IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
SEXUAL OFFENCES LIST
Case Nos: CR-21-02270
CR-22-02075
Indictment No. L11307823.1A
L11307823.B

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
SOPHEAP KHUN		

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JUDGE:	HER HONOUR JUDGE HOGAN	
WHERE HELD:	Melbourne	
DATE OF HEARING:	6 March 2023	
DATE OF SENTENCE:	21 July 2023	
CASE MAY BE CITED AS:	DPP v Khun	
MEDIUM NEUTRAL CITATION:	[2023] VCC 1257		

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW 
Catchwords: 	Offender pleaded guilty to one charge of recklessly causing injury (Charge 1 on plea indictment) and following a trial was convicted of one charge of rape by compelling the victim to sexually penetrate herself by introducing her finger into her vagina (Charge 3 on trial indictment), and one charge of common law assault (Charge 4 on trial indictment) – victim was 32 year old single parent of three children in whose home offender was staying – offender had no prior criminal history – some mental health issues which would make prison more burdensome, as well as the risk of deportation	
Legislation Cited:	Sentencing Act 1991
Cases Cited:	Hague v The Queen [2022] VSCA 17; Wan v The Queen [2019] VSCA 81; Guden v The Queen [2010] 28 VR 288
Sentence:	Total effective sentence is 3 years and 2 months imprisonment, with a non-parole period of 2 years and 2 months imprisonment. 
	s6AAA (in relation to charge 1 on the plea indictment): 7 months’ imprisonment.

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr J Malik	Solicitor for Public Prosecutions	
			
For the Accused	Mr G Davis	Victoria Legal Aid	

HER HONOUR:

1	Sopheap Khun, following a jury trial you were convicted on 15 November 2022 of one charge of rape by compelling your victim to sexually penetrate herself by introducing her finger into her vagina (Charge 3 on trial indictment L11307823.1A).  This offence carries a maximum penalty of 25 years’ imprisonment.  You were also found guilty of one charge of common law assault (Charge 4 on the trial indictment).  This offence carries a maximum penalty of five years’ imprisonment. 
2	Prior to the trial, on 10 November 2022 you had pleaded guilty to one charge of recklessly causing injury (Charge 1 on the plea indictment L11307823.B).  This offence carries a maximum penalty of five years’ imprisonment.
3	Your victim was aged 32 years at the time of all your offending and had three children to a previous relationship.  You and your victim had met some years ago when the two of you had a job picking fruit in a rural area.  In or about March 2019, you needed somewhere to stay and moved in with the victim and her three children who, at that stage, were aged approximately 10 and 9 years and 18 months respectively.  Your victim gave evidence at the trial that you were in an intimate relationship with her at the time of offending albeit that you would come and go from her house as you pleased.  When interviewed by police, you had denied that you were in a girlfriend-boyfriend relationship with her and claimed that the two of you had never had sex. You stated that you just rented a room at her house and, on some nights, you slept over there.
4	The offence of recklessly causing injury to which you have pleaded guilty was committed on 13 November 2019.  You were standing in the doorway of the victim’s bedroom at her home, whilst she was in bed with her infant son.  The two of you had an argument during which you threw a remote control for an air conditioner at her.  This struck her to the eye causing bruising.  The victim took photographs of her eye.  These were tendered as Exhibit “3” at the plea hearing.  The photographs show deep purple bruising on the outside corner of your victim’s left eye, purple bruising on the upper eyelid area, and a large area of yellowish coloured bruising surrounding the eyes.  There also appears to be a laceration at the corner of the left eyebrow, adjacent to which appears to be some dark bruising in the midst of the yellowish bruising.
5	The offences of rape by compelling sexual penetration and common law assault were committed by you on 16 May 2020.  The lead-up to the offending was described by the victim in her evidence at trial.  She stated that she had just returned home from her sister’s house and, from the time she returned, you wanted to know where she had been and whether she had been going to meet someone to have an affair with a man.  She stated that you were talking loudly and aggressively, and demanded many times to know where she had been.
6	She described that, after she had put her infant son to bed, she went into the bathroom and you followed her.  She tried to shut the bathroom door, but you pushed the door open and shut it again.  She stated that, prior to entering the bathroom, you had told her to check her vagina for sperm in an “ordering tone of voice” some two to three times.  Once in the bathroom, you told her that she did not need to wash herself, she just needed to put her finger in her vagina and, if there was sperm, it would be on her finger.  Your victim left the bathroom to go into the bedroom and you followed her and continued to tell her that she should put her finger into her vagina so that the semen would come out, which would indicate that she had slept with another man.  She stated that, overall, you had said this some four or five times.  Ultimately, your victim did what you demanded and put her finger into her vagina and showed you that there was no sperm on it. (This is the conduct constituting Charge 3 of which the jury has found you guilty.)
7	In your record of interview, you had admitted that you had asked your victim lots of times to prove that she had not had sex with another man.  You stated that you had told her not to lie to you and to go and check her vagina in the bathroom.  However, you claimed you did not mean it and were only teasing her, not blaming her.  You stated that you did not make her put her finger in her vagina to see if there was sperm.  The position put on your behalf at trial was that your victim did not put her finger in her vagina.
8	Shortly following your conduct compelling the victim to penetrate her vagina, you committed the common law assault of which the jury found you guilty.  This involved you pushing her down onto the bed.  Her evidence at trial was that you were using one hand to strangle her and squeeze her throat, and one hand to cover her face so that she could not breathe and she thought she would die.  She was able to move your hand a little bit and yelled for her daughter to come.  She was gasping for air and she could not see as you were on top of her, strangling her, and she was breathless.  Her oldest daughter came and bit you on the arm, bringing the assault to an end.  (This is the conduct constituting Charge 4 of which the jury has found you guilty.)
9	At your trial, there was evidence from your victim’s older daughter, who was aged 11 years at the time of the assault. She had made a VARE on 17 May 2020.  She stated that she had entered the bedroom and witnessed you strangling her mother.  She stated that her mother was lying down and demonstrated that you were on your knees straddling her and choking her.  She also stated that you were covering her face and she could not breathe, and so she bit you to protect her mother.  She demonstrated that she had bitten you on the left arm (indicating an area above the left elbow).
10	The informant, Detective Senior Constable McLean, gave evidence at trial that, when police interviewed you on 17 May 2020, they observed a bruise on the lower part of your left upper arm, just above the elbow.  In your record of interview, you had claimed that this had occurred at a time when you had put your arm up to protect yourself from your victim, who had hit you with a mobile phone.
11	Following the assault on the evening of 16 May 2020, your victim telephoned 000 and, with the assistance of an interpreter, complained that you had strangled her.  You had called 000 yourself, after your victim had made her call.  You said there was “only a small issue” which you had been arguing about and had hit your victim “only a little bit”.  You claimed that your victim had “fought (you) and (you) raised (your) hand to defend yourself. That’s all”. You left your victim’s address prior to police arriving.  You attended Springvale Police Station the following day where you were interviewed and denied that you and your victim had been in a sexual relationship, and made various other comments to which I have earlier referred. You denied the offending of which the jury found you guilty, as well as one other charge of assault and two other charges of making a threat to kill your victim of which you were acquitted by the jury (Charges 1, 2, and 5 on the trial indictment). 
12	During the trial, evidence was given by the victim that you had previously been violent towards her during the relationship, and this was relied upon by the Prosecution as context evidence.  I make it plain that you are not to be sentenced for any other alleged misconduct towards your victim, but only on the two charges of which the jury has found you guilty and the other charge to which you have pleaded guilty.
13	You are presently aged 38 years, having been born on 30 April 1985.  You come before the court with no prior criminal history.
14	In a plea on your behalf by Mr Davis, the court was told that you were born in Cambodia and migrated to Australia in 2009 in order to be married.  You had been granted a partner’s visa and status as a permanent resident here.  You remained in a relationship with your wife here in Australia, before separating in or about 2016. You have two daughters from that relationship, aged 11 and 13 years respectively, who live in Melbourne with their mother.
15	When you first came to Australia in 2009 from Cambodia, you worked as an agricultural labourer in market gardens.  Then, in or about 2012 or 2013, you obtained work with McKay Rubber Industries. Your job involved operating a machine which made rubber door seals for cars and was apparently of a repetitive nature. 
16	In or about March 2015, you began to experience symptoms of pain in your right elbow.  You continued to work, but the pain got worse and you went to your general practitioner.  You had a Cortisone injection which did not help, and later underwent an MRI examination.  Apparently, you had suffered a partial thickness tear of a tendon and this necessitated you undergoing surgery in August 2015.  
17	You were off work for a time and then returned to work on reduced hours and light duties, but continued to suffer pain in your right arm and shoulder going into your neck.  It seems that, at some stage, you developed symptoms on the left side, by way of tendinosis of the left elbow and left subacromial bursitis, because of overusing your left arm.
18	According to various reports which were compiled in relation to a WorkCover claim made by you, you tried to work reduced duties but were under pressure to increase them.  You were not managing and began to suffer anxiety and depression.  Your general practitioner apparently referred you to Mr Robert Postlethwaite for psychological issues arising out of your work injury.  Mr Postlethwaite saw you monthly from January 2016 to December 2016, and then again from September 2017 to January 2018, at which time you ceased attending.  Apparently, your inability to cope at work created tension in the workplace and, also, at home because things were financially difficult.  
19	At one point, you had apparently been prescribed two antidepressant medications.  You were suffering from stress, headaches, worries and suicidal ideation and concern that you might lose your compensation payments.  A psychiatrist, who examined you on behalf of the Victorian WorkCover Authority, assessed you in July 2016 as suffering from an Adjustment Disorder with depressed and anxious mood, but thought that you may be on the way to developing some sort of pain-related psychiatric condition.
20	Your own treating psychiatrist, Dr Dharmage, had seen you on five occasions between July and September 2016.  He had considered that you were suffering a Major Depressive Disorder and generalised anxiety disorder, and had prescribed increasing dosages of antidepressants for you.  Dr Dharmage noted that your symptoms of depression had progressively worsened, and that you had impaired concentration, low energy and lack of motivation, fleeting suicidal ideation, heightened anxiety, irritability, muscle tension, headaches, fatigue and disturbed sleep, as well as panic attacks.  In addition, there were some reports of hearing your own thoughts and experiencing vague persecutory delusions.
21	Things worsened for you in that, apparently by the end of 2016, you had separated from your wife and moved out on your own, away from your family.  Then, in September 2017, you were put off work by your employer, and by January 2018 your WorkCover payments ceased.  Your counsel mentioned that you have a WorkCover claim that is unresolved, but was unable to provide any details relating to it. 
22	The previously mentioned report from your treating psychologist, Mr Postlethwaite, noted that, in the first two years that he had treated you, the focus had been on your depression and anxiety, which had developed as a consequence of the pain and physical limitations you experienced and the loss of control over your life created by your injury and involvement with the WorkCover system. After you were charged with these offences, your general practitioner again referred you to Mr Postlethwaite and he saw you on four occasions between 29 April 2020 and 15 July 2020.  In his report, he noted that, when he saw you in 2020, there had been little change in your presentation.  He noted no sense of purpose or direction in your life.  He considered that you were filling in time, rather than using time to achieve anything meaningful, and had limited insight and understanding of abstract concepts.  He thought that you fell at the lowest end of the average intelligence range, and that an Adjustment Disorder was the most appropriate diagnosis for you, as you had never resolved the issues associated with your injury, or developed a longer term plan for your life.  He stated that you experienced low grade depression, but were no longer clinically depressed.  
23	As far as the charges are concerned, Mr Postlethwaite considered that you had very limited understanding of their seriousness and maintained that your behaviour was intended to be a joke, rather than a serious issue.  He did note that he had never known you to present in a way that suggested that you had bad intent or lack of care for others.  He considered that, if you behaved badly, it was most likely to be poor judgement or lack of understanding, rather than being motivated by any evil intent.
24	Your solicitors had sent you to be assessed by a forensic psychologist, Dr Aaron Cunningham, whose report dated 7 February 2023 was tendered.  Dr Cunningham took a history that you had been born in Cambodia and had never known your father.  Your mother raised you and your older brother, who had died when he was 15.  She struggled financially and you were bullied for not having a father.  He stated that you completed Year 12 in Cambodia and had apparently competed in archery for some three years. You have a 14 year old son in Cambodia, who lives with your mother, in poverty stricken circumstances at a temple.  (I here interpolate that, according to your counsel, this son is the product of a brief relationship between his mother and yourself at some stage shortly before you came to Australia, and you had hoped to obtain a visa for him to come to Australia). 
25	Mr Cunningham noted that you had begun to suffer depression following your workplace injury, and that you had been treated with Cymbalta and Quetiapine.  You told him that you are innocent of the charges.  He noted that you do not have hope in life and had considered suicide before your court hearing.  He considered that you suffer from a Major Depressive Disorder with symptoms of depressed mood, sleep disturbance, feelings of worthlessness and thoughts of death.  He considered that you were predisposed to such a disorder because of the difficulty of your childhood environment in Cambodia and that, once you had come to Australia and were no longer able to work, the injury precipitated your state of depression.  You told him that your depression had increased in custody, which he considered was partly due to the stress and uncertainty of what would happen to you.  He considered that, if you received a long sentence, you would need to be assessed and treated by psychiatric services. He recorded, that you have a sense of powerlessness in not being able to provide for your family members.  He considered that your perception of worthlessness would likely increase in the context of a long-term prison sentence, and you would benefit from a disposition that would facilitate your rehabilitation.  
26	Consistent with the jury verdict, I am satisfied beyond reasonable doubt that you had been in some form of sexual relationship with your victim and that you had become increasingly jealous that she may be having a relationship with other men.  As previously mentioned, you admitted to police in your record of interview that, on the evening of 16 May 2020, you had had an argument with your victim during which you had effectively accused her of going out to see her boyfriend, and asked her to prove that she had not done so by going to the bathroom and checking her vagina to see if it had men’s sperm in there.  You agreed that you had asked her “lots of times” to prove that she had not had sex with another man, albeit that you claimed you were just teasing her and not serious.  I am satisfied that the conduct of which the jury has found you guilty happened in the context of you having an increasingly dysfunctional relationship with the victim, where you had become overbearing and bullying in your conduct towards her, as evidenced by your admission to police that you told her not to lie to you and to go and check her vagina.  The jury obviously rejected your explanation to police that you were teasing your victim.  I find your behaviour in committing Charges 3 and 4 to be consistent with the increasingly jealous, angry behaviour which your victim described to the jury.  Your victim stated that the two of you had been friends and had slept with each other, but she did not regard you as her boyfriend.  She stated that there had been arguments between the two of you because you owed her money, but the arguments were not only about money.  She stated that you looked down on her and were very controlling, not wanting her to meet anyone or go anywhere.
27	By your plea of guilty to the charge of recklessly causing injury, you have admitted that, some six months prior to the offending of which the jury has found you guilty, you assaulted your victim on 13 November 2019 by throwing a remote control at her which struck her eye.  It was fortunate that it did not strike your victim in the eye, itself, causing some damage to her vision.  On that occasion, your victim was actually holding her infant son, then aged 2 years, as the remote control struck her head.  On the occasion of your offending on 16 May 2020 of which the jury has found you guilty, your victim’s three children were in the house.  It is clear from a recording which was tendered as Exhibit “B” at the trial that, shortly prior to this offending, you had been insulting your victim, calling her a cheap person and a whore within hearing of her then 11 year old daughter, who made the recording.  After your offending had taken place, another recording made by that child (Exhibit “C” at the trial), shows that, having attempted to strangle your victim, you were completely unrepentant.  You told her to stop screaming and crying and howling, and asked her how she could let the children record while she was screaming obscenities at you.  It is an aggravating feature of your offending that the children were present. Your victim’s infant son could have been injured when, you assaulted her in November 2019. It is shameful that your victim’s 11 year old daughter had to come to her rescue on 16 May 2020 while you were straddling her and pinning her down, and choking her, while also having your hand over her face impeding her capacity to breathe.
28	Mr Khun, you should be in no doubt as to the gravity of your offending.  In particular, the seriousness of Charge 3 on the trial indictment, rape by compelling your victim to sexually penetrate herself, is indicated by the maximum penalty of 25 years’ imprisonment.  In addition, it is a Category 1 offence under the Sentencing Act 1991, which mandates a court to sentence you to a term of imprisonment unless you are able to demonstrate that a special reason exists pursuant to s10A of that Act.  No special reason exists in your case.  However, Mr Malik, on behalf of the prosecution, fairly conceded that, although you repeatedly demanded that your victim insert her finger in her vagina to prove whether or not there was sperm there and, followed her around the house whilst making these demands, and that such conduct was demeaning, the surrounding circumstances were somewhat unusual.  
29	Mr Malik acknowledged that there were no aggravating factors such as violence relating to the actual penetrative offence, that is was of short duration, and could be regarded as falling towards the lower end of the scale of seriousness for such an offence.  However, he submitted each of the assaults were serious examples of assault.  I agree with the prosecutor’s comments and have already commented that it was fortunate the offence of recklessly causing injury did not cause vision damage to your victim.  The episode of choking was clearly very distressing and frightening.  
30	Your victim has not made a Victim Impact Statement, but it was apparent from her evidence and her manner at the trial that she was very upset and offended by you suggesting that she was a dirty woman or a whore.  She stated that she felt that she had to obey you to insert her finger in her vagina as she feared for the safety of the children and herself and did not know what you might do after she fell asleep.  Further, she was physically distressed as she was struggling to breathe as you straddled her, pinned her down, and squeezed her neck as well as cov	ering her nose and mouth area.  She stated that she could not gasp for air and nearly choked to death.  She could not even get saliva in her mouth until her daughter intervened.  This is behaviour of a brutish and uncivilised nature.  Too often men in this society act in this way towards women.  In sentencing you, this court must strongly denounce it and there must be a message sent to other members of the community who are inclined to treat women this way, that it will simply not be tolerated and will be appropriately punished.  No man has the right to control, humiliate or assault any woman in the way you did.  A woman is not your property and is not to be treated as some sort of lesser being. 
31	In sentencing you, you are entitled to some discount albeit modest for your plea of guilty in relation to the charge of recklessly causing injury.  This was a late plea entered only on the date of the trial.  It has some utilitarian value in that it would have been the subject of a separate, short trial, but I find no evidence of remorse in relation to it.  In sentencing you, although it is no excuse I acknowledge that it was not pre-meditated, but an action committed in the course of an argument with your victim when you were apparently suffering depression and anxiety. 
32	I note that you come before the court with no prior criminal history, but your lack of acknowledgement of the offending of which the jury has found you guilty is of concern.  I note that your psychologist, Mr Postlethwaite, considered that you had limited understanding of the seriousness of the charges and maintained that your behaviour was intended to be a joke.  How it could be regarded as in any way amusing that you humiliate a woman by telling her to insert her finger into her vagina and bring it out to demonstrate that there is or is not sperm present on it, is totally incomprehensible.  
33	Mr Postlethwaite also mentioned that you had never presented to him in a way that suggested any bad intent or lack of care of others but, consistent with the jury’s verdict, as I have said, I am satisfied beyond reasonable doubt that you had adopted a bullying and overbearing attitude towards your victim in circumstances where you were being permitted to live in her home with her children.  
34	Whilst there is evidence that you were suffering from depression as a result of your work-related injury, there is no evidence before me linking your psychological state with your offending.  It appears from the assault charges, particularly charge 4, that you have a problem controlling your anger.  However, given that in all the circumstances I consider that only a term of imprisonment is warranted, I do take into account that your Adjustment Disorder with mixed anxiety and depressed mood, which has required treatment by medication whilst you are in prison, makes prison more burdensome for you than for a prisoner without that condition.  I also accept that your mental health may deteriorate in custody as expressed by Mr Cunningham and would urge that it be carefully monitored by custody authorities.  Also, your poor English skills make prison an isolating experience, as does the fact that you apparently experience ongoing pain relating to your work-related injury.  These two latter factors also add to your burden of imprisonment, although I note that you are undertaking some work which you told the court involved sorting out nuts and bolts and is not part of a production line where pressure is put on you, and you can stand and sit at will.  You are also undertaking English classes. However, I accept that your poor capacity in the English language limits greatly what rehabilitative courses may be made available to you.
35	Your counsel, Mr Davis, submitted that, as you are not an Australian citizen, the fact of your conviction and sentence on these matters mean that there is a reasonable expectation that you will be deported.  Mr Davis further submitted that you were unlikely to be granted parole.  As was pointed out by the Court of Appeal in the case of Hague v The Queen, it is a “vexed question” as to whether a sentencing judge should make an allowance for any reduced prospects of being granted parole.  In fact, the court did not determine this issue, but pointed out that s5(2AA)(a) of the Sentencing Act would appear to be an obstacle to taking any potential decision in relation to parole into account.  That provision states as follows:
“(2AA)	Despite anything to the contrary in this Act, in sentencing an offender a court must not have regard to—
	(a)	any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind;”
36	There is no material before me at all as to what impact the prospect of deportation would have upon your being granted parole.  This factor, together with the provision to which I have just referred, in my view, makes it inappropriate that I should speculate in order to give weight to such a factor.
37	Unlike the position in Hague’s case, there was no evidence put before the court that you have been notified of a cancellation of your visa or revocation of your permanent residency status.  However, the prosecution has conceded that it is appropriate to take into account the principles established in Guden v The Queen.  In other words, there is a prospect or real chance that you will be deported to your country of origin, Cambodia, in the future.  This can be considered as an extra curial form of punishment.  This carries with it the real chance that you have lost the opportunity to settle in this country I take these matters into account, albeit that the nature of such extra curial punishment is not as great as if you had come here to Australia as a child rather than in 2009 when you were aged approximately 24 years.  Nevertheless, you do have two children who reside in this country and potential deportation would mean an end to the opportunity for you to play a significant and close role in their lives and to sustain any meaningful relationship.  
38	Your counsel has stated that, if you are deported to Cambodia, this would compel you to live in poverty, as your 14 year old son and your mother, live together and are reliant on charity by staying in a temple.  While the court acknowledges that Cambodia has a standard of living which is, generally speaking, below that in Australia, you speak the language and are familiar with the culture, and two-thirds of your life has been spent there.  Your injury may impede your capacity to obtain work, however, it would appear from the tendered reports that it is now a psychologically-based rather than a physically-based injury. It is appropriate to acknowledge that whilst you are in prison, the prospect of deportation is likely to weigh on your mind and, in this regard, it is relevant to note that you already suffer anxiety and depression flowing from your workplace injury.
39	Finally, it should be acknowledged that there has been some delay between the commission of Charge 1 on the plea indictment and you being charged for it, as well as delay between the commission of the offences on 16 May 2020 and the trial of those offences.  Whilst some of the delay after the verdicts of guilty in the trial was occasioned by you in needing to obtain evidence to put before the court on your plea hearing, the delay since that plea hearing on 6 March 2023 is in no way attributable to yourself but rather to my lack of availability.  The court acknowledges the impact of delay in having your fate hanging over your head, particularly when you already have some mental health issues.  I have taken this factor into account in sentencing you.
40	On Charge 1 on the plea indictment, recklessly causing injury, you are convicted and sentenced to be imprisoned for a period of 4 months. 
41	On Charge 3 on the trial indictment, compelling sexual penetration, you are convicted and sentenced to be imprisoned for two years.
42	On Charge 4 on the trial indictment, assault, you are convicted and sentenced to be imprisoned for a period of 22 months.
43	The base sentence is that of two years imposed on Charge 3.  I direct that two months of the sentence imposed on Charge 1, and 12 months of the sentence imposed on Charge 4, be served cumulatively upon the base sentence and upon each other.
44	The total effective sentence is thus three years and two months’ imprisonment.
45	I direct that you serve a period of two years and two months imprisonment before becoming eligible for parole.
46	I declare a period of pre-sentence detention of 239 days to be time reckoned as already served under the sentences imposed this day.
47	Pursuant to s6AAA of the Sentencing Act, I state that in relation to Charge 1 on the plea indictment, had it not been for your plea of guilty, the total effective sentence imposed on that charge would have been 7 months’ imprisonment.