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.

Secondly, an established principle of sentencing is totality, which holds that where an offender is sentenced for multiple offences, the sentence should be appropriate to the overall pattern of offending. The idea is to avoid an unduly harsh punishment if sentences are stacked on top of one another. It does not mean that new offences cannot be punished; rather, it requires that all offences be considered together when determining the overall penalty. In this case, the magistrate apparently accepted the defence’s argument that Cao’s offence was part of the same pattern of offending for which he had already been tried and convicted in 2025, and that taking the offences together would not have changed his sentence. That is, Cao’s offence in this specific case did not make his overall pattern so much worse that he deserved a harsher punishment than he had already received.  

But this is a confusing application of the principle. Totality is not supposed to elide repeat offending altogether. In the sentencing mix ought to be the fact that Cao had offended multiple times, which would properly be seen as an aggravating factor, and made worse by the addition of this offence. By invoking totality as a reason not to make Cao’s punishment more severe, the magistrate implied that the offending in the case before her did not, by itself, amount to much. It makes sense to punish offenders for their pattern of offending, but each offence also needs to be treated seriously, in the name of both victims and society.

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Looming over all this is Cao’s visa status. Under Australian law, visas are mandatorily cancelled for anyone given a prison sentence of twelve months or more. Consistent with Victorian law, Mykytowycz noted his lack of family in Australia as one factor influencing her decision not to record a conviction. Beyond this, Victoria’s sentencing manual states that the prospect of deportation is considered relevant to how severe a sentence will be for an offender, but that artificially lowering sentences with this in mind is an “error.”  However, it was reported in 2024 that magistrates had been advised at a training day to avoid the twelve-month threshold, so that offenders might not be subject to deportation.

Cases like Cao’s therefore raise an ongoing concern: that the courts might treat visa holders more leniently than citizens. If they decide that a punishment would be too harsh because it might lead to deportation—a consequence that obviously does not arise in the case of citizens—then, in effect, they are imposing a lighter sentence than the offence really warrants because the offender is on a visa.