DPP v Saiin [2022] VCC 558

2 You have pleaded guilty at committal mention and no witnesses were called for cross-examination. Furthermore, your plea has facilitated the administration of criminal justice during the COVID-19 pandemic and I also accept it is evidence of some remorse for your offending. Your plea is a high-value early plea of guilty and I have taken it into account in your favour in mitigation of sentence.

3 You have no prior or subsequent convictions and there are no outstanding charges in your case. You are a first offender.

4 A prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows.

5 On 25 August 2019, you were working as an Uber driver, having commenced part-time work for that corporation in September 2018. You were driving your stepfather's Toyota Yaris sedan. The victim of your offending, a 20-year-old girl, had been out with friends the previous evening and that morning and had consumed a substantial amount of alcohol and was intoxicated. At 8:00 AM she booked an Uber to take her home and at 8.19 am you collected her from outside the Clique nightclub in King Street in the CBD.

6 When she got into your vehicle, she immediately passed out or fell asleep. You drove her to her home and when you were unable to rouse her, you decided to sexually assault her. You drove your vehicle to a nearby Coles Express and purchased a packet of condoms. You then drove to a car park near the victim's home. You got into the rear of the vehicle and lifted up your victim's skirt and opened the crotch area of the tights that she was wearing. You touched her vagina and after placing a condom on your penis, masturbated yourself.

7 You then fell asleep and when your victim awoke you were asleep next to her in the rear of the car. You then drove her home and your victim reported the matter to police.

8 On 2 September 2019, you were arrested by police and in an interview with them denied your offending or made no comment to questions put to you.

9 I have received in evidence a victim impact statement of your victim-survivor, detailing the profoundly traumatic effect your offending has had upon her. Your crimes have seriously harmed her well-being, quality of life and mental health. She requires ongoing psychological treatment and also medication. Her education has also been seriously disrupted.

10 It is plain from this summary that your offending constitutes particularly serious examples of the crimes you have pleaded guilty to. You cynically exploited an intoxicated vulnerable young woman for your own sexual gratification. Your offending was calculated and you expected your victim would have no knowledge of what you had done. To this day, she is haunted by her lack of knowledge of the extent and nature of your attack upon her.

11 It is the fundamental responsibility of this court to protect the community from predatory sexual offending like this and send a clear message to those entrusted with the safe passage of young persons such as your victim that offending of this nature will result in a significant sentence of imprisonment upon conviction. You must also be punished for your appalling breach of trust that your victim had placed in you.

13 You were born in August 1983 in Bangkok, Thailand and are now aged 38. You have been married twice and have a 15-year-old daughter who resides with her mother in Thailand. You completed your schooling at the age of 12 but returned to study as an adult and completed a business management degree at Sri Puah Thun University in 2009 in Thailand.

14 You arrived in Australia in 2015 on a student visa and studied hospitality. You are now employed as a chef in a Thai restaurant run by your mother who resides in Australia with her husband. Your sister also resides here in Melbourne.

15 You are not an Australian citizen, and in all probability you will be deported to Thailand on your release from prison. I accept that this will increase the hardship of imprisonment upon you. But you have family in Thailand and significant ties to that country.

16 I have received in evidence a psychological report of Mr Patrick Newton, detailing your background and psychological profile. You are of average intelligence and do not suffer from a mental illness. You currently suffer from anxiety related to your legal proceedings and this will abate no doubt on the conclusion of them.

17 Your somewhat limited development in relation to personal relationships indicates that you are a moderate risk of reoffending. But overall I accept that your prospects for rehabilitation may be described as reasonable.

18 I have also received in evidence a reference prepared by your mother indicating that you are very remorseful for what you have done. You have been in prison during the COVID-19 pandemic restrictions and I accept that this will increase the hardship of imprisonment upon you by reason of your separation from your family who you are close to.

19 I am conscious of the need to avoid double punishment in your case in relation to the charge of sexual assault and while the fact that you had abducted your victim at the time of the sexual assault plainly forms part of the circumstances of that offence, I have not treated that as an aggravating factor in arriving at the appropriate proportionate sentence in respect of Charge 2.

20 In the result, the sentence of the court is as follows -

21 On Charge 1, the charge of abduction, you are convicted and sentenced to be imprisoned for 2 years and 6 months.

22 In relation to Charge 2, the charge of sexual assault, you are convicted and sentenced to be imprisoned for 4 years.

23 I direct that Charge 2 is the base sentence and 1 year and 3 months of the sentence on Charge 1 be served cumulatively on the sentence imposed on Charge 2.

24 This makes for a total effective term of imprisonment of 5 years and 3 months. I direct that you serve 3 years and 9 months before becoming eligible for release on parole. I declare that you have served 5 days by way of pre-sentence detention not including today.

25 But for your plea of guilty I would have imposed a total effective term of imprisonment of 7 years and fixed a non-parole period of 5 years.