointed out, some of these did tend to question whether you had done anything wrong. Clearly, you have, and I will not visit their remarks upon you, save to say that the people who made such remarks need to understand the seriousness of your offending, in order to properly support you in the future. However, every character referee spoke very highly of you as a person, and I accept that you are of otherwise good character.

30 In sentencing you I take into account your background:

31 You were born in Osan in South Korea in September 1993.

32 You have a sister who was born in 1987. Your sister lives in South Korea with your father.

33 From 2013 to 2015, you undertook full-time military service in South Korea.

34 You have a total of 16 years' education, culminating in 2018 with obtaining a degree in engineering from the National University Osan.

35 In 2019, you commenced working as an engineer in South Korea. You arrived in Australia on 2 February 2020 on a working holiday visa.

36 You worked for two months at a Korean restaurant, but you had to leave this employment due to its closure during lockdown. You then worked in a meat-packing business, but had to leave here, because the terms of your visa prevented you from being employed for longer than six months with the same employer. You then worked in the tiling industry for two months. You then returned to the restaurant at which you had previously worked and had been working there for two or three weeks as at the time you were arrested.

37 I was told that in 2019, your parents divorced after your mother had an affair. You found your parents' separation very difficult to deal with and for some reason blamed yourself for not being able to help them reconcile.

38 Your working visa expired while you have been in custody. You are therefore now an unlawful non-citizen for the purposes of the Migration Act [1958] (Cth).

39 Before the expiry of your visa, you had made enquiries about obtaining a further visa to remain in Australia. I understand that your enquiry related to a further working holiday visa - it was not your intention to stay in Australia long term.

40 You do not have a current partner or girlfriend however you have some friends you have made while living in Melbourne.

41 I was told that you have experienced emotional difficulties associated with the divorce of your parents and adjustment to life in Australia. You were diagnosed by Patrick Newton, Clinical and Forensic Psychologist, as having an adjustment disorder with depressed mood. It was Mr Newton's view that you experience a range of physical symptoms of depression and were at an increased risk of developing more intense depressive conditions, including a major depressive disorder. He said that there was an appreciable risk that your mood could deteriorate while in gaol, which underscored the importance of you receiving ongoing treatment. You were assessed by Mr Newton as being at low risk of sexual recidivism.

42 In sentencing you, I allow for the various ways in which your experience of imprisonment will be harder than might otherwise be the case. These are as follows.

(b) Secondly, you have been and will be isolated due to your lack of English and inability to receive visits from family members. In this regard, I was told that you are too ashamed to speak to any people with whom you are very close, which will make it even harder for you while in gaol;

(c) Thirdly, your mental health issues as indicated by Mr Newton, and I have also factored in that there is an appreciable risk of your mental health further deteriorating; and

(d) Fourthly, the various restrictions in place from time to time due to the COVID-19 pandemic, also noting that your language difficulties may well impact on your ability to engage in any programs.

43 I give extremely limited weight to any anxiety that you are experiencing due to the prospect of being deported as you had not been in Australia long at the time you were arrested and, in all of the circumstances, you could not have had much in the way of a legitimate expectation to remain here on any view of things. There was no guarantee, for instance, that you would have been able to obtain a further working holiday visa and in any event, your plan was to return to South Korea at the end of a further 12 months.

44 I make a further allowance in your favour, which must reflect 'a pronounced amelioration of sentence' the authority being Worboyes v R [2021] VSCA 169 at paragraph [39]. This is due to the fact that you have facilitated justice by pleading guilty during the COVID-19 pandemic, contributing to reduction in the backlog of cases awaiting trial.

45 You are still a fairly young man with no prior convictions, a good education and strong work ethic. You have also expressed remorse appropriately and have some insight into the seriousness of your offending. In all of these circumstances, I assess your prospects of rehabilitation as being excellent and I need only place very minimal weight on specific deterrence and protection of the community. However, I must give appropriate weight to just punishment, general deterrence, and denunciation, as I have previously said.

46 In sentencing you, I have had regard to current sentencing practice and the standard sentence for rape. However, neither of these matters are controlling of the sentence that I impose but are relevant matters to take into account.

47 On your behalf, your counsel accepted that a term of imprisonment was warranted but accepted that a shorter than usual non-parole period might be imposed in your case. The prosecution submitted that a sentence of imprisonment involving a head sentence and non-parole period was warranted but did not really take the matter beyond that.

48 In all of the relevant circumstances in your case and being mindful of the limited basis on which this matter was resolved, I am of the view that I ought impose a sentence which is toward the lower end of the range, and that there ought be a very substantial gap between the head sentence and non-parole period.

50 I note that rape is a serious offender offence pursuant to Schedule 1 of the Sentencing Act 1991, which will be entered in the records.

51 You are sentenced to four years and six months' imprisonment, and I impose a non-parole period of two years' imprisonment. In all the relevant circumstances, I am of the view that it is in the interests of justice to fix this non-parole period in your case.

52 I declare that you have already served 325 days by way of pre-sentence detention.

53 If not for your plea of guilty, I would have sentenced you to six years' imprisonment, with a non-parole period of four years. Madam Interpreter have you completed interpreting?

55 HER HONOUR: Thank you very much. Now, is there anything arising from those remarks? Anything further?

58 HER HONOUR: All right, thank you, look, I can give you very limited time to speak to your client with the use of the interpreter. It's just that you know, we have other matters that we need to attend to Mr Fairfield. So, if you could just - if you wish to speak to your client, I'm sure Madam Interpreter, if you wouldn't mind just staying around for that to happen and everyone else will finish up, you know, with the hearing. Do you wish to speak with your client at this stage, Mr Fairfield?

59 MR FAIRFIELD: That would be appreciated Your Honour, yes, thank you.

60 HER HONOUR: All right. Please send a text message to my tipstaff when you finish speaking with your client.

61 MR FAIRFIELD: If Your Honour pleases, thank you.

62 HER HONOUR? All right, thank you. There's no sex offender registration Madam Prosecutor is there?

63 PROSECUTOR: No, Your Honour it's discretionary in the (indistinct words).

64 HER HONOUR: No, I just wanted to make sure of that. All right, thank you. I will now adjourn and yes Mr Taylor if you could accommodate the conference with counsel and with the interpreter, thank you very much Madam Interpreter for your help. Thank you.