IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
Case No. CR-22-01381

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
ERIC HUYNH		

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JUDGE:	HER HONOUR JUDGE DALZIEL	
WHERE HELD:	Melbourne	
DATE OF HEARING:	26 October 2023	
DATE OF SENTENCE:	24 November 2023	
CASE MAY BE CITED AS:	DPP v Huynh	
MEDIUM NEUTRAL CITATION:	[2023] VCC 2180		

REASONS FOR SENTENCE
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Subject:	Criminal Law
Catchwords: 	Guilty Plea – Sexual Penetration of a Child Under 16 – rolled up charge comprising of 3 acts – accused 20 years old and victim 15 at the time of offending – delay – submission that sentence no greater than would have been imposed then, should be imposed now – Application of s5(2)(b) of the Sentencing Act 1991 and Stalio 
Legislation Cited:	Sentencing Act 1991
Cases Cited:	Stalio v The Queen (2012) 46 VR 426; Rose v The Queen [2022] VSCA 112; Adkins v The King [2023] VSCA 23; DPP v Nash [2011] VCC 2013; DPP v Calladine [2020] VCC 2014; DPP v Ooms [2023] VSCA 207
Sentence:	Total Effective Sentence: 15 months’ imprisonment with a non-parole period of 8 months.
	s6AAA: 2 years' imprisonment with a non-parole period of 14 months.

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Ms N. Deltondo	Office of Public Prosecutions	
			
For the Accused	Ms N. Kaddeche	James Dowsley & Associates	

HER HONOUR:

Summary of Offending
1	Eric Huynh, you have pleaded guilty to one charge of sexual penetration of a child under 16.  The offence occurred on 24 November 2011, when you were 20 years old and the victim was 15 years old.  You are now 32 and she is 27.
2	You met the victim some time before this offence, through a mutual acquaintance.  You began to spend time with her and her sister, as part of that friendship group.  You had a driver’s licence and would drive the victim and her friends to events where the group would meet.
3	In around May 2011 you began messaging the victim via Facebook messenger.  You invited her over to watch a movie, but she said no.  You asked her over again in September or October, and again were put off.  You asked a third time and she again said no.
4	You asked her a fourth time and this time she said yes.  On the afternoon of 24 November 2011, you picked up the victim from her home and drove to yours.  At that time, you were living in a unit in the front of your parents' property.
5	Inside the unit there was a TV near the door.  There was no couch, only a bed.  You said 'Let’s get comfortable' and set up the movie, the Smurf movie, on a laptop rather than on the TV.  
6	The two of you lay on the bed on your sides.  You were behind the victim who had the laptop in front of her.  Around 30 to 45 mins into the movie, you began tickling the victim on her sides and body.  She tried to laugh it off and asked you to stop.  You moved closer to her and then rolled to lie on top of her with your hands beside her ribs.  She could not move.
7	You tried to put your hand down her pants and she said no.  You said 'Come on' and tried to put your hand down her pants again.  You removed your pants and her leggings and underwear.
8	You lay on top of the victim and tried to put your penis into her vagina but were unable to do so.  You tried to push your penis into her causing her a lot of pain and were able to put your penis slightly into her vagina.  This is the first penetration rolled into the charge.  The victim said no, but you did not seem to hear her.  You stopped pushing your penis into her as you could not penetrate her further.
9	You then put your fingers into her vagina.  That is the second penetration rolled into the charge.  She was crying silently.  You again positioned yourself on top of her and put your penis in her vagina.  That is the third penetration rolled into the charge.
10	You tried to kiss the victim but she pulled away.  She was crying and shaking her head saying 'uh uh' in an effort to get you to desist.  When you finished penetrating her you said something about it being good.  The victim was unable to speak to you and quickly dressed.  You also put your pants back on.
11	You were then messaging someone on your phone before you told her that Michael was coming over and you were all going to get something to eat.  Michael arrived and drove the three of you to a café.  Whilst in the car the victim stayed quiet.  You and she messaged.  My reading of those messages is that you had no appreciation that the victim was unhappy with what had occurred.  Her responses were cast in rather joking terms.  When she was cross-examined at the committal she explained that this was because she was scared and did not know how to respond.
12	The victim complained shortly afterwards to her sister but did not take any further action.
13	Screenshots of messages between you and the victim afterwards, indicate that you still wanted to spend time with her but she kept putting you off.  In one message you said 'My life's a mess and I took advantage of you … I'm sorry for everything'.  You continued to message her and she continued to put you off.   
14	In June 2020 the victim sent you a message which read, 'Hey, I just want to tell you that what happened to me what I was 15 was very traumatic.  I no longer want to carry on living my live with this burden and for me to move on I need you to acknowledge this'.  After an exchange of messages you said you did not know what she was talking about.
Victim Impact
15	The victim has provided a statement in which she describes the profound impact of your offending on her.  She has felt shame, anger, fear and anxiety.  The emotional distress caused impacts on her daily life.  She believes that the ongoing emotional and mental impact has had a negative impact on her capacity for work and study.  Her relationships with others has suffered.  She has engaged in counselling and has had to bear the financial burden of doing so.
Offence Gravity
16	I will deal now with the gravity of the offending.
17	The maximum penalty which applies to this charge is 10 years’ imprisonment.
18	From the description given in the prosecution summary it is clear that the victim was not consenting.  The charge is not rape however, but sexual penetration of a child under 16.  I understand this to be on the basis that the prosecution accept that they could not prove beyond reasonable doubt that you knew that the complainant was not consenting or that you did not have a reasonable belief that she was consenting.  
19	Thus, in assessing your culpability, I do not sentence you on the basis that you were aware that the victim was not consenting or might not be consenting.  Whilst she stated she was crying, she accepted this was silent crying.  The messages you sent afterwards suggest that you did not understand that she did not want to engage in sexual activity. 
20	You were five years older than the victim.  Whilst she was some months off turning 16, the fact that she was not younger is the absence of an aggravating factor, not mitigating.
21	Even in the absence of psychological material it is well known to the court that generally speaking a 20-year-old person is less mature than someone who is older, and that there is still learning and development of judgment to take place in a person of that age.  Thus, on that general basis I accept that you were not a fully mature adult at the time, which I accept would have reduced to some extent your understanding of the gravity of your actions.  I also accept that you had some interest in the victim and wanted to pursue a relationship with her.
22	The facts of this case are far from a gross power imbalance between victim and offender, such as where the offender is a trusted adult such as a teacher, coach, or family friend.  On the other hand, this was not 'a relationship between a 15 year old girl and an 18 year old boy - where consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two'.  
23	The law prohibits sexual contact with a child regardless of that child’s attitude because it is presumed that even so-called consensual activity is pre-mature and can have significant consequences on the mental health of that child.  In this case the victim was not consenting at the time and sets out in her victim impact statement the negative effects of your offending upon her.  Thus, I do not have regard to the presumption of harm but rather to the actual impact of your offending.
24	Furthermore, the single charge to which you have pleaded guilty encompasses three acts of penetration in the course of the one event, in which you persisted in your efforts to have sex with this girl.  
25	Thus, this charge is not one which is at the lower or lowest end of the range.  Having regard to all the facts in the case, I consider the charge is in the mid-range of gravity.
Personal History
26	I will turn now to your personal circumstances.
27	At the time of the offending in November 2011, you were 20 years old, having turned 20 in February that year.  Your parents were immigrants from Vietnam.  You have two brothers and a sister.  Your sister writes that you were always close, that you listened to her and tried to give her good advice.  She says you are a reliable, trustworthy and family oriented man.
28	You began working for your present employer, a logistics and freight business, in September 2010.  You started as a casual and have been promoted over time so that you are now the Assistant Warehouse Manager at the Melbourne branch.  I have been provided with letters of support from the CEO and a director of that business who described you as having an exceptional work ethic which you continued to demonstrate even when under the stress of the charges.
29	As I have already noted, the offending, occurred when you were 20.  After the offending, in a string of messages between you and the victim commencing at 2.13 am on 26 November 2011, you invited her out and gave indications you wanted to keep seeing her.  She rebuffed you.  In that string you said that you were stressed and when she asked you why, you said 'Just a lot' and then described yourself as 'talkative and emotional now cos of you know what'.  I note an earlier message in that string refers to you 'smoking cool' which seems to be a reference to smoking methylamphetamine.  
30	You sent another message to the victim at 5.18 am on 26 November 2011 which reads, 'I feel shit.  My life’s a mess and I took advantage of you:/ I don’t know what’s going through my head:( I’m sorry for everything:( '.
31	How your life was a mess was not really expanded upon on in the plea hearing.  I was told that you had no psychiatric or psychological issues.  In your letter of apology you said: 
'I was 20 at the time and going out with friends and partying was all I knew.  Meeting you and going out partying together was what ignited this friendship and it should have just been that only, but slowly our friendship grew, and we were hanging out without the partying. Being the age of 20 I should have been more responsible of my actions and surroundings but unfortunately, I was blinded by the party life and the consumption of alcohol and illegal substances. I know this is no excuse for what happened between us, and I should have known better and understood the difference in our maturity.'
32	Returning to your personal circumstances, you also have a long-term interest and involvement in Lion Dancing.  You participate as a performer and also teach it, mentoring people who also wish to learn that traditional dance form.  At times your involvement in Lion Dancing can be very demanding.  One of your friends from Lion Dancing has known you for nearly 20 years.  He writes of your involvement in that activity.  He says he has spoken to you about the offending for which I must sentence you and describes you as upset and sorry for what you did.  He says you are a dependable and hardworking man now and focussed on your young family.
33	You have been married for around four years and have a two-year-old daughter.  I was told that your wife is not in paid employment at present.
34	Prior to you being placed into custody in October this year on this charge, you had been working full-time for the same company.  You were paying the mortgage on your parents' property, where you also live with your wife and child.  You would do overtime at work to help your financial situation.  Your father had lost his job during the pandemic.  In 2018, the property had been re-financed with you being one of the borrowers.  Your father who is now around 65, has not been able to work since he was made redundant.
35	You have no prior or subsequent criminal convictions or findings of guilt.
Character References
36	A number of references were provided in your support on the plea.  Your friends and sister speak of your positive characteristics and that they were shocked to hear of the charge against you.  They speak of the financial burden you took on when your father lost his job and of your care for your family.  You are described as trustworthy, respectful, hard-working and kind-hearted.
37	Your employer has provided references in support of you, as have two people involved in Lion Dancing.  They speak of your contribution to that activity and that you have helped others learn the skill, and that you have taken part in many performances, which during peak time is demanding.
Delay
38	One of the factors raised in mitigation on the plea has been delay.
39	The offending took place in November 2011.  The complainant made a formal statement to police in late June 2020 and you were interviewed on 1 June 2021, with charges being filed in February 2022.  A contested committal was heard on 3 August 2022, at which the victim, her sister and another complaint witness were cross-examined.
40	Your sister writes how you have been upset and distressed at times whilst waiting for the outcome of the charges against you.  You have been worried for your family and your future.  Your friend Phi says that you have been stressed and distracted and more focussed on your wife and child.  
41	I accept that there has been a fairly long period between you being interviewed and then charged.  The passage of time between charge and now is attributable mostly to the usual time frames for the process of a matter through the Magistrates’ and County Courts.  I accept that during this time you have been worried and stressed about the outcome of the prosecution.  This will have been exacerbated by the stress of being sentenced in early October, only to have to have the plea re-heard before me due to an error in the earlier plea hearing.
42	Another factor which is linked to the passage of time between the offending, interview, charge and resolution is that you have not come to the attention of the police in that time for any other offending.  This is relevant to your prospects of rehabilitation and the weight to be given to specific deterrence and protection of the community.
43	Finally, I note that if you had been sentenced at a time more proximate to the offending, the impact on the sentence of your age, if you were still a youthful offender, could have been significant.  
Sentencing for Historical Offending
44	The next topic I will address is the principles which apply when sentencing a person for offending committed quite some time ago.
45	Your counsel referred me to the statement by the Court of Appeal in Stalio [54] which reads:
'It would be wrong for a prisoner to be sentenced to a substantially higher sentence than an offender who committed like offences at or about the time of the offences in issue, simply because of the lapse of time.'
46	Sentencing practices at the time of your offending are one matter I should consider, and I should have regard to the law that applied at the time of the offending where that was more favourable to you.   Thus, for example, the maximum penalty which applies in sentencing you is 10 years’ imprisonment, whereas the cognate offence today carries a maximum of 15 years and has a standard sentence of six years.
47	Your counsel also made submissions regarding the principles associated with sentencing youthful offenders, which would have applied to you if you were sentenced closer in time to the offending.  It was submitted that (a), your youth and thus promoting your rehabilitation would have been powerful factors in sentencing you close to the time of the offending; and (b), that a sentence no greater than would have been imposed then should be imposed now, 'simply because of the lapse of time'.
48	The difficulty with that submission is that I am not sentencing a young person of 20 or 21, I am sentencing an adult whose circumstances are different to those in your life more than 10 years ago.  It is not correct that I should impose the same sentence I would have notionally imposed if I were sentencing you, say, in 2012.  I am sentencing you as you are now, not as you were then.  On the one hand, you are not now a youthful offender.  On the other hand, you can say that you have never re-offended and rely on that and the associated reduction in the force of specific deterrence and community protection.  
49	As I have already set out, I take your youth and presumed immaturity into account in assessing your culpability.  I do not accept however, that I should give less weight to general deterrence and denunciation because you were a young person at the time of the offending.
Plea of Guilty and Remorse
50	You initially faced charges of rape.  You were committed for trial on charges of rape, sexual penetration of a child under 16, assault with intent to rape and indecent act with a child under 16.  The trial indictment filed in February 2023 contained three charges of rape.  Following a sentence indication hearing in July 2023, you pleaded guilty to an amended indictment with the single rolled up charge of sexual penetration of a child under 16. 
51	Your plea of guilty has saved the victim and others the need to give evidence at trial and saved court time.  A contested committal has been run, with the victim, her sister and a complaint witness having been cross-examined.
52	The utilitarian benefits of your plea are increased to an extent by the lingering impact of the pandemic on the operations of the court.  Although that impact was waning by the middle of this year when the proceeding resolved, there is nevertheless a moderate increase in the weight in mitigation on this basis.
53	As to whether the plea reflects remorse, it was submitted that the plea does reflect some remorse.  Several of your referees write of you being remorseful and that you regret your behaviour.  Furthermore, you have provided a letter of apology to the victim, in which you expressed regret and sorrow for your actions.  This letter seems sincere and appropriate but I also note the content of the CCO assessment report, which includes the following passage:
'Mr Huynh reported that he agreed with the matters put regarding a single charge of sexual penetration of a child under 16, however was of the view that the sexual act was consensual with the victim.  When asked to reflect upon the impact of his offending on the victim, Mr Huynh disclosed that he had heard the victim's impact statement, noting that the offending had affected her for the past 10 years, however he reported that he has "heard from friends, it is otherwise so" and that she "went on a holiday" and is performing contact sports.  Mr Huynh conceded that "sleeping with someone under 16 is wrong" before advising the writer that he was unaware that the victim was under 16.'
54	Whilst your understanding of the effects of trauma on a person reflect what might be common misconceptions, your minimisation of your conduct shows lack of insight into the gravity of your offending, and its impacts.

Family Hardship
55	Your counsel initially submitted that there were exceptional circumstances in respect to family hardship if you were to be imprisoned.  You live with your wife, young daughter and parents.  You are the only person employed.  Whilst your sister works, she is not able to carry the financial burden of paying the mortgage on your family home.  I was not told anything about your brothers’ financial situation.
56	Following the plea hearing I gave your representatives the opportunity to present more material to me about the financial impact incarceration would have on you, your wife and child, and your parents.  By correspondence I was advised that you no longer pressed the submission of exceptional circumstances.  I do take into account that whilst in custody you will be concerned about the welfare of your family, including their financial situation.
Current Sentencing Practice
57	Current sentencing practice, in s5(2)(b) of the Sentencing Act 1991 refers to sentencing practice current at the time of sentence, not at the time of the offending.  In Stalio the Court referred to a number of sentencing considerations which have changed over time, making it inapt for a sentencing judge to ask herself 'what sentence would have been imposed at the time of the offending'.
58	Of course, current sentencing practices are but one of the many factors to take into account in arriving at sentence.  Furthermore, as the court in Stalio explained, sentencing practice at the time of the offending is not irrelevant.  It is a factor to consider when arriving at a sentence which is just in all the circumstances.  
59	I was referred to five cases to assist me with current sentencing practice.  Each case differed from yours in various ways, including the following:
(a)	First, Rose v The Queen [2022] VSCA 112.  This involved a four month period of offending which included numerous separate episodes of sexual activity.  Rose was sentenced as a youthful offender and there was psychological material about his maturity – he was 18 at the time of the offending, and 23 at the time of sentence.  Because of the passage of time he had actually, not notionally, lost the opportunity of a youth justice centre disposition.  On appeal he was re-sentenced to seven months’ imprisonment to be followed by a 12 month CCO; 
(b)	The next case was Adkins v The King [2023] VSCA 23:  The accused was a trusted family friend who was aware of the victim’s poor mental health.  At the time of the offending he was 21 or 22 and the victim was 15.  He was 27 at the time of sentence.  There were six incidents of sexual penetrations, with increasingly serious contextual facts.  The accused had a physical injury which would make custody more onerous.  He had commenced treatment for sexual offending behaviours.  On his appeal he was re-sentenced to two years, two months' imprisonment with a non-parole period of 12 months. 
(c)	DPP v Nash [2011] VCC 2013 was the next case.  In that case, the victim was 15 and the accused was 22.  He was 23 at time of sentence and sentenced as a youthful offender.  The circumstances of the offending were very similar to your case.  Mr Nash was sentenced to two years’ imprisonment which was wholly suspended.  He suffered from severe epilepsy which involved blacking out completely, and there was evidence that his maturity was at the level of a teenager rather than a person aged 22.  The learned sentencing judge found exceptional circumstances existed due to a combination of relevant factors. 
(d)	The next case was DPP v Calladine [2020] VCC 2014, another County Court sentence.  The victim was 14 and the accused, 18 and he was 19 at sentence.  The offending was discovered and proved by images on the accused’s phone, the victim having refused to make a statement.  The judge considered that the case fell into the exceptional category noted by the Court of Appeal in Clarkson.  Furthermore, the accused had cognitive deficits and there was evidence of the negative impact prison would have on his prospects for rehabilitation.  He was sentenced to a CCO.
(e)	Finally there was the case of the DPP v Ooms [2023] VSCA 207, which is a decision of the Court of Appeal.  The Director’s appeal against a four year community correction order was refused.  The accused was 30 and the victim was 16.  The accused was the victim’s teacher and in the context of providing support for him, a sexual relationship had developed.  The accused had lost her job, been ostracised from her community and had a significant mental health history including self-harm and suicide attempts.  Her sentence was mitigated in respect to her moral culpability and the risk of imprisonment on her mental health. 
60	Past sentences are not precedents which must be followed, nor do they set upper or lower limits on the sentence to be imposed in any individual case.  A striking difference between you and the offenders in Calladine, Rose and Nash, is that they were each still a youthful offender at the time of sentence.  Ooms involves significantly different facts, was a different offence and the Court on the Appeal stated that the sentence in that case was lenient and merciful.
CCO assessment
61	It was submitted by your counsel that a community correction order would be adequate to meet the various sentencing purposes.  The prosecution submitted that a sentence of imprisonment with a non‑parole period was called for in all the circumstances.
62	I note that another judge of this court gave an indication pursuant to s207 of the Criminal Procedure Act, on 17 July 2023, that if you were to plead guilty to the charge before the court, a sentence of not more than two years’ imprisonment would be imposed.  I am bound by that sentencing indication.
63	As I had not at the time of the plea formed any solid view as to the eventual disposition, I had you assessed for a community correction order.  I note that the author of the report suggested that you be assessed to determine whether some program as the sex offenders program was called for.  You were assessed as having a low risk of general offending and it was suggested that supervision and community work would be appropriate.
Other sentencing principles
64	The law criminalises sexual contact with children to protect them from sexual activity which they are too young to experience.  The authorities make it clear that general deterrence is an important sentencing factor, as are denunciation and just punishment.  Whilst in your case I do not consider that specific deterrence carries any weight and there is no need to protect the community from you, the absence of those factors do not reduce the weight to be given to the other principles and sentencing purposes.
65	In your case I do not consider that a sentence other than actual imprisonment would be adequate to give proper reflection to the need for general deterrence, just punishment and denunciation.  Whilst there are a number of mitigatory factors to take into account, they do not lead to the inescapable conclusion that a non‑custodial disposition is open.  
Sentence
66	The sentence is as follows.  On Charge 1 you are sentenced to 15 months’ imprisonment with a non‑parole period of 8 months.
67	Pursuant to s6AAA I state that if you had not pleaded guilty I would have sentenced you to 2 years' imprisonment with a non‑parole period of 14 months.
68	I declare that you have already served 42 days as pre-sentence detention and I direct that that declaration be entered into the records of the court.
69	In note that having been convicted of one Class 1 offence, you are subject to the Sex Offenders Registration Act reporting conditions for 15 years.  The paperwork and information about your obligations under that Act will be provided to you.
70	Thanks, Carmel.  Ms Deltondo, are there any other orders I should have made?
71	MS DELTONDO:  No, Your Honour.
72	HER HONOUR:  All right, thank you, this matter is concluded.  We'll leave the link open if you need to speak to your client briefly, Ms Kaddeche.
73	MS KADDECHE:  Very briefly, thank you, Your Honour.
74	HER HONOUR:  Thank you.
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