Getting Away With It

The case of Bao Phuc Cao reveals Melbourne’s judiciary is out of step with public understanding of criminal justice.

Despite an ongoing crimewave, Melbourne was recently named the world’s best city by Time Out magazine, to a mix of celebratory headlines, crowing by the Victorian state government, and general bemusement among everyone else. Sure enough, just two days later, the city reminded the world of its recent sad decline.

On 13 March, Vietnamese international student Bao Phuc Cao pleaded guilty to secretly filming a woman under the cubicle walls in the toilets of a shopping centre in the city’s Docklands area. His camera was found to have similarly intrusive images and videos of more than 100 women on it. Their identities are unknown. And he was already on a community correction order (a form of community-based punishment involving monitoring and other conditions) from two previous prosecutions for similar offences. The victim in this case has been left anxious and traumatised. While Cao pleaded guilty and has reportedly abided by his order, at the time of his arrest he also apparently offered the baffling excuse that he was in the women’s toilets because he was “unsure” about his gender. Despite all this, Cao was not sentenced to prison, much less deported from Australia (though his visa is reportedly being reviewed); in fact, no conviction was recorded, and Cao was released into the community with no further punishment at all, beyond an undertaking of good behaviour and continued compliance with his existing order. The seemingly bizarre leniency of the judgement raises larger questions about the administration of criminal justice in Victoria, the alignment of the judiciary with public standards and expectations and the function of criminal law.

There is a longstanding philosophical dispute about why some acts are deemed to warrant society’s strongest sanctions. One answer is that the distinguishing feature of crime is that it is an offence against both victims and the public. Civil wrongs involve only the parties to the immediate dispute, but crimes contravene the basic standards and values of society, and for this reason, the state generally takes responsibility for prosecuting criminals and imposes severe punishments like incarceration that are unavailable to the civil law. It is this public and moral aspect of the criminal law that underlies the controversy when lenient sentences defy common sense, because this suggests that the judiciary neither share nor care about the values of the public encoded in the criminal law itself.

At sentencing, Magistrate Michelle Mykytowycz made two revealing comments about how the purposes and principles of sentencing are interpreted. First, Victorian law states that sentences can only be imposed for the purposes of punishment, deterrence, rehabilitation, protection of the community, and denunciation—i.e. showing that we hold such acts to be abhorrent. On this, Mykytowycz reportedly said, “[The] court has to send a message to the community that they denounce this offending and (reinforce) the protection of women who are entitled and must feel safe in public utilities.”

But denunciation is not just a matter of words: it is communicated through the sentence itself. In a case involving repeated, highly invasive offending against unknown victims, the magistrate’s decision to merely reinforce the orders Cao was already under did little to communicate the seriousness of his offending. Moreover, while the magistrate gestured towards women’s safety, her sentence did not address public disquiet about the treatment of women’s rights by law and policy. Even if Cao were genuinely experiencing gender dysphoria, and even if it were acceptable for biological men to use women’s toilets, this would not change the nature or extent of his offending. The other purposes of sentencing, like rehabilitation, are legitimate, but reducing the importance of denunciation undermines the court’s public credibility.