DPP v Phal [2025] VCC 1184

DPP v Phal [2025] VCC 1184 | Case summary | Zoe

The circumstances of your offending are detailed in the Summary of Prosecution Opening on Plea dated 16 June 2025, which is the agreed basis upon which you are to be sentenced.
In 2019, when you were 15 years old, you began working at McDonald's in Somerville as a general crew member. In March 2023, you were promoted to the role of Shift Manager. In this role, you were responsible for the general management and oversight of crew staff.
At around this time, the victim, Ms Marla Wells,[1] began work as a general crew member at McDonald's. She was 15 years old having been born in July 2008 and lived with her mother. You and Ms Wells were often rostered together where you were her direct supervisor. You were 21 years old.
In early 2024, you and Ms Wells began exchanging text messages using your personal mobile phone numbers. These exchanges began with you assisting Ms Wells to receive photos of her work roster as she had difficulty viewing McDonald's internal 'Workplace' system. Gradually, you began exchanging text messages of a more personal nature with Ms Wells, joking with her about the application of discount codes for staff purchases. Ms Wells took screenshots of these messages and sent them to a work colleague who was her crew manager. In turn, the crew manager disclosed the communications to the Restaurant Manager at McDonald's, Mr Connor Sweeney-Smith.
On 15 February 2024, Mr Sweeney-Smith met with you to discuss your relationship with Ms Wells and specifically asked you if 'there was anything going on' between the two of you. You denied there was, saying that you had only had discussions about Ms Wells' 'mental health'. Mr Sweeney-Smith cautioned you about any such contact, advising you that such messages could be taken 'the wrong way' and instructed you to block Ms Wells on all messaging applications. You told Mr Sweeney-Smith that you had done so. Mr Sweeney-Smith reminded you that Ms Wells was 15 and that you were 21, in response to which you assured him that you 'would never do anything like that'.
Mr Sweeney-Smith thought you appeared 'dismissive' during this conversation but believed that you would cease contact with Ms Wells.
However, contrary to the assurance you had given to Mr Sweeney-Smith, you did not remove Ms Wells from your social media, and recommenced communicating with her online a few weeks after your discussion with Mr Sweeney-Smith.
On 28 February 2024, you exchanged messages with Ms Wells on Instagram, which included the following:

[8]

At around midnight on 5 March 2024, while messaging the victim on Snapchat, you suggested that she 'sneak out' of her home to meet you. Ms Wells agreed, and you offered to pick her up in ten minutes. She suggested that you meet at a nearby milk bar to avoid the CCTV outside her home which could be seen by her mother.
You left your house at 12.54am and collected the victim from outside her house at 1:03 am. The victim was in her pyjamas. The victim sat in the front passenger seat, and you asked if there were any private areas nearby. The victim directed you to a carpark at Hastings Marina. You drove there but could not find anywhere suitable to park and then drove to Hastings Primary School, which is isolated from other residences and traffic. On the way to that location, you passed a police station and commented to the complainant to the effect of 'Oh, good choice, driving past, like, the Hastings Police Station'.
When you had parked near the primary school, you told the victim to climb into the backseat, which she did. You then followed her, before placing your hand on her thigh and kissing her. You told the victim to sit on your lap and reached under her clothing to touch her naked breasts.[2] The victim was not wearing a bra or any underwear.
You then placed your hand down her pyjama pants and inserted your fingers inside her vagina. The victim moved to lie down on the backseat while you continued to penetrate her vagina with your fingers for approximately 10 to 15 minutes.
You then asked the victim whether she wanted to 'go down on [you]'. The victim then inserted your penis in her mouth and performed oral sex on you for approximately 10 minutes.
You removed your penis from the victim's mouth and, having put on a condom, penetrated the victim's vagina with your penis until you ejaculated.
The acts of digital, oral and penile penetration, which occurred over approximately one hour, are the subject of rolled up charge 2 - sexual penetration of a child under 16.
You and the victim spoke for some time after, before you drove her back to the milk bar and dropped her off. You were captured on CCTV arriving home at 2:57am, opening the bin outside and entering through the front door.
A week later, you messaged Ms Wells asking if she wanted to sneak out again. She replied 'No'. You then told the victim that your communications would be limited to work matters and invited her to block you on social media, which she did. In late April 2024, the victim again contacted you through social media asking if you would like to meet up again. You responded that you did not think that was a 'good idea', stating that you were 'still scared from last time'.

[11]

I now turn to make some comments about the nature and gravity of your offending.
The inherent gravity of the offence of sexual penetration of a child under 16 is gauged by the maximum penalty of 15 years' imprisonment. The law places an absolute prohibition on sexual activity with children acknowledging the harm presumed to flow from such offending.[3] This is because premature sexual activity is presumed to cause 'long term and serious harm, both physical and psychological to a child'.[4]
Sexual penetration of a child under the age of 16 is clearly a serious offence, although the circumstances of such offending can vary significantly.
Here, the objective gravity of your offending is reflected in a number of factors.
Firstly, you were aware of the victim's age and the illegality of your conduct.
Secondly, although the victim was towards the upper limit of the age for underage sexual activity, being 15 years, 7 months of age, you were 21 years old; a disparity of five years, four months. Although this may not be a great difference in purely chronological terms, for a 15-year-old it is significant. The victim was school-aged, whereas you were a young adult in full-time employment, held the position of shift manager, and drove a car.
Thirdly, there was a power imbalance in your relationship not only by virtue of this age difference, but due your position as the victim's direct supervisor. Moreover, you had been directly cautioned against any inappropriate contact with the victim by your manager, Mr Sweeney-Smith, but you ignored this warning. I accept however, that beyond the fact of your position as shift supervisor, there is no evidence that you used or exploited your role as the victim's direct manager to facilitate your offending.
Nonetheless, your offending was a breach of the trust that both the victim and your employer were entitled to expect of you in your supervisory role.
The charge of sexual penetration of a child under 16 is a rolled up charge encapsulating three different acts of sexual penetration; digital, oral and vaginal. The sentence imposed must reflect the extent of that offending, whilst recognising that it occurs in the context of an isolated event over the course of approximately one hour. This is not an example of protracted or repeated offending, often seen in cases of this nature. Nor is it a case where you used force, or any other form of violence towards the victim, or otherwise engaged in denigrating or humiliating conduct towards her.
To protect children under 16, Parliament has specifically stated that the consent of the child is not relevant to the commission of the offence. The consent of the victim in such cases can never, of itself, be a mitigating factor. However, the nature of the relationship and the circumstances in which ostensible consent is given may be relevant to an assessment of the gravity of the offending and the offender's moral culpability. This was explained by the Court of Appeal in the case of Clarkson, which stated:

[13]

As your counsel acknowledged, this case does not fall within the exceptional category of cases envisaged by the Court of Appeal in Clarkson. However, it is far from the category of more egregious cases where much older men manipulate underage girls to engage in sex with them. Here, you and the victim had developed a relationship of sorts, exchanging friendly text messages, as well as mutually flirtatious messages over time. The offending was unplanned and occurred opportunistically on one night after you suggested that the victim sneak out of her home to meet you, knowing of her sexual interest in you.
Beyond this, there was no accompanying manipulation, predatory conduct or coercion associated with your offending, and the fact you wore a condom means the risk of pregnancy or disease does not present as an aggravating feature.
Overall, I assess your offending encompassed by charge 2 to be a low to lower mid-range example of this type of offence.
As to charge 1 - being the offence of accessing the CAM sent by the victim, I note that it is not alleged by the prosecution that the victim produced the two sexually explicit videos at your request. The videos were accessed on a single night and were not re-accessed by you beyond a second viewing of each video. The videos were not disseminated any further by you. I assess this to be a low level example of the offence of accessing CAM.
The victim harm implicit in your offending is borne out by the victim impact statement provided by Ms Wells.[6] In that statement, the victim describes the emotional impact on her once your offending became known within the workplace, leading others to make derogatory comments about her. The victim states this led to her engaging in inappropriate and risk-taking behaviours, including alcohol abuse, ultimately resulting in her being dismissed from her job. Tellingly, the victim describes replacing her relationship with you with other 'unhealthy relationships with [older people]', stating she 'felt like [she] couldn't like people her own age anymore', believing she needed 'validation [from] someone older'. She describes the impact this had on her mental health and says she now isolates herself from others.
Although it is most likely a reflection of her young age and the residual infatuation she had with you, the victim also describes never wanting to see you charged with this offending, and states that she does not regret meeting you, stating she still views you as a 'nice and amazing person', with whom she shared career goals, stating that '[you] were exactly what [she] wanted to be in life'.
The very purpose of provisions such as s 49B is to 'prohibit sexual intercourse with young girls...in order to protect [them] from their own inclinations, until they have reached a sufficient degree of maturity in life to make sensible and responsible decisions as to their own lives'.[7]
Viewed overall, your moral culpability for your offending is significant, however this is also informed by your personal circumstances, including your psychological immaturity, to which I now turn.

[14]

You were born in Cambodia in February 2003, where you lived until you were 10 years old. You are the eldest of two sons. Your mother moved to Australia in 2009, leaving you and your brother in Cambodia until she could sponsor you to migrate to Australia. After your mother left, you spent the next four years in Cambodia living between your grandparent's farm and with an aunt in Phnom Penh.
You had no relationship with your biological father, who left the family home when you were around 5 or 6, and has since passed away.
Your early schooling in Cambodia was disrupted by frequent changes in schools and an expectation that you would assist your grandparents on their farm. You describe your childhood as a lonely one without close friends.
You arrived in Australia in 2013 when you were 10 years old, living first in Melbourne's southeast, and then in Pearcedale from 2018. You continue to live at home with your mother, step-father, your younger brother, now 18, and a half-sister, aged 12. You have a good relationship with your step-father, who works as a truck driver.
After arriving in Australia, you completed primary school after repeating Year 5. Once you developed English language skills and acquired functional literacy and numeracy, you became an average student. You went to Mount Erin High School where you completed Year 12. During those high school years, you actively participated in a range of sports through which you developed a greater number of friends. You were never the target of any harassment or bullying during those high school years.
You have not completed any further formal education since leaving school.
Between 2019 and 2024 you worked at McDonald's, progressing from a crew member to the role of shift manager. Once this offending came to light, you were dismissed from this position.
You have since undertaken work as a labourer and, from March 2025, you have worked full-time as a 'trade assistant' for a publishing company.
Your graduation from Year 12 coincided with the 2019/2020 Gippsland bushfires. Motivated to do something to help, you joined your local County Fire Authority ('CFA') as a volunteer firefighter. Over your four years with the CFA, you responded to over 120 jobs, during which you describe being exposed to a number of traumatic experiences. Nonetheless, you enjoyed your time with the CFA, but were required to resign as a result of these charges. You have ambitions to join the Army Reserves, however you may be prevented from realising this ambition due to the nature of these offences. You are also interested in obtaining work as an excavator or in the mining industry.
You were assessed for the purposes of your plea hearing by forensic psychologist, Mr Patrick Newton.[8] In his report dated 24 June 2025, Mr Newton states that you were difficult to engage in a discussion about sexual matters, but notes that you have experienced several relationships with age appropriate females over your high school years and subsequently. A more recent relationship, which began after this offending, lasted several months but ended due to the stress of these legal proceedings. You are currently single.
Mr Newton assessed you as being immature for your age, stating that your mannerisms and demeanour are 'more in keeping with those of a teenager than with those of an adult'.[9] He describes your understanding of your emotional and interpersonal world as 'superficial', and states that you are yet to develop strong social skills.
Mr Newton also assessed you as suffering 'noteworthy reactive distress' which he attributes not only to your legal situation but also to your disrupted early history and exposure to distressing events as a volunteer firefighter.
After being charged with this offending, you have engaged in offence-specific treatment with psychologist, Mr Geoffrey Burrows on 12 occasions at your own expense. In his report dated 26 June 2025, Mr Burrows states that whilst you have expressed regret for your offending, you have made slow progress in developing insight or victim empathy, which Mr Burrows attributes to your persisting immaturity.[10] Mr Newton also attributes this to your 'immaturity, lack of personal experience, and most likely, shame at your conduct'.[11]

[15]

In detailed written submissions, which were expanded upon at your plea hearing, Mr Nathwani submitted that the following matters should be given prominence in mitigation of your sentence.
First and foremost, your early guilty plea is a weighty factor in mitigation and attracts a significant sentencing discount. By your guilty plea, you acknowledge responsibility for your offending and save the court the time and resources associated with a trial. Importantly, your guilty plea means the victim did not have to recount these highly personal matters in evidence at a trial or have her account challenged under cross-examination.
However, in my view the question of remorse is more complicated. Mr Newton states that during your assessment on 12 May 2025 and 5 June 2025, you openly acknowledged your guilt and are aware that your conduct reflects a serious transgression of the law. Additionally, when interviewed by police you made a number of frank admissions regarding your conduct.
As to the circumstances leading to your offending, you told Mr Newton that you working longer hours and that as your social life became centred around your work, you began feeling more and more lonely. In this context, you noticed the victim's interest in you and found it gratifying.
You told Mr Newton that you 'should have known better' and 'that you are sorry for letting everyone down'.[12]
In a letter written to the Court by your step-father, he describes you as being 'devastated' by this matter, and states that you recognise you have 'to be held accountable' for your actions. In another reference provided by a long-term friend, Mr Bradley Inifer, he states that you were visibly distraught and ashamed when discussing the offending, and he believes that you regret your conduct deeply.[13]
Against this however, Mr Newton states that during your assessment with him, you continued to stress the initiative taken by the victim, whilst portraying your role as a passive one. Mr Newton concludes that this perspective 'interferes with [your] capacity for remorse and with [your] ability to take responsibility'.[14]
Mr Burrows, after 12 sessions of offence specific treatment, concluded that while you express regret for your offending behaviour, this 'appeared to be primarily in response to the legal consequences' you are now facing.[15] He considers that you require ongoing treatment to improve your insight into the harm associated with such offending.
There is remorse inherent in your plea. Beyond this, I consider you are yet to fully appreciate the wrongfulness of your offending behaviour or the harm caused by such conduct. A guilty plea that is accompanied by genuine contrition is given greater weight in mitigation, as it also informs an assessment of the offender's prospects of rehabilitation. In your case, more work is to be done to fully appreciate the impact of your offending and to develop genuine remorse. This does not however, diminish the significant utility of your guilty plea for the reasons I have given.
Your youth is also relevant to your sentence. You were 21 at the time of the offending, and are now 22 years old. The law recognises that youthful offenders are more prone to impulsive, ill-considered or rash decisions than older, presumably more mature offenders.[16] Youthful offenders may not fully appreciate the nature, seriousness and consequences of their criminal conduct. Indeed, Mr Newton assesses you as being significantly more immature than your chronological age, stating that your 'level of maturity is well behind that expected of a man in his early twenties'. Mr Newton explains that your poor social skills add to the difficulties you have faced with maturation, stating:

[21]

I have regard to these matters and the prospect that imprisonment may place you at a greater risk of a deterioration in your mental health and hamper, rather than advance, your prospects of rehabilitation.
I turn now to assess your prospects of rehabilitation. There are some positive factors that tell in your favour. Firstly, you have voluntarily engaged in ongoing, regular treatment with Mr Burrows, who states that you are 'motivated to utilise treatment to avoid reoffending'.[20] Secondly, you retain the support of your family as is evident in the letters of support they wrote to the court on your behalf.[21]
Others who have known you a long time describe you as compassionate and caring. You are a person of otherwise good character, with no criminal history. I have had regard to your many certificates of achievement, including those recognising your long involvement as a volunteer firefighter with the CFA.[22] You are entitled to have the benefit of your previous good character also taken into account in mitigation of your sentence, although not without some qualification given the nature of your offending.
Mr Newton, having conducted psychometric testing, assesses you as a moderate risk of future sexual offending. Balanced against this, he states that you have made 'slow, but positive' progress in your treatment with Mr Burrows. There is no reason to suggest that you would not benefit from further treatment, which both experts recommend. In Mr Burrow's assessment you are motivated to continue in treatment. With ongoing treatment and maturation, Mr Newton concludes that your risk of re-offending would trend towards a 'low risk' range over the medium term.
Having regard to these matters, in addition to the punitive aspect of losing your employment and role as a CFA volunteer, I consider that you have reasonably good prospects of rehabilitation presently, but which will most likely improve over time with ongoing sex offender treatment and with added maturity. Specific deterrence still has a role to play in your sentence.

[22]

The offence of sexual penetration of a child under 16 is a 'standard sentence' offence. Parliament has specified that the standard sentence for the offence is 6 years' imprisonment. This is the period specified for an offence that is 'in the middle range of seriousness', taking into account only the objective factors affecting the relative seriousness of the offence. These facts are to be determined without reference to matters personal to the offender.[23]
The standard sentence, like the maximum penalty, is but one of a number of factors relevant to sentencing and does not affect the 'instinctive synthesis' approach to sentencing. In sentencing you, I must explain how the sentence I impose relates to the standard sentence. I will do that later in these reasons.
As far as I can determine them, I must also have regard to current sentencing practices for these offences. Such practices are only one factor in sentencing, and neither control nor set the boundaries of any given sentence. They are nevertheless important in the sentencing synthesis. I am also mindful that for a standard sentence offence, I can only have regard to sentences imposed since that scheme came into effect.[24]
I was referred to the decision of the Court of Appeal in Rose (a pseudonym) v the Queen.[25] In that case, the Court of Appeal upheld an appeal against a custodial term imposed for five charges of sexual penetration of a child under 16 and four charges of committing an indecent act with a child under 16. The offender was 18 years of age when he became involved with a 14 year old girl, an age gap of four years. The two had met at school and it must be recognised that the element of trust did not exist as it does here.
However, the offending in that case was more prolonged and the sexual acts were aggravated by a number of concerning features. The offender engaged in repeated sexual acts with the complainant over a four month period, including acts where the offender placed pressure on the victim to engage in the activities and, at one point, forcibly grabbing the complainant's wrist and pinning her arms down when he persisted in exposing her breasts. At one point, the offender had asked the complainant to send him sexualised images of herself. The sentencing judge found that the offender had been manipulative in his actions. I note there is no such suggestion here. On appeal, the sentence of 2 years, 5 months imprisonment was reduced to imprisonment for 7 months (equivalent to time served) to be followed by a community correction order of 12 months' duration. The Court of Appeal concluded that 'a CCO was well within the range of sentencing options available to the judge'.[26]
In its reasons, the Court of Appeal 'did not discount the significant presumption of harm and the actual harm suffered by the complainant or the power differential in the relationship. However, the court characterised the relationship as one 'between two adolescents who were pupils in the same school' and 'not without mutual affection and care', stating:

[24]

Here, the power imbalance is greater given your role as the victim's shift manager, but again it could not be said that the relationship between you and the victim was not without mutual affection and care. Nor was it accompanied by acts of force or manipulation or otherwise predatory behaviour.
I have also had regard to the various cases to which I have been referred by your counsel, where judges of this court have imposed sentences involving CCO's for broadly similar offending. I have also considered the decisions to which I was referred to by the prosecution following the plea hearing. However, on review the factual circumstances of those cases, there are a number of factors that distinguish them from your case.
In Giri v The Queen,[28] the offender was charged with sexual offending against three separate complainants, but had an intellectual disability and Autism Spectrum Disorder. The Court of Appeal reduced the offender's sentence from 12 months imprisonment with a conditioned CCO to 40 days imprisonment (time served) combined with a two-year CCO. In that case, the offender's impaired mental function was found to reduce his moral culpability and rendered him unsuitable for general and specific deterrence. The facts and circumstances of that case are quite distinct from those here.
Similarly, in Treloar v the Queen,[29] a 3-year CCO was imposed on appeal in circumstances where the offender, aged between 18-20 at the time of the offending, had an intellectual disability. In that case, the offender had engaged in sexual activity with the 14-year-old complainant and pleaded guilty to a number of charges, including sexual penetration of a child under 16. In resentencing the offender, the Court of Appeal found the offender was not an appropriate vehicle for general or specific deterrence and gave weight to the principles that apply when sentencing youthful offenders. The Court noted that a youthful offender should not be sent to an adult prison if such a sentence can be avoided.
The prominent sentencing considerations for offending of this nature are general deterrence, denunciation and community protection. Men of all ages, including younger males your age, must understand that engaging in sexual activity with underage girls is a serious crime that generally warrants stern punishment. As I have explained, engaging in premature sexual activity carries with it a risk of long term harm for the victim. This is equally the case whether the offender is a younger or older male. Others must be deterred from similar offending by the sentence I impose in order to protect children from the very harm this offence seeks to prevent. There is also a need for the court to denounce your conduct by the sentence imposed.
Balanced against these considerations, your youth and immaturity remain an important sentencing considerations for two reasons. Firstly, they operate to moderate the role to be played by general deterrence. Secondly, it is well-established that the rehabilitation of youthful offenders is a matter of considerable importance. At the age of 22, you have much of your life to live. Not only an offender, but the community more broadly, benefits where a young adult is able to engage in appropriate treatment and support to reduce their risk of future offending. In this way, community protection is also advanced.
Finally, in sentencing you I must also have regard to the sentencing principle of parsimony. This principle finds statutory expression in s 5(4) of the Sentencing Act 1991 which provides that the Court must not imprison an offender if the purposes for which the sentence is imposed can be achieved by the imposition of a sentence that does not involve incarceration.
Notwithstanding the serious nature of these charges, on your behalf Mr Nathwani submitted that in light of 'the powerful and compelling mitigating factors' an onerous community correction order was an appropriate sentence, having regard to your youth, your lack of priors and previous good character, your admissions to police, your engagement in treatment, and reasonably positive prospects of rehabilitation.
Contrary to these submissions, the prosecution submitted that only a custodial term could adequately reflect the primary sentencing considerations of general deterrence and denunciation, highlighting the breach of trust associated with your offending. The prosecution submitted that a combination sentence would be open to facilitate your ongoing rehabilitation.
Having given anxious consideration to these submissions, I consider that a lengthy community correction order, appropriately conditioned, can be imposed to reflect the various sentencing considerations to which I have referred.
The plea hearing was adjourned for you to be assessed by Community Corrections and you were found suitable for such an order, with a recommendation that you engage in a sex offender treatment program. In that assessment, you were found to be a low risk of 'general re-offending' and for that reason, supervision was not recommended. This finding is at odds with Mr Newton's conclusion that you presently pose a moderate risk of sexual recidivism and for that reason I consider supervision to be appropriate.
In the guideline decision of The Queen v Boulton,[30] the Court of Appeal confirmed that a CCO can operate as a punitive and rehabilitative order simultaneously, and emphasised the application of the principles in Mills with respect to youthful offenders, stating:

[27]

Balancing the matters to which I have referred, whilst having regard to the maximum penalty for each offence, I sentence you as follows:
On both charges, you are convicted and sentenced to a community correction order ('CCO') of three years' duration.
It is a condition of the CCO that you undertake 300 hours of unpaid community work and be assessed for and undertake an offence specific programs that are recommended. It is a further condition of the order that you be supervised by community corrections for its duration.
Although it was not recommended by Community Corrections, in light of Mr Newton's diagnosis of a mixed depressive and anxiety disorder, it is also a condition of the CCO that you engage in ongoing mental health treatment, ideally continued with Mr Burrows.
In addition to the conditions I have imposed there are standard conditions. First and foremost, you must not commit any other offences punishable by imprisonment during the three-year order. You must report within two working days to the Frankston community corrections office. You are required to advise your supervising corrections officer of any change of address where you are living and working and you must do so within two clear working days. It is a term of all community correction orders that you must submit to visits as directed and you must obey all instructions and directions of your corrections officer. You are not able to leave the State of Victoria without prior permission of your supervising corrections officer.
You should be aware that the order can be breached if you do not comply with either the conditions of the order or if you further offend while it is in place. If you do, you would have to return before me for breaching the order I have imposed this day. You may have to resentenced on the charges and I may have to sentence you for breaching the order.
Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty to these offences I would otherwise have imposed a sentence of two years, six months' imprisonment with a non-parole period of 18 months.
Finally, your offending attracts the provisions of the Sex Offender Registration Act 2004 and you are required to comply with the reporting obligations under that Act for life. You will receive a document at the conclusion of this hearing which details your obligations under that Act and which you will be required to sign.

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Judgment (41 paragraphs)

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