An HIV positive Thai male chef has avoided jail for sexual assault after a Victorian judge decided imprisonment would be “more onerous” because the sex offender now claims to be “transgender”.
Thawat Prommachan, 32, was found guilty by a jury in December last year of two counts of sexual assault, but not guilty of two counts of rape, over a February 2024 attack on a man he met on homosexual hook-up app Grindr.
Prommachan, who came to Australia as a 22-year-old and obtained a permanent resident visa after studying to become a chef, assaulted his crying victim during a massage that was supposed to be therapeutic and non-sexual, and carried on despite being told “no” at least five times.
The assaults are too graphic to describe, and caused his victim to develop post-traumatic stress, affected his sexual functioning, made him feel physically unsafe, caused him to become physically incapacitated, and resulted in the loss of weeks of income, he said in an impact statement.
After the attack Prommachan admitted the victim did not consent, telling police: “I know when people say ‘no’ the first time, I shouldn’t keep going for that um but it’s hard when you in the position like that… when you already get on the mood.”
Prommachan’s charges carried a maximum penalty of 10 years’ imprisonment, but County Court Judge Kate Hawkins sentenced him to a two-year Community Corrections Order with 250 hours of unpaid community work in May, according to court documents released earlier this month.
Judge Hawkins referred to Prommachan with female pronouns in court, and noted that it was only after being charged that he began openly identifying as a female, and was now taking a testosterone blocker that had reduced his previously high sex drive.
“Your offending appears to have been the catalyst for you to take the difficult steps to transition,” Judge Hawkins said, after noting that Prommachan “identified and lived as a gay man” at the time of the offending.
“You are now in a much more stable place, happy in the person you have become, since your offending.”
In deciding not to impose a custodial sentence, Judge Hawkins took into account an assessment by forensic psychiatrist Rajan Darjee, who found Prommachan posed a low risk of further sexual offending because he was a “transwoman”.
Professor Darjee told the court imprisonment would expose the sex offender to a heightened risk of harassment, violence and segregation, would negatively affect his mental health, and would reduce his prospects of rehabilitation.
“In prison [he] would either be placed in a male prison and be at risk of sexual harassment, abuse or violence, or placed in segregation, or [he] would be placed in a female prison, where [he] would likely be segregated from female prisoners, despite not posing any risk to them,” the psychiatrist said.
“As a transwoman it is highly likely [he] would be subject to prejudice, verbal abuse and bullying by other prisoners, regardless of whether [he] was in a male or female prison. In such environments [he] may decide to de-transition, or [he] may have more limited access to gender affirming treatment.
“[He] is also vulnerable due to anxiety, low mood and suicidal ideation, which will likely get much worse in prison.”
Judge Hawkins said in sentencing that she accepted that “transgender and gender diverse prisoners are particularly vulnerable to harm and abuse in prison due to the heightened risk of sexual or physical assault”.
“It is appropriate to take account of the fact that prison is more onerous for transgender prisoners in determining the appropriate sentence,” she said.
“Despite the seriousness of your offending, general deterrence, denunciation and just punishment can be achieved via an appropriate community corrections order.”
The judge also told Prommachan she was concerned that “as a transgender woman, you may be vulnerable in any group sex offender program” and said treatment ordered programs to reduce reoffending to be one-on-one.
The court also heard that Prommachan was diagnosed with HIV in 2017 and was taking antiviral medications, likely had ADHD, and had been connected to a “specialist trans-identified psychologist” by government-funded LGBT service Beyond Bricks and Bars.
The ruling comes after the decision to send a “transgender” paedophile who abused his own daughter to Victoria’s Dame Phyllis Frost Centre female prison sparked nationwide outrage last last year.
Header image: The Dame Phyllis Frost Centre women’s prison where Prommachan may have been sent (Google Street View).
