R v Khem [2008] VSCA 136

2 The maximum penalty for the offence the subject of count 1 was 10 years' imprisonment.[1] That was also the maximum penalty for the offence the subject of count 2.[2] The maximum penalty for the offence the subject of count 3, however, was only five years.[3]

3 The three offences were all committed within a short period of time within a single episode. The offences comprehended by counts 1 and 2 - that is, indecent act with a child under 16, and digital penetration of a child under 16 years - each involved what might be characterised as a completed act. The offence the subject of count 3, however, was constituted by an attempt to penetrate the complainant. It was an offence the maximum penalty for which was 50% of the maximum penalty fixed for the other offences. In my opinion, the sentence passed on count 3 - 3 years' imprisonment - was quite disproportionate to the sentences passed on the other counts - 18 months' imprisonment on count 1 and 3 years' imprisonment on count 2. I further consider that her Honour's sentencing remarks explain how she came to impose such a discordant sentence, and that the explanation lies in her Honour giving at least excessive weight to what she described as a 'significant aggravating feature'. It had to do with the appellant not wearing a condom.

4 Counsel for the Crown submitted in this Court that the sentence which the judge imposed on count 3 was explicable by this offence having been the last in a series of escalating offences against a young victim, such offences having been committed by an offender who stood in a position of trust vis-a-vis the victim; and was explicable as well by reason of the significant aggravating feature to which I have just referred. He submitted also that the particular feature deserved that characterisation.

5 The count 3 offence was the last offence in the series; but the three offences were all committed in a single episode in a compressed period of time. Next, in respect of all offences the appellant's position of trust vis-a-vis the victim was identical. Again, the judge used the phrase 'an escalating series of acts'. She must have meant that penile penetration was worse than digital penetration.[4] But even accepting such a distinction, it remains the fact that the count 3 offence was constituted by an attempt. By legislation, it could attract, at most, half the maximum possible sentence on count 2.

6 In the end, I think it is clear that the significant aggravating feature identified by the learned judge explains the severity - for such in my view it was - of the sentence which her Honour imposed on count 3. I think that the particular factor must be understood to have contributed substantially to the sentence.[5]

7 What the learned judge relevantly said in her sentencing remarks was this:

...the count of attempt, although carrying a maximum penalty of 5 years, that is half the penalty of the other two offences is seen, in the overall picture of the offending, a serious attempt of its type because it is the last act in an escalating series of acts and because there is no suggestion that you used a condom or took any attempt to protect Sarah from the consequences of unprotected sex.

It is a significant aggravating feature that you were exposing her to the risk of the transmission of a sexually transmitted disease or to the prospect of pregnancy, and it significantly compounds the seriousness of the offending, in my view.

8 There was a particular background to this finding. The judge, not the prosecutor, raised the issue. Her Honour did so after the plea had concluded, and after she had reserved. She brought the matter up just before passing sentence. This is what occurred:

HER HONOUR: The other matter . . . was this: So far as the attempted penile penetration is concerned, there is no suggestion I can see on the materials that there was any condom used.

COUNSEL: There is no suggestion on the materials, no.

HER HONOUR: Right, well, I take the view that a penetration or an attempted penetration by the penis without the use of a condom is an aggravating feature, that is, the failure to use protection, that again, because it shows a disregard for the rights and interests of the person being penetrated, because it's exposure to unprotected and unsafe sex, so there is the risk of - and it's the risk, not whether it is a reality, but the risk of transmission of a sexually transmitted disease as well as a risk of pregnancy; it's something I didn't raise with you before but it's a matter I would want to take into account and I certainly wouldn't do that without raising it with you.

Neither counsel made a substantive reply. Her Honour immediately proceeded with her sentencing remarks.

9 I bear in mind the fact that a judge's remarks are not to be read as one would read a statute. I bear in mind also the fact that what matters is what a judge says in sentencing remarks, and not in the course of argument. Even so, I have found it difficult to understand the way in which her Honour treated the appellant's failure to wear a condom as a feature significantly aggravating the count 3 offence.

10 Looking at her Honour's observations on the resumed plea, if one red-lined the words 'or attempted penetration' what she said would more readily be understandable. That would be so because of her reference to 'disregard for the rights and interests of the person being penetrated' (my emphasis). Even then, I doubt that it would be right to treat the risk of transmission of a sexually transmitted disease as being an aggravating factor in the event that there was no such demonstrable risk in the case of the particular offender.

11 Then one comes to her Honour's sentencing remarks. There was nothing, so far as those remarks reveal the situation, to suggest that the attempt carried any risk either of the appellant infecting the victim or of making her pregnant. She was not, as the judge had put it on the resumed plea, 'expos[ed] to unprotected and unsafe sex'. If her Honour in fact treated the offence as having been aggravated on that account, in my respectful opinion she erred.

12 Neither, as I apprehend it, was there anything to suggest that the appellant suffered from a sexually transmissible disease; or in that he had any belief (even if such belief was wrong) that there was a possibility that he suffered from such a disease. For that reason, the caveat which I expressed at [10] would be relevant.

13 Reserving a final position upon the matter, I accept, for the sake of argument, that her Honour was entitled to treat the offence constituted by count 3 as having been aggravated, to some extent, by the appellant not wearing a condom - on the footing that, in a general way, his action in forcing himself upon his victim whilst not wearing a condom showed a disregard for her welfare. Pressed by me, counsel for the appellant made a limited concession to that effect, submitting that the aggravating nature of such disregard, in the context of the particular offence, could not be other than small.

14 I agree with the latter aspect of the submission which I have just noted. I accept, for argument's sake, counsel's concession that conduct as described could constitute a circumstances of some aggravation - bearing to an extent upon the appellant's moral culpability. But I do not accept an argument that the situation could be equated with that which might obtain if there had been a completed penetration. Whatever be the reason why the attempt did not become a completed penetration, it did not do so in fact. The appellant could not be punished as if, in respect of a particular circumstance, he was to be sentenced for the offence of penetration. A disregard for consequences which culminates in the act required to enliven the risk of such consequences is in my opinion of a different magnitude to such a disregard which does not culminate in the required act. Authorities cited by counsel for the Crown as to the significance which might attach to an offender not wearing a condom were all cases in which the offender was charged with completed penetration.[6]

15 In my opinion, the sentences passed on counts 1 and 2 were appropriate; but the sentence passed on count 3 was discordant with those sentences. It was manifestly excessive because the learned sentencing judge attributed excessive weight to the circumstance which I have been discussing. That the judge did attribute excessive weight to that feature appears from three circumstances: first, the severity of the sentence passed on count 3 by contrast with the sentences passed on the other counts. Second, the judge's own characterisation of the extent to which the feature was an aggravating one. Third, the fact that it was the judge who raised the matter (the prosecutor had identified features of the offending upon which the

Crown relied in urging that a custodial sentence should be imposed - they did not include this feature) and who then described it in her sentencing remarks in the language which she did.

16 I agree with Pagone AJA, for the reasons he gives, that the appeal should be dismissed. I wish only to make some additional comments on the third ground of appeal. That ground alleges that her Honour erred by treating the fact that the appellant was not wearing a condom at the time he attempted to penetrate the victim as a significant aggravating circumstance, because it exposed the victim to the risk of contracting a sexually transmissible disease or to the risk of pregnancy.

17 Counsel for the appellant submitted that her Honour should not have treated the appellant's failure to use a condom as an aggravating circumstance, because the appellant was only convicted of attempting to penetrate the victim. Her Honour was not entitled to consider that there was any risk of disease transmission or pregnancy, since there was no evidence that this could occur as the result of sexual acts falling short of penetration. Further, there was no evidence that the appellant was infected with a sexually transmissible disease.

18 It is clear that an offender's failure to use a condom can be treated as an aggravating circumstance in cases where penile-vaginal penetration occurs.[7] In my opinion her Honour did not err in treating the failure to use a condom as an aggravating factor, in sentencing the appellant for attempted sexual penetration.

19 If necessary I would be prepared to take judicial notice of the fact that there is a risk that a number of sexually transmissible diseases, including genital herpes and genital warts, can be transmitted by genital contact falling short of penile penetration. There has been extensive community education on this issue.

20 However in any event I consider that her Honour was entitled to give weight to the fact that the appellant carelessly took the risk that intercourse, if completed, would expose the victim, a 14 year old girl, to the risk of pregnancy or infection. The fact that he did not have intercourse with the victim, either because he was unable to do so or because he was interrupted, does not alter his moral culpability for his irresponsible act of attempting to penetrate the victim without using a condom.

21 Ground 3 therefore cannot succeed. Although her Honour's description of the failure to use the condom as a 'significant aggravating feature', might suggest that she gave the matter excessive weight, the sentence she imposed for this offence was well within the range, given all the circumstances.

23 Leng Khem appeals, by leave, against sentence passed in the County Court on 3 December 2007. On that day, having earlier pleaded guilty, he was sentenced as follows:

Sexual penetration of a child under 16, being a count of digital penetration

The judge directed that four months of the sentence imposed on Count 3 be served cumulatively upon the sentence on Count 2. The total effective sentence was thus three years and six months. Her Honour fixed a non-parole period of two years and three months and declared that as at that date he had spent 525 days to be reckoned as part of the sentence already served. Her Honour made other orders which are not relevant for the purpose of this appeal.

24 There are three grounds of appeal. The first is that the learned judge erred in deeming irrelevant for the purposes of sentencing the prospect of the appellant being deported. The second is that the learned judge erred in failing to hold that the appellant's intoxication could be considered a mitigatory circumstance. Thirdly, it is said that the learned judge erred in finding that the appellant's failure to use a condom or take any attempt to protect the complainant from the consequences of unprotected sex was a "significant aggravating feature" whereby the appellant was "exposing ... [the complainant] ... to the risk of the transmission of a sexually transmitted disease or to the prospect of pregnancy" in a manner that "significantly compounds the seriousness of the offending".

25 The appellant was 26 years of age at the time of the offences and the complainant was 14 years of age. He was known to her and her family and was a guest at the family home on the night of the offences. He was present during the afternoon of Friday, 16 June 2006 when the complainant returned home from school at approximately 2.40pm. That day the adults consumed alcohol during the evening and at about 11.00pm the complainant's mother and several of the other adults left the house to go to a local hotel leaving the children in the care of their elder brothers and sisters. The complainant went to bed to sleep soon after midnight.

26 Some time during the night the appellant entered the complainant's bedroom, got into bed with her and began touching her intimately. He touched her breasts and her vagina, kissing her and inserting his tongue in her mouth. These circumstances led to the laying of a representative count of performing an indecent act with a child under 16 which is Count 1.

27 The appellant then got on top of her and digitally penetrated her, pulled down her lower clothing and tried to penetrate her with his penis. The digital penetration is Count 2 and the attempted penile penetration is Count 3.

28 He was discovered in the course of these acts and was confronted with them. It appears that the appellant was interrupted when the complainant's older brother entered the room. The two left, spoke outside, and the mother and other adults who had left were telephoned to return. The appellant left the home after a confrontation with the parties in which he denied any wrongdoing.

29 The appellant contended that the learned judge erred in deeming irrelevant for the purposes of sentencing the prospect of the appellant being deported. The ground, as relied upon in the appeal, was not that the learned judge ought to have considered the fact of deportation as relevant[8], but rather, that she ought to have taken into account the possible effect upon the appellant of the prospect of deportation. The appellant had made Australia his home. He believes that the child born to his former de facto partner is his and his potential relationship with the child was said by him to be very important to him. It was said on his behalf on the appeal that the simple state of indecision brought about by the prospect of being forced to leave Australia and of the consequence of this upon the potential relationship with his child would in itself be burdensome upon the appellant. Simply not knowing whether he would be deported would, in these circumstances, it was submitted, constitute a form of extra-curial punishment sufficient to mitigate penalty. It was contended that this was incorrectly disregarded by her Honour as a matter going in mitigation of sentence.

30 The submission which had been put to her Honour by the appellant's counsel was that what she should take into account in mitigation was "the loss of the prospect" of being able to establish a relationship with his putative child with whom, in the five or so years since the child's birth, the appellant appears not to have established any link.

31 Her Honour did not say that it was irrelevant for her to consider in sentencing that a consequence of deportation might be to impose upon the appellant the additional burden of personal loss in being denied the opportunity to establish a relationship with his putative child. What her Honour correctly put out of her mind was the prospect or the possibility of his deportation as such. The potential impact of the loss of the prospect of being able to form a relationship with the appellant's putative child was taken into account by her Honour as counsel for the respondent correctly pointed out. Her Honour said:

Although you have not had any contact with the child, who I am told is now about four and a half or five years old, the notification of the desire for divorce reduces and clearly reduces in your mind the prospect of being able to form a relationship with that child.

That "prospect" on the material before her Honour, and as it continued on appeal, was so speculative as to be incapable of constituting an extra-curial punishment of a sufficient nature to attract any weight in the sentencing process. The appellant married an Australian citizen in Sydney in 2002. His wife fell pregnant at about that time and moved to Melbourne. He believes, but has never been sure, that the child was his. He came to Melbourne now some three years ago to reconcile with his wife but his wife does not want to reconcile with him and is seeking a divorce. In fact he has not seen his wife or his putative child at any stage whilst in Melbourne. He appears never to have seen his putative child and has no established relationship with the child.

32 In any event the learned judge did take the impact of deportation into account in the appellant's favour when determining the weight to be given to the principle of specific deterrence. Her Honour noted that he had been punished for his actions and that it appeared that he would and may be punished in ways that she could not reflect in the sentence, but went on to accept that the consequences upon him had punished him in personal ways and had helped bring home to him the seriousness of the consequences of his conduct. Her Honour expressly took into account these matters as firming his resolve not to re-offend.

Failure to use a condom a "significant aggravating feature"

33 The next ground of appeal was that the learned judge had erred by finding that the appellant's failure to use a condom or to take any attempt to protect the complainant from the consequences of unprotected sex was a "significant aggravating feature" whereby the appellant was exposing her to the risk of a sexually transmitted disease or to the prospect of pregnancy in a manner that significantly compounded the seriousness of the offending. The argument was that the appellant had not been charged with an act of sexual penetration and, therefore, in the absence of relevant scientific evidence of an actual risk of a sexually transmitted disease or the prospect of pregnancy, it was not open to her Honour to conclude that the appellant had exposed the complainant to the type of risks described.

34 In my view her Honour was entitled to take into account the absence of a condom as a specific aggravating factor. In my view it is not to the point that the charge was one of attempt of penile penetration rather than of actual penile penetration. The attempt may fairly be described as an attempt without the use of a condom and as such carrying whatever risks may be inherent in such an act done in disregard of those risks. In my view it was a matter which her Honour was entitled to take into account as going to moral culpability showing recklessness in relation to an attempt upon a 14 year old girl. An attempt with a condom is different to one without. I do not consider that her Honour imposed a manifestly excessive sentence upon the appellant in respect of this offence on the facts and circumstances in which they occurred. The sentence imposed by her Honour on this count was within the range that could be imposed and is not excessive because it may be expressed as 50% of the maximum for this offence whilst the sentences imposed by her Honour on the other two offences was a lower percentage of the maximum that could be imposed on these offences.

35 The last ground of appeal was that the learned judge had erred in failing to hold that the appellant's intoxication could be considered a mitigatory circumstance.

36 It was contended that her Honour ought to have treated the appellant's state of intoxication as a mitigating circumstance. In this regard her Honour said:[9]

Fifth, alcohol played a role in the commission of these offences. I am told that you were unused to drinking and I accept that you were affected by alcohol. It follows from that that it is likely that your judgement was impaired and that you were less able to prevent yourself from engaging in disinhibited or impulsive behaviour. I should make it clear that although I accept your offending was opportunistic, I do not consider the fact that you were impaired by alcohol to be a mitigating circumstance. It was your choice to drink and to drink as much as you did on this night. It is not suggested that you were so impaired that you were unable to form an intent or were unaware of what you were doing. Your behaviour at the time and your denials immediately after the event make that clear. In those circumstances, as the authorities make clear, self-induced intoxication is not of itself a mitigating circumstance.

The appellant's argument in this regard had two limbs. The first was that her Honour ought to have found that the appellant's intoxication was a mitigating circumstance in view of her acceptance that he was unused to drinking and that his judgment was impaired and that he was therefore less able to prevent himself from engaging in disinhibited or impulsive behaviour. The second aspect was a criticism of her Honour's reasoning suggesting that self-induced intoxication was not of itself a mitigating circumstance on the specific matters her Honour stated in the passage preceding the last sentence quoted above.

37 I do not think either complaint is made out. The last sentence in the passage quoted above should not be read as one might a statute. Her Honour was saying no more than that self-induced intoxication does not necessarily act as a mitigating circumstance. In R v Groom[10] this Court said that "there is no proposition that intoxication is a matter which will generally, let alone always, go in mitigation".[11] Her Honour was not saying, and should not fairly be read as saying, that there was a general proposition of law that self-induced intoxication is not of itself a mitigating circumstance in those cases where it was found (a) that an offender had chosen to drink and had drunk as much as he or she did, and (b) that the amount that he had drunk was not so great as to impair his ability to form an intention or to be aware of what he was doing. In other words, the last sentence of the passage from her Honour's judgment quoted above should not in my view fairly be read as articulating a proposition of law which would prevent self-induced intoxication to be taken into account as a mitigating circumstance if the facts required that it be taken into account.

38 In my view her Honour was entitled to take the view on the facts before her that the appellant's state of intoxication, and the circumstances in which he became intoxicated, was not a mitigating factor. Implicit in her Honour's observation that the appellant was not so impaired as to be unable to form an intent or not to be aware of what he was doing, are the particular facts and circumstances of the intent he formed and the acts he performed. That intention and those acts were done deliberately to a 14 year old girl sleeping in a room in a house in which the appellant was a guest at a time when he was 26 years of age and she 14. Her Honour was entitled to form the view that the appellant's moral culpability of an attack on a sleeping 14 year old girl in her bedroom by a 26 year old man was reduced by reason of his voluntary ingestion of alcohol and the degree of sobriety he appears to have retained. The alcohol may have had a disinhibiting effect on him, and it may have impaired his judgment, but her Honour was entitled to form the view she did.

39 In fact, her Honour treated the appellant's voluntary ingestion of alcohol in a manner favourable to him. First, she did not treat the voluntary ingestion of alcohol as an aggravating circumstance. Next, her Honour treated in the appellant's favour his coming to understand the role which alcohol played in the commission of the offences. Specifically her Honour gave weight to this in considering specific deterrence and the appellant's prospects of rehabilitation.

[1] Crimes Act 1958, s 47.

[2] Crimes Act, s 45(1)(c).

[3] Crimes Act, ss 45(1)(c) and 321P.

[4] Although sentencing theory in Victoria holds that one form of vaginal penetration is as bad as another.

[5] The sentence is not explained by the appellant having been sentenced as a serious sexual offender on that count. The Crown did not press for the imposition of a disproportionate sentence pursuant to s6D of the Sentencing Act 1991, and the judge specifically said that she did not sentence on that basis.

[6] In R v Magnier [2004] VSCA 202, the appellant, who committed incest, not only had unprotected sexual intercourse with his young victim, he made her pregnant. Gillard AJA agreed, at [63], with the sentencing judge that the instance of intercourse which resulted in the pregnancy was a serious one because it showed an irresponsible and callous attitude towards the victim. In R v H [2005] NSWCCA 282, an offender forced a woman, who had already been sexually assaulted by other men, to perform oral sex upon him whilst he was not wearing a condom. The Court understandably described the offence, at [119], as a serious instance of the crime. In R v MAK and ors [2005] NSWCCA 369, one offender had protected intercourse and then unprotected intercourse with the victim; whilst a second offender, having had protected intercourse, then had unprotected intercourse despite the victim pleading with him to wear a condom. Grove J observed, at [117] that there was escalating seriousness in an offender 'proceeding with a new a new act of intercourse without wearing a condom'. R v MSK and MAK [2004] NSWCCA 308; (2004) 61 NSWLR 204 is the report of the failed appeals against conviction by two of the offenders whose sentence appeals were dealt with in R v MAK and ors. In the course of his reasons for judgment, Wood CJ at CL referred, at [66], to the difficulties of complainants giving evidence in a case such as this, and of reliving 'one of the worst forms of invasion of privacy' which carried the risk (where a condom was not worn) of unwanted pregnancy and of serious sexual infection. Finally, I mention R v Cleary [2004] VSCA 14., a case not cited by counsel for the Crown. An appeal against sentence for acts of sexual penetration against a girl under 16 was allowed. In the course of his reasons, Bongiorno AJA said that the fact that the appellant had ejaculated inside the victim clearly exacerbated his moral culpability. It might be inferred that it demonstrated a disregard for her welfare over and above that implied from the commission of the offence itself. The circumstances of each of the matters which I have summarised underline the significance in each instance of the context and the completed act.

[7] R v Magner [2004] VSCA 202, [63] (Gillard AJA); R v MMK [2005] NSWCCA 369, [117] (Grove J).

[8] See R v Shrestha [1991] HCA 26; (1991) 173 CLR 48, 58; Dauphin v R [2002] WASCA 104; R v Phuoc Van Bui [2006] VSCA 96.