DPP v Kim [2022] VCC 490

4 Cynthia was significantly impaired when you touched and raped her. I am satisfied beyond reasonable doubt of that fact from the materials before me. The jury have acquitted you of the administer drug charge. It follows then that you have not taken any steps to impair her abilities. None the less it is and was as clear as day that she was significantly impaired. I obviously cannot and must not find that you were responsible for that state. There were no blood or urine samples and one possibility mentioned by Dr Sungaila for Cynthia's apparent state in the footage was overconsumption of alcohol.

5 Now in her evidence, Ms Price gave what were obviously estimates of her drinking on the night. Estimates as to how many glasses of whisky she drank and how full the glasses were for that matter. These sorts of estimates are notoriously unreliable. She said she was tipsy or even drunk but I suppose she wouldn't be the first person to misjudge the level of her own consumption. In any event the nature of the substance bringing about her state is not critical though I will work on the assumption it was alcohol. What is critical is that you didn't cause it. To that extent, I ignore the reference in the prosecution outline of plea submissions (exh A) which dealt with a statement you had made after the event. see para 12. The prosecutor applied to withdraw that paragraph. I certainly won't act on it. Nor any reference in any of the materials to you bringing about her state. I do not treat the cigarette referred to in para 3 and 4 as having any role to play at all in her impaired state. It is easily possible that her feeling unwell from alcohol coincided with the smoking of the cigarette but without having anything to do with the cigarette at all. Dr Sungaila endorsed such a view. So again to make it very clear, you are in no way to be dealt with for in any way bringing about or seeking to bring about or contributing to her impaired state.

6 I am however satisfied beyond reasonable doubt she was highly vulnerable owing to her state. The footage taken from a CCTV camera clearly shows her impaired state in that room. I am satisfied beyond reasonable doubt that you knew she was impaired. The footage marked as Exhibit C at trial spoke for itself. You touched her without any semblance of consent from her and the footage shows her actual state at that time.

7 The footage was devastating and the trial had an air of unreality to it because of that footage. There had to be some attempt to explain away what was obvious enough from that footage. That explanation was that she was engaged in an entrapment of you on this night. She met you, learnt you were a cosmetic surgeon and then set out to blackmail you for acts that had not yet even occurred. She was 'play acting' in the footage. The strangeness of that proposition is hard to overlook yet this is the way the trial was conducted. This scheme required you to commit the acts that she had no agency or control over. This was the theory run before this jury on your instructions, one that was totally rejected by the jury and now by me. I am satisfied beyond reasonable doubt that you knowingly took advantage of her condition and committed these acts. The acts included an act of digital rape.

8 The conduct for which you have been convicted was consistent with that detailed in the plea submissions dated 5 April with the exception of that portion not relied upon. See Exhibit A paragraphs [1] to [10] for the acts. The summary also goes into later events including communications between Cynthia and you and your police interview answers.

9 Cynthia gave evidence consistent with that summary. The conduct spanned some minutes. Touching on the outside of her breast (Charge 2) kissing on the lips (Charge 3) touching her over the vaginal area above (Charge 4) and below (Charge 5) her clothing, touching her breast under the clothing (Charge 6) and then digitally penetrating her (Charge 7 Rape) and following up that rape with another sexual assault involving touching her vaginal area on the outside of the clothing after dragging her onto the couch. (Charge 8). The footage shows her lack of responsiveness and the way you had to manhandle her. It also gives a sense of the duration of the acts. The penetrative act was not a matter of seconds. You had your hand inside her pants and were penetrating her vagina for far longer than the second referred to in the case of Flynn[2] to which I was referred. Nor am I of the view that the jury verdict is consistent only with some 'minimal penetration' as described in your counsel's submissions. It is true there was a jury question about whether touching of the clitoris could amount to sexual penetration and that question was answered by me. We do not know whether that question emanated from a single juror or more than a single juror. The verdict was some hours later. The footage itself was not at all indicative of that level of touching. Nor did the footage exist on its own. The victim gave sworn evidence of penetration of her actual vagina in her evidence in chief, in cross examination and in re-examination. Her clarifying police statement was re-examined in on that topic and she had complained on the very morning of penetration of her vagina in the sense of a finger or fingers entering her. She was also taken to her committal cross examination where there was something less than certainty expressed on that score but even when taken to those answers at Trial she explained that there was actual penetration inside her. I have no doubt at all that is what took place and I am equally sure the jury had none either. The fact that fingers entered her vaginal canal is not a matter in aggravation at all. The notion seemingly implied in the written defence submissions that I should be trying to understand for the purposes of the sentence the actual depth of or degree of penetration struck me as quite odd. Whether being touched on the clitoris or elsewhere within the outer lips for that time, or by a finger entering her vagina proper, each are acts of digital penetration, each would be rape and it struck me that it would be strange to treat one as somehow worse than the other. I was a bit puzzled by the written submissions in this case (see paragraph [16(c)]. I asked Dr Boas whether he was suggesting that the fact of digital penetration constituted by touching of the clitoris was less serious than digital penetration involving penetration of the vaginal canal. He made it very plain that was not the submission he was making at all. It went rather to the aspect of duration. Well there was nothing in the question from the jury dealing with the aspect of duration at all. I will return to this issue in due course though have foreshadowed my findings.

10 You were interviewed by the police and your interview was the proverbial 'trainwreck'. It was as big a problem as the footage itself, with many denials and retreats from those strong denials once the stills were shown to you. You kept hinting at some explanation for your conduct arising from the cultural aspect of her being a Karaoke Hostess. You had initially told the police she was not your type and you were not attracted to her even though you selected her from a number of prospective hostesses but when presented with some of the stills including one with your hand down her pants, you changed tack on that score as you had to and said that you had become attracted owing to your drunken state. You said you were 'horny'. You laced the interview with all manner of rumours about her drug use. All of it total nonsense, of that I have no doubt. When she was cross examined, there was a bizarre piece of puttage to her involving a suggestion that a man named Hun had come to the club, that Cynthia had obtained some cocaine and had used it herself and offered it to you to make the night 'more interesting'. That you had declined and that she had then also tried to create a bong out of a can of tea on the table to smoke cannabis. She rejected that puttage as nonsense. I have no doubt it was complete and utter nonsense. A creation by you to try to besmirch her before the jury. Indeed, had any of that happened, you would have mentioned it in you interview. There were countless opportunities to provide some account of any of this and you provided none, resorting instead to rumours (180-186,194). Not introducing any account of seeing her use drugs or having any knowledge of such activities. It was a cynical endeavour by you through your counsel to blacken Cynthia's name but done on your instructions.

11 In you interview you said that you couldn't remember 100 percent of the night and had a memory of only 80 percent. Hardly an encouraging base from which to make definitive statements about anything. You described her spreading her legs at one point in time. Of course, the footage shows how they were spread. By you.

12 It was, you said, stupid behaviour when you were drunk.

13 Well, it was that but much more of course. These were serious crimes you committed. You swerved between saying she was unwell to saying she was pretending. You introduced this theory about the acts being all about blackmail without addressing the fact that you were the person in the video committing them. How she could have any control over your conduct remains a mystery. Of course, she couldn't. It was suggested in your senior counsel's address that she the victim was 'calling the shots'. If she was pretending to be unconscious, how could she accurately predict that you, a medical Doctor no less, would pounce rather than administer first aid or call for help. Yet of course, pounce you did.

14 Once shown the stills, you gave a very different account. You retreated from the account you had told the police as to not touching her and then resorted to some forlorn account of how she was not 'totally' knocked out. You spoke of 'non-verbal consent' and the fact that she did not say get away or push you out. I interpose there was part of the footage where she pushed you away or tried to. There was then the bizarre spectacle of you saying in the interview that you could remember how far you went. What you did do and what you didn't even though minutes before you had denied any act at all. You were now 'horny' but had no erection. You had your hand in her pants but were adamant you didn't penetrate her. She was not 'completely passed out' you said. Towards the end of the interview you mentioned you had probably had a 'drunk illusion' (see Answer 1639). I have put in only a handful of the interview answers. It was a disaster. It was a very shaky foundation from which to assert that this woman was consenting and that you had a reasonable belief in her consent given that self-induced intoxication is removed from that consideration.

15 Plainly enough she was very unhappy as to what you had done. She texted you later that day. You commented on her having a really hard time (see para [17]). She obtained the footage some days later and it is true there were some communications where she was more than hinting at obtaining money from you for what you had done. She explained her reasons for that contact in her evidence to the Jury. The Jury was satisfied beyond reasonable doubt that you committed these crimes. For all I know, they might have been satisfied also that she may, at an early stage, have had some thoughts about getting some money as compensation from you for what you had done to her. That is academic. What happened in the room was not determined by what happened days later.

16 She was not consenting to any of these acts. I am satisfied beyond reasonable doubt on the materials and consistent with the verdict that you knew she was not consenting to any sexual act. The way in which you were positioning her body was pretty extravagant. She was scarcely conscious.

17 There was an unusual inconsistency between suggestions that she was actually consenting and the suggestion that she was pretending to be unconscious. They didn't sit too comfortably together, nor with the suggestion that you had a reasonable belief in the consent of someone who was said to be feigning unconsciousness. As to this suggestion that she was feigning incapacity, she was carried home from that room quite some time after you had left. This took 'play acting' to its nth degree. Of course, it was not play acting at all. That was her actual state.

18 She had complained at the latest on that same morning and yet she was cross examined as to her failure to have detailed her complaints to a doctor or to the police. Quite strangely, in my judgment, female counsel suggested both to the witness in cross examination, and to the jury in her address that there would be nothing embarrassing for the complainant in describing what 'another person had done to her'. Cross examination about what 'genuine victims' of sexual assault would be expected to do notwithstanding my requirement to give a section 52 and section 53 Jury Directions Act direction. I had already given a section 52 direction at the outset. None of this represents an attack on your counsel. The case was conducted in this fashion because your instructions were absurd and didn't fit either the footage or the interview. Suggestions of reasonable belief in consent did not gel at all with your answers about the possibility you were hallucinating based on your self-induced intoxication or the footage. Suggestions of that woman Cynthia in that footage being a consenting party were plainly absurd. As absurd as the suggestion that the cut of her pants and the small size of your hands impeded actual penetration. The footage spoke otherwise. I have watched it again.

19 Notwithstanding the suggestion of blackmail being her motivation, she, the victim, contacted the police herself and provided up to the police the texts and communications relating to the requests for money. She did all of that by November 2017. Again it made quite forlorn some of the arguments that were pressed in this case. It was like trying to bang a square peg into a round hole and that unhappy feel was created by the reality of the footage and the interview. Endeavours had been made to exclude each of those pre-trial.

20 Even the character evidence had a strange feel to it. Calling a number of witnesses almost all of whom had not seen the footage or had no sense at all of what the footage disclosed or the extent of the admissions that you had made in the interview. Giving evidence in a complete vacuum. Even being asked to give evidence of how alcohol did not lead to any issues in your conduct. That your good character in relation to women and your behaviour to them withstood the effects of alcohol.

21 I have in these few paragraphs to this point foreshadowed many of my findings. I have mentioned the way the trial was conducted. You are not to be punished for running a trial. I do not lose sight of that. It was your right to contest the charges and run such a defence as you chose to run. It was your right to put these various propositions to the witness and to the jury and to test the prosecution case.

22 It is my task to sentence you for the crimes you have been convicted of by this jury. Your counsel was not suggesting there was any remorse in this case. He was explicit in that regard. He is right. There is none.

23 I see no need to say much more about the offending. It is clear that it had sizable impact. It was plain from her evidence how significantly this offending had impacted her. At that stage though it was an allegation. Now it is proven. She was highly embarrassed by the whole event. Mortified to have to answer questions in a Court. She was embarrassed by describing body parts and the like.

24 You are 52 years of age and have no criminal history at all.

25 The offence of sexual assault carries a 10 year maximum prison term, the rape a 25 year maximum and you will fall to be sentenced as a serious sexual offender. The standard sentence scheme fixing a 10 year standard sentence for rape does not apply as this rape predates the commencement of that scheme which came into effect for crimes committed from 1 February 2018.

26 The fact is though, rape is an inherently serious crime, and you don't have some of the large, if not very large, benefits which apply to many, for instance and one evidencing genuine remorse. In making submissions as to the level of the seriousness of the rape, your counsel focused on the degree of penetration and perhaps less on the significant aggravating feature of her obvious state of vulnerability.

27 I see no need to set out any more of the facts in this case.

28 There is an impact statement from Cynthia dated 24 March 2022. It was marked as Exhibit B. It was read aloud and no issue was taken with that material. She has been very deeply affected by your crimes. She has felt stress. She has found the court sequel disturbing and embarrassing. Everything feels filthy to her. She thinks of the events. She has trouble not doing so. She has trouble sleeping. She has lost a sense of trust in others and is a different person. She wants to move on from this event. I hope that she can. However, we are many years removed from these crimes and it is obvious that these crimes have had a significant impact upon Cynthia. I take into account that impact as I am required to.

29 Dr Boas conducted the thorough plea on your behalf and prepared a very detailed outline of written submissions dated 28 March 2022. There had been some slight amendments made dealing with the earlier plea offers and counter offers. He relied upon a number of character references including one from your oldest son and your wife and one from a priest. Two others were from witnesses who gave evidence at the trial. He was relying as well on the character evidence led at trial from those two witnesses and some others. There was also a brief letter from a psychiatrist and a letter from your accountant. Dr Boas took me to your personal and family background, including details of your educational and employment history, as well as your relationship history.

30 He made some submissions as to the objective gravity of the offending, how the jury verdict should be interpreted and matters of sentencing principle at play in a case such as this. He took me to some offers that had been made to resolve this matter and how they should be reflected in the sentence.

31 He made submissions about the absence of any criminal history and what he said were your excellent prospects of rehabilitation.

32 Additionally, he relied upon the following matters in mitigation:

• The delay since this offending, the fact of it hanging over your head for many years and your efforts in that sizeable period.

• The existence of extra curial punishment occasioned by the loss of your profession and businesses.

33 He made submissions about sentencing practices and took me to a handful of cases of other offenders being sentenced in the past. He conceded that this offending could only be met with a prison sentence and one of a dimension where a non-parole period would be fixed. He was explicit in submitting that the case of Verdins[3] had no application here. That the brief letter from the psychiatrist was not in any way relied upon as enlivening any of the 6 principles from that case.

34 Mr Fisher who was the prosecutor at trial and the plea, placed before me the written submissions I referred to earlier which were marked as Exhibit A on the plea. He argued on behalf of the Director of Public Prosecutions that an immediate term was required here and one requiring the fixing of a non-parole period but of course so much was readily conceded by your own counsel. The prosecution challenged the suggestion made at paragraph [16(a)] that they could have rolled up in a trial charge a number of separate criminal acts. Your counsel accepted that criticism was warranted. The prosecution challenged the suggestion in paragraph [16(c)] that the verdict was reached on the basis of the most superficial act of penetration and the conclusion at the tail end of that paragraph as to the jury being satisfied that you had touched her clitoris. The prosecution challenged the suggestion at the end of that same paragraph that the nature of the digital penetration was of a minimal character. The prosecution also challenged the submission made orally on the plea by your counsel to the effect that it was not conceded that the victim was in a highly vulnerable state. Your counsel conceded some aspect of vulnerability though there still seemed to be some attempt to suggest the footage was not clear or grainy. Likewise, the Crown challenged the suggestion that the offending fell at a very low or even the low end of the scale (see para [17]). The prosecution argued that the victim was obviously significantly impaired and that you were aware that she was in a highly vulnerable state and chose to offend against her in such a setting rather than attend to her or call for medical assistance. You were a doctor yourself at the time. They argued that you knew you were taking advantage of her condition. They argued that the offending did not fall at a low level at all.

35 I will return in one moment to discuss these various submissions made on your behalf, as well as the matters raised by the prosecution. The reality is in the early paragraphs of these my reasons, I have already indicated a number of my findings. I will turn firstly to your background.

36 I will do so briefly as I have no reason not to accept what I have been told about your background. As I made clear to you in the course of the plea, there is much detail as to your background in the written submissions and they were supplemented by some oral submissions. There is no point me repeating all of this detail. It is not in any way in dispute. Very briefly by way of a thumbnail sketch, you are now 52 years of age born in July 1969. You were born in South Korea. You emigrated to Australia with your parents in 1984 and commenced in year 9 at school. You had to learn English. It was a bit of a culture shock for you. Your parents moved back to Korea and then to Sydney and back to Korea. You stayed in Melbourne with an Australian family. You finished schooling up in NSW. Your parents returned to Australia in 1991 and you lived with them in Sydney. Your father died the following year and you had deferred your medical studies in that year before he died to provide some care for him. You completed your medical degree at the UNSW in 1996 and did internships. The written submissions set out your ongoing studies and many achievements including your employment over the years. I won't set it all out. You are obviously highly intelligent. You have worked as a cosmetic surgeon but your registration was suspended in 2018. That represents a massive fall from grace and has occasioned the loss of your livelihood. There is the relatively sketchy letter from the accountant. Your counsel could not to tell me what your income had been, what it was, whether you sold the businesses and if so for what amount or any details of your financial position.

37 You are a married man. You married Becky in 1999. Sadly in 2002 just after the birth of your second son, your own mother died. You have three children, two sons who are university students and a daughter who is 11 years old and does not know of your predicament. The oldest boy has written a sad reference. So too your wife. Your two sons and your wife viewed the plea hearing. I asked directly and was told that you are now an Australian citizen, so at least the spectre of deportation does not exist here as it does in some cases.

38 Since the verdict on 5 March, you have been in custody for the first time and that has not been easy. You went into quarantine for 10 days. In person visits opened up from the 12 March. I asked your counsel and he made plain he was not making a COVID-19 increased burden submission in this case recognising that things had changed for the better and you had only recently arrived in prison at what we hope to be the tail end of the pandemic.

39 As I have said already, it was your right to run a trial and to raise whatever issues you sought to have raised on that trial.

40 Your counsel was not suggesting there was any remorse here. I have considered this matter none the less. When I examine all the materials, including the interview, the letter that was sent on your instructions to Cynthia (Exhibit E) as well as the way this trial was conducted and the matters put to her, I am not satisfied on the balance of probabilities on the materials before me that there is any actual remorse on display here. In fact, I am satisfied beyond reasonable doubt there is none.

41 I turn then to consider the various other matters raised.

42 As I said a moment ago, your counsel was not relying upon the impact of the COVID-19 pandemic upon your prison experience. Prison has in the past couple of years been a more stressful place owing to COVID-19 and the response to the virus. Now, of course, you only recently entered prison following the jury verdict, but it has been in circumstances where there has been a 10-day quarantine and at least a short period with no eligibility for personal visits. That is not an easy start. What lies ahead in the future on the pandemic front in the community and likewise for prisoners is impossible for me to predict. In person visits started again from 12 March.

43 Those whose job it is to run the prisons will be able to reflect on the impact of any past and ongoing limitations on a case-by-case basis. They will have the power to address any actual increased burden in your case by way of conferring emergency management days. I cannot know if that will take place or not. I do not proceed on the assumption it will. I just cannot know, so I do not take that possibility into account. I take into account that it is your first experience of prison, there have been some ramifications posed by COVID-19 including quarantine and all this in a setting where you are removed from your family in NSW. It won't be easy. I take that into account

44 I turn then to your prospects of rehabilitation. You are 52 years of age with no prior criminal history or any offences committed subsequently. As is clear from the various references, you have been a highly contributing member of society. You have had a very good employment record but have now lost your profession. I have the character evidence here. I have expressed my reservations about Ms Nguyen and her evidence. I saw her in the witness box at trial and must day I was not impressed by her approach. She had something of a charter, and it was very obvious. She said she thought the case was a joke, that the police had cornered you and manipulated you in the interview and that the victim must have done something to contribute to the conduct. Her performance as a witness was regrettable. That does not set to nought her evidence or what she says about you in her written reference.

45 The universal view is that this conduct was out of character. That can be gleaned from all of the references as well as the oral testimony at trial. You are described in glowing terms by a number of people who comment on your many qualities. I am not going to set out those materials. It is clear that your conduct on the occasion of this offending was far removed from your normal conduct. It is hard to conclude other than that you were to some extent disinhibited by alcohol on the day of this offending. That is not mitigatory. I believe that alcohol in combination with the strange mindset you had in relation to Karaoke hostesses played into your decision to offend. Your counsel did not challenge that potential finding. Neither of those things are actually mitigatory (or aggravating for that matter) but they provide the context. You certainly were not behaving in a manner consistent with your past behaviour.

46 I cannot ignore the passage of time since the offending in 2017 and the complete absence of any other offending before or since. No doubt, the time you have spent already and the time you will spend in the future undergoing this sentence will serve to deter you, to a degree. So too the loss of your career. You have none of the things that so often impede an offender's rehabilitation such as addiction to drugs or serious mental health issues. Ultimately, I am prepared to find that you do have very good prospects of rehabilitation and a low risk of future offending.

47 Delay is relied upon and I pay regard to that submission (see paragraphs [27]-[29]). These matters have been waiting in the wings for some years. You have had the undoubted stress of them being over your head and have remained out of trouble in that period. I take into account the delay and the fact that you have continued on with your rehabilitation in the meantime. No one is to blame for the delay. It would have been unpleasant for you and for Cynthia for that matter. Even though your counsel submitted that it was not one of those cases where the Court must mark out it's disapproval of an unduly leisurely prosecution approach, it still represents something of a punishment for you to wait so long for the matter to be finalised. I take the delay into account in the ways contemplated by your counsel.

48 I also take into account the sizeable penalty arising from the loss of your career. It is entirely understandable that you should not be practising as a doctor after this conduct came to light. The fact remains though that you have been precluded for some years already from working in your usual occupation and those rights surely will not be restored. The loss of your career is a very significant blow and a punishment which I take into account in the ways contemplated by your counsel (see paragraphs [25]-[26]). There has been a massive fall from grace here.

49 It is true you made an offer to plead to some of the offending. The first offer was in February 2020. That conditional offer was rejected. In February 2021 the OPP indicated their offer to resolve with you pleading to all charges including rape and administer a drug but with a number of the sexual assaults being rolled up. You rejected that offer. The defence written outline says that on 3rd March 2021 you offered to plead to 6 charges of indecent assault, I assume that was meant to be a plea to sexual assault, but in exchange for withdrawal of the rape and the administer drug charges. That offer was rejected. The Crown said they'd accept a plea to the administer drug and the 6 sexual assaults. You rejected that offer in March 2021. You now stand convicted of the rape, the most serious of the charges by far, a charge you were never prepared to plead to.

50 It is true then that you offered to plead to the sexual assault charges at an early enough stage but that was preconditioned on the withdrawal of the administer drug charge and the rape charge. As I have said, the rape charge was by far the most serious charge on the indictment. It is true you have had success in relation to the administer drug charge. You were acquitted of that but convicted on the rape charge. It is also true that you have then set about conducting a positive defence pointing to the existence of consent as well as the existence of reasonable belief in consent. You moved away altogether from any acknowledgement of wrongdoing at all, 'levelling both barrels' at Cynthia instead. That was of course your right. The stance taken at trial does not remove the need for me to give appropriate weight to the rejected plea offers. That stance may be relevant to the issue of remorse were there such a suggestion, but it wasn't being made in this case.

51 Your counsel was not submitting that the plea offers were matters of any enormous weight in my task but that they were undoubtedly relevant and were something that I must pay proper regard to. I accept his submissions in this area. I must make some material allowance for the lost utilitarian benefit and that is so despite the trial that then unfolded.

52 Your counsel accepted the position was very different from that mentioned in the case of Zarghami[4] where an accused had success on the charge which was the major stumbling block to resolution. Here you were convicted of rape. That was by far the most serious of the charges and you were never offering to plead to it. The ultimate outcome does not, in that sense, reflect the rejected plea offer. I do not ignore the principles set out in that case or their application to this case (see paragraphs [19]-[24] of Zarghami) which sets out some of the case law. There is no standard weight to be given. It will be determined on a case-by-case basis. I give your offers to plead some weight here. There is a material benefit. As you will soon see, there is moderation to the sentences imposed on the sexual assault charges.

53 I turn now to the offences and there is little need to say too much about them. I have described the acts and the setting. Also, the impact. I have also set out early on in these reasons my conclusions as to some of the submissions and my finding as to relevant facts.

54 Sexual offences are inherently serious. Your victim was in a highly vulnerable state. You knew that. You touched her when she could not protect herself. As affected by alcohol as you undoubtably were, you still knew she was not consenting. You were deliberately taking advantage of this setting. These were not crimes with much planning. They occurred very much in the moment. I am not suggesting for one moment you had this in mind for long. Again, I must give you the full benefit for the acquittal on Charge 1. Had you been convicted of that offence, there would have been a greater level of planning and a higher level of culpability and seriousness.

55 You were down in Melbourne, had been working that day, had decided to go out after having dinner with another Doctor, had too much to drink and behaved in this despicable fashion in such a setting. Some of the touching was on the outside of the clothes. Some under the garments. The rape involved penetration of her vagina by your finger. I don't accept the submission of it being 'minimal' or limited to the touching of her clitoris. What of it anyway? The fact is the jury were satisfied beyond reasonable doubt you raped her. They were satisfied beyond reasonable doubt that penetration, as the law defines that term, was achieved. That was hardly surprising given the footage and the direct evidence of Cynthia. There was that question from the jury that I mentioned earlier as to how touching of the clitoris would be reckoned and whether that would constitute sexual penetration. Cynthia's evidence spoke of actual penetration of her vagina, not touching of her clitoris. I am sure that is what took place. As I said earlier though, I wonder whether this is a matter of any real importance. Your counsel was not drawing the distinction between those two styles of touching and saying one was worse than the other and hence to be satisfied of the 'internal' touching, I'd need to be satisfied of that fact beyond reasonable doubt. He said it was not a matter of aggravation at all. Rather he was relying on the limited duration.

56 Her vulnerable state on the other hand is a matter of aggravation here. I have to be satisfied of that beyond reasonable doubt. I am satisfied beyond reasonable doubt of that vulnerable state and I am entirely confident the jury were as well. Had they thought it reasonably possible she was feigning the state we see in that footage, they would have acquitted you on all these charges. As I have said, and whether Dr Boas likes it or not, the footage does actually speak for itself.

57 The offending all occurred within a matter of some minutes. Of that I have I no doubt so there is the absence of aggravation that might exist in relation to a prolonged act. But whether there was penetration of the vaginal canal as opposed to touching of the clitoris or the inner lips or even elsewhere within the outer lips, all of that is just a matter of degree. Is it really useful for a court to examine the depth and degree of penetration? It is the fact of touching within that area, which makes this a rape. It might well be a strange male exercise to compare one penetrative act with another when each involve a finger into an intensely private area. Each would be a rape. I don't accept the submission in any event. I am satisfied beyond reasonable doubt, though I need not be, that on the materials before me, there was actual penetration of her vagina in the way that word is usually deployed and the rape was not constituted by touching of the clitoris but for the reasons I have announced it doesn't actually matter. Your counsel conceded that as well.

58 As to duration, I have already said it lacks the aggravating feature of a prolonged act. It wasn't. However, it was not for a matter of a second or seconds. It was longer and involved you reaching into the pants and underpants of a person you believed to be helpless. She was in fact virtually helpless. Of that I have no doubt at all.

59 Your being disinhibited by alcohol is not mitigatory. At best, it might provide some context. This was serious sexual offending and the reason it is as serious as it was, is because of the vulnerable state of your victim Cynthia, something which I believe was downplayed in the sentencing submissions which were made to me but ultimately conceded by your counsel. She was not consenting, and you knew that fact. This was not a low level or very low-level offence at all.

60 I am required to consider a number of matters, including the nature and the gravity of offending, the impact of the crimes and the maximum penalties. I have to also consider a number of purposes of sentencing. Rehabilitation is one of the purposes of sentencing. I give it weight, given my favourable conclusions in that regard.

61 I must take into account, however, the other purposes of sentencing, including specific and general deterrence, protection of the community, denunciation and punishment. You must be punished justly and proportionately. Punishment is an important purpose of sentencing here. I must also denounce your conduct. That is of real importance. This sexual conduct in relation to a vulnerable young woman was despicable and must be roundly denounced. I do denounce it. You should be ashamed of yourself. Regrettably, you are not.

62 Then there is deterrence, both general and specific, and community protection.

63 I must at least consider the need to deter you from offending in the future. That principle of specific deterrence can be moderated here, owing to the complete absence of any criminal history, the delay since the offending, your continued good conduct in that period and my favourable conclusions as to your prospects of rehabilitation. The risk of reoffending is surely very low. For the same reasons, community protection, which would often be an important, if not the paramount purpose of sentencing, can be significantly moderated in relation to the first two sentences imposed by me.

64 It stands to reason that those two purposes, specific deterrence and community protection, must drop away very significantly in my sentencing task. That is surely just a matter of common sense. It would be very different indeed if you had relevant criminal history and had breached many court orders in the past. That isn't the situation at all. I do not accept that there is no weight to be given to them. That cannot be so given the seriousness of the crimes and the fact that you have not acknowledged your responsibility for them and chose to run a trial. But as I say there can be sizable moderation of the weight given to specific deterrence and community protection.

65 There is however an alteration of that position in relation to community protection when I come to impose the third sentence and beyond. By that stage, I am required to deal with you as a serious sexual offender. The qualifying offences here are charges 2 and 3. Community protection is then the principal purpose from charges 4 onwards.

66 General deterrence relates to the need to deter other people. It is an important purpose of sentencing for this sort of offending. This court must send a loud message to other individuals in the community who might be minded to commit these sorts of serious offences. Sexual offences are abhorrent, and they must be actively discouraged by the sentences imposed in these courts. A loud message must be sent to those who may consider engaging in the sort of conduct that you engaged in. General deterrence is an important sentencing purpose in this case and that much was not challenged by your counsel.

67 I must pay regard to current sentencing practices. That is not a single controlling matter. It is just one of the many matters that I must have regard to.

68 I have looked at the relevant statistics held by the Sentencing Advisory Council as well as the relevant cases listed in the sections of the Judicial College of Victoria Sentencing Manual dealing with rape and sexual assault (see Sentencing Advisory Council Snapshots No. 255 and 256 of 2021).

69 Whatever might be said of the statistics, they tell me nothing about the finer detail of the crime. Nothing about the matters in mitigation or aggravation. Many of the cases upon which the statistics are based would have been guilty pleas. Enough of the sentences I have looked at involved a guilty plea and one where there was a finding of remorse. That is worth a great deal in all cases, but more so still in cases involving sexual assaults. Well, those things do not exist here. It was your right to run a trial but, having done so, you do not have at your disposal the very sizeable benefits of a guilty plea, especially one made in the course of the global pandemic and one accompanied by actual remorse.

70 I must deal with you for your crimes, taking into account the matters in mitigation and aggravation in this case. The statistics provide no answer to my task at all, nor, for that matter, do these other cases that your counsel took me to. Or the others that I have looked at. As is always the case when so called comparable cases are placed before the Courts, there is an aspect of cherry picking the cases.

71 I have read the cases referred to in the submissions of your counsel. I don't ignore them. There are differences in many matters, some in your favour, some not. I have looked at a broader range of past sentences.

72 I acknowledge the submissions made as to the case of Shrestha[5] and it having perhaps a more limited application, given the timing of that decision. Current sentencing practices relate to sentencing practices at the time of the sentence not the offence, though I acknowledge that the principle of equal justice may limit a Court from imposing a higher sentence than that which would have applied at the time if that past sentencing practice can be determined. This sort of stance has greater application when dealing with historical offences. It should not be forgotten that the sentence actually imposed in Shrestha was described by the Court of Appeal as lenient. I cannot determine any increase in sentencing practices since in any event, other than those perhaps influenced by the standard sentence scheme which has no application here. There have been enough cases prior to Shrestha pointing to the inadequacy of sentencing practices for digital penetration and enough cases debunking the view regrettably sometimes expressed in the past that digital rape is somehow less serious than other forms of rape. The seriousness of a rape will not be determined purely by reference to the nature of the penetration. There is no hierarchy of penetration making one offence inherently more or less severe than another. Although digital rape does not involve some of the risks of penile rape, that does not mean a particular instance of it is less serious. An assessment of gravity will always depend on the facts of the particular case.

73 This rape does not have the features of aggravation inherent in an instance of unprotected penile/vaginal rape, being the risk of pregnancy and disease. But here, a significant feature of aggravation was the vulnerable state of the victim. She was highly vulnerable and you knew that fact. That applies to all the offending. This is not a high level example of the crime of rape but owing to the vulnerable state of the victim, offended against by you in a private room in her workplace, it is not a very low or even a low level example of rape at all and has none of the matters in mitigation that so often will apply as you have no remorse at all and are not entitled to the very powerful sentencing discounts applicable to an early guilty plea amidst the global pandemic.

74 I take into account the principle of totality of sentence. I have engaged in a last look at the sentences imposed by the court and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon you and to ensure that the overall effect is commensurate with your overall criminality. I have the serious offender provisions of the Sentencing Act which come into play by the time of the third sentence which will be imposed on Charge 4. As I said a bit earlier, the ramifications of that legislation are, that for the sentences imposed upon you as a serious sexual offender, I must treat the protection of the community as the principal purpose of sentencing. I may impose a disproportionate sentence to achieve that goal, pursuant to s.6D(b). I certainly will not be doing that here. No one suggests I should.

75 In the absence of a direction otherwise, the sentences imposed from that third sentence onwards would be served cumulatively as the presumption of concurrency is deliberately removed.

76 I do not ignore those serious sexual offender provisions but must consider your actual risk and I have spoken of that already. Of course, what sentence is required to protect the community necessarily depends upon my assessment of the risks that you present, which I find, on the material placed before me, to be very low (see R v RNT[6]).

77 Plainly, there is a strong relationship between all of these offences. They were part of an episode. That is not to say that they are deserving of complete concurrency; They are not. They were each separate criminal acts, no doubt each having a role to play in the overall impact caused here. I do accept though that there can be quite sizeable concurrency in relation to the acts where the serious offender provisions apply, notwithstanding the s.6E Sentencing Act provision. The episodic nature of the offending justifies that stance I believe.

78 Sending a person to prison is always a disposition of last resort. Your counsel concedes that I must impose terms of imprisonment, some level of cumulation and in this way arrive at a head sentence.

79 I am required to fix a non-parole period whenever I sentence someone to two years or more. I make no assumptions as to whether you will be released on parole. It is not for me to decide. That rests entirely in the hands of the Adult Parole Board.

80 I move now then to pass sentence, I will have you remain seated:

• On Charge 2, the first charge of sexual assault (touching breasts over clothing), I convict and sentence you to 2 months imprisonment.

• On Charge 3, sexual assault (kissing her on the lips), I convict and sentence you to 1 month imprisonment.

• From this point onwards, you are being sentenced as a serious sexual offender.

• On Charge 4, sexual assault (touching vagina over clothing), I convict and sentence you to 4 months imprisonment.

• On Charge 5, sexual assault (touching vagina under clothing), I convict and sentence you to 9 months imprisonment.

• On Charge 6, sexual assault (touching breasts under clothing), I convict and sentence you to 5 months imprisonment.

• On Charge 7 Rape, I convict and sentence you to 7 years 3 months imprisonment.

• On Charge 8, sexual assault (touching vagina over clothing), you are convicted and sentenced to 4 months imprisonment.

81 The base sentence is therefore the 7 years 3 months imposed on Charge 7.

82 I direct that the sentences imposed on charge 2, 3 and 8 will be served entirely concurrently with all the other sentences I have pronounced.

83 I now deal with the extent of concurrency of those matters where you have been sentenced as a Serious Sexual Offender. I have already pronounced full concurrency for Charge 8, which fits into that category.

will be served concurrently with all other sentences. It follows that under s6E, I otherwise direct concurrency to that large extent. It is my intention then that there be that additional three months cumulation, on top of the existing 7 years 3 months to that point.

85 These orders result in a total effective sentence of 7 ½ years imprisonment.

86 I direct that you serve a period of 5 years before becoming eligible for release on parole.

87 You have spent already the period of 35 days in custody by way of pre-sentence detention and that period is declared as having already been served under this sentence.

88 I have sentenced you as a Serious Sexual Offender on Charge 4-8 and that fact is also to be noted in the records of the court.

89 These offences are not automatic registration offences under the

Sex Offender Registration Act, given that they are not committed against a child. The prosecution does not apply for a sex offender registration order in this case.

90 HIS HONOUR: Let me just see if there any other matters? Mr Fisher, any other matters from your perspective?

94 HIS HONOUR: All right. Well, that completes the matter then. I will revise my reasons once they come back from VGRS. That might take a bit of time in this case, in the sense that I am on leave from today for a little while, then heading straight to circuit after Easter. But as soon as I get them I'll revise them anyway. I will sign the formal order downstairs in chambers, I think. Let me just see. Dr Boas, are you wanting to use the link at all or not?

96 HIS HONOUR: All right. Well, look, I'll have you placed off into a virtual room with your client and if you have got an instructor, your instructor but none of the other people, obviously and I'm not talking about family members or anything like that. So, it'll be you and Dr Kim and your instructor, if your instructor is there and you'll be in control of that. You'll be able to end that meeting when you choose to leave it. So, it'll be a private communication but you'll obviously need to confer with Dr Kim about his rights in relation to both the trial and the sentence for that matter. So, Dr Kim, you'll just be placed into a virtual room with Dr Boas and he'll be in a position to talk to you privately. Do you understand?

98 HIS HONOUR: All right. Well, that completes the matter. As I say, I'll sign the formal order downstairs.

[2] Flynn (a pseudonym) v The Queen [2020] VSCA 173

[3] R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 ("Verdins")

[4] [2020] VSCA 74

[5] Shrestha v The Queen [2017] VSCA 364.

[6] [2009] VSCA 137 at [16]