A male-to-female trans person has been spared jail time after being found guilty of two charges of sexual assault, with a judge declaring they would be at risk of sexual harassment, abuse or violence in prison due to their gender identity.
Chef Thawat Prommachan, 32, is a permanent resident in Australia, having come from Thailand as a 22-year-old.
At the time, Prommachan, who has HIV, identified as a gay man, who was “repressed and only partially and secretly expressing” his female identity, according to court documents.
Prommachan identified fully as a trans woman only after being charged with the offending.
On July 10, the County Court of Victoria heard that Prommachan had met her victim on a gay dating app and offered the then 30-year-old man a massage, which he declined.
But over following weeks, Prommachan offered to practice her massage techniques on the victim, who eventually agreed to a non-sexual massage at the man’s South Yarra home after a stressful day on Feb. 25, 2024.
It was heard Prommachan started out massaging the man’s body but then proceeded to engage in sexual acts, despite the victim saying “no” multiple times while attempting to get away.
The victim also froze multiple times during the attack, according to the court.
After leaving the man’s apartment, Prommachan blocked the victim on the app they’d used to meet, in an attempt to prevent being identified.
When police caught up with Prommachan, she admitted the victim had told her “no.”
“Your moral culpability for this offending is relatively high,” Judge Kate Hawkins noted.
Prommachan was found guilty of two charges of sexual assault by a jury, who also acquitted her of two counts of rape.
The court heard she had no criminal history and several character references were tended in support of Prommachan. It was further heard that Prommachan’s use of testosterone blockers had significantly reduced her sex drive since the offending.
Judge Hawkins told the court that transgender and gender diverse prisoners were especially vulnerable to harm and abuse in jail due to a higher risk of sexual 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.
It was heard that a forensic psychiatrist had determined placing Prommachan in a male prison would put her at risk of sexual harassment, abuse of violence, or cause her to be placed in segregation, which would also be a requirement should she attend a female prison.
Additionally, the court heard Prommachan was at risk due to anxiety, low mood and suicidal ideation.
Consequently, Prommachan was sentenced to 250 hours’ community service.
The maximum penalty for sexual assault is 10 years’ imprisonment.
