Director of Public Prosecutions v Chen
[2025] VCC 282
•21 February 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 24-01477
CR 24-01642
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KAIJIE CHEN & MIN HUANG |
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JUDGE: | HER HONOUR JUDGE MARICH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 December 2024, 30 January 2025 |
DATE OF SENTENCE: | 21 February 2025 |
CASE MAY BE CITED AS: | DPP v Chen & Anor |
MEDIUM NEUTRAL CITATION: | [2025] VCC 282 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Charges: robbery, attempt to pervert the course of justice - agreement to exchange currency - meeting at a hotel – element of preplanning and premeditation – use of fake identity - victim lured to the scene of offending - knife produced and applied to victim’s chest – no exchange - $40,000 AUD taken from the victim – serious example of the offence of robbery – victim subjected to a traumatic event - intercepted and recorded phone calls while custody – plans to contact the victim – victim received an exhortation not to appear in court in exchange money – inherently serious offending that strikes at the heart of the justice system - need for general deterrence is high – denunciation – just punishment – parity
Legislation Cited: Sentencing Act 1991 (Vic), Crimes Act 1958 (Vic)
Cases Cited: DPP v Chen & Lin [2024] VCC 312
Sentence:Ms Huang: total effective sentence of 2 years and 6 months imprisonment with two year non-parole period. 6AAA: Were it not for your pleas, I would have imposed a sentence of three years' and five months' imprisonment.
Mr Chen: total effective sentence of 2 years' imprisonment, 12 months of the sentence passed on this indictment to be served cumulatively upon the four years and three months imposed in the earlier sentence. Total effective sentence, across both indictments, of five years and three months with a non-parole period across both matters of three years and six months. 6AAA Were it not for the plea of guilty, a longer sentence would have been imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Robinson | Office of Public Prosecutions |
For Accused Chen | Mr L. Dean | Paul Vale Criminal Law |
For Accused Huang | Ms M. Carroll | Hofman Carroll Criminal Law |
HER HONOUR:
Introduction
1Min Huang, you have pleaded guilty to an indictment containing one charge of robbery which carries a maximum penalty of 15 years' imprisonment. Min Huang and Kaijie Chen, on the same indictment, you have each pleaded guilty to one charge of attempting to pervert the course of justice at common law, which carries a maximum penalty of 25 years' imprisonment. The circumstances in which you each came to commit those offences are set out in the summary of prosecution opening for plea, dated 1 November 2024, Exhibit A. The prosecution has also relied on an outline of sentencing submissions dated 18 December 2024, Exhibit B.
2Ms Huang, in addition to the matters developed in oral argument, your counsel relied on an outline of submissions for plea dated 17 December 2024, Exhibit 1, and a certificate of completion of the Multicultural Centre for Women's Health DOCS Health Education Program dated 21 November 2024, Exhibit 2. Kaijie Chen, in addition to the matters developed in oral argument, your counsel relied on an outline of plea submissions on behalf of the accused, dated 13 December 2024, Exhibit 3.
3I have exhibited reasons for sentence in the sentence I passed on DPP v Chen & Lin [2024] VCC 312, Exhibit 4. And your counsel has also relied on further plea submissions on behalf of the accused, dated 28 January 2025, Exhibit 5. I have had careful regard to all exhibited documents as well as to the matters addressed in the oral plea in mitigation of penalty, and have read all cases referred to.
Circumstances of your offending
4Charge 1, robbery, Ms Huang. Mr Chen, I have previously sentenced you in relation to your involvement in an armed robbery occurring on 24 February 2023, involving a victim, Qiyan Feng. See Exhibit 4. Each of your co-accused at the hearing, Mr Chen Lin, pleaded guilty to a charge of robbery for his involvement in the offending.
5Ms Huang, you have pleaded guilty before me in this hearing to your involvement in the robbery. Early in the hours of the morning of 24 February 2023, your victim, Ms Feng, used the social media application WeChat to discuss exchanging Australian dollars into Chinese yuan with a person using the username Lulu. Ms Feng and Lulu continued discussing arrangements, and an agreement was made that Ms Feng would exchange AUD $30,000 cash for yuan to be provided by Lulu, and the two of them agreed to meet.
6At 5.42 pm, Ms Feng asked Lulu to provide the address of the intended meeting place. Each of your co‑offender, Mr Lin, then used Booking.com to reserve accommodation for that evening at the City Edge Hotel in Box Hill, and at 5.58 pm, the City Edge received the confirmation email for that booking via that website. At about 6.05 pm, your co-offender, Mr Lin, checked into the City Edge Hotel, providing electronic identification which bore his name, date of birth, and home address. He was allocated room 101 at the hotel.
7At 6.10 pm, Lulu sent the victim the address of the City Edge Hotel through WeChat. At about 6.12 pm, Mr Lin drove into the underground car park at the hotel, with you, Ms Huang, and you, Mr Chen, as passengers. As will become relevant in my pending discussion of the parity principle of sentencing, given that Mr Lin has also pleaded guilty to the charge of robbery, I interpolate that the prosecution case against Mr Lin asserted that he first became aware of the arrangement to rob Ms Feng at 6.12 pm upon his arrival at the hotel.
8It is the prosecution case against you, Ms Huang, that you had used the Lulu identity to attract your victim to the hotel. Given the proximity between the Lulu messages around 6 o'clock pm, and your arrival at the hotel, I am satisfied that you were using the identity at that time, as is the prosecution case, not seriously contested by the defence. And whilst I have found that there was an element of planning and premeditation in your commission of the robbery, Ms Huang, I make no finding whether you were using the Lulu identity at the time of first contact with the victim.
9Ms Huang, further, you were aware of the arrangement to rob Ms Fieng but like Mr Lin, you, Ms Huang, were not aware that an armed robbery was about to take place involving the use of the weapon by you, Mr Chen. Here, I interpolate further, Mr Chen, that on 13 March 2024, I sentenced you to four years' and three months' imprisonment, with a minimum period of three years to serve with 383 days pre-sentence detention on your plea to this armed robbery.
10Mr Lin, you, Mr Chen, and you, Ms Huang, moved between the car and hotel room until about 6.30 pm when your victim arrived. CCTV showed that, at this point, Mr Lin returned to the car park, and you, Mr Chen, remained in the hotel room. At about 6.30 pm, the victim arrived and met you, Ms Huang, purporting to be Lulu, in the reception area of the hotel. A conversation ensued between the two of you, and you both went to room 101 on level 1 via the lift.
11You both entered the room, and a further conversation ensued about exchanging the money. And you, Ms Huang, asked the victim if she could exchange AU$40,000 at this point. Your victim agreed, but she had not brought the cash with her, and she said that she would leave and return with the cash. The victim left alone and went to her car, which was parked at Harrow Street in Box Hill. She retrieved the cash, and then she drove back to the City Edge Hotel and parked.
12While the victim was downstairs retrieving the cash, you, Ms Huang, went downstairs to the underground car park and met Mr Lin by the elevator door where he had been waiting. Ms Huang, you and Mr Lin took the elevator to level 1 and both of you entered room 101. Approximately 1 minute later, Mr Lin left the hotel room and returned to the underground car park, whilst you, Ms Huang, and you, Mr Chen, remained inside the hotel room. At about 6.55 pm, the victim brought AUD $40,000 in cash back to the hotel and met you, Ms Huang, in the lobby, and the two of you went back to room 101.
13Inside the room you, Ms Huang, and your victim sat at a small table and discussed money, and the victim provided her bank details to you, Ms Huang, to transfer the Chinese currency to her. You, Ms Huang, asked to check the cash and began counting it. Once the cash was counted, you, Mr Chen, approached the victim from behind, and you placed your arm over her left shoulder and around her neck, and applied a large knife to the victim's chest, where it touched her. The prosecution has alleged that you, Ms Huang, were acting in concert with you, Mr Chen, to the extent that the two of you stole from Ms Feng, by way of force or the threat of force, $40,000 cash.
14Ms Huang, I sentence you on the basis that your charge is one of robbery, as the prosecution does not allege that you knew that you, Mr Chen, would produce a knife, or that you, Ms Huang, saw it at the time. This is the offending referable to your Charge 1 of robbery. The victim said words to the effect, 'I want my life, take money, and let me go.' Ms Huang, you left the room, and you, Mr Chen, then removed the knife and followed her some 20 seconds later. As a result of your offending the $40,000 was taken from the victim.
15Whilst she has declined to provide a victim impact statement, I can infer that this was a frightening and traumatic ordeal for her which would have lasting effects upon her sense of safety. CCTV taken from the City Edge Hotel at about 7.08 pm shows you, Ms Huang, and you, Mr Chen, by now wearing a mask, leaving the hotel room.
16You, Ms Huang, placed a bag inside your jacket and the two of you entered the lift and travelled to the underground car park where Mr Lin was waiting, and the two of you entered the vehicle, and the three of you drove away. The victim left room 101 and attended the reception area of the hotel, where she alerted the hotel manager as to what had occurred, and then she called police.
Initial arrests and investigation
17At about 8.21 pm on the day of your offending, police arrived at the City Edge Hotel and took statements from the victim and the hotel manager. Police also photographed room 101 and seized a number of items including tissues, face masks, a room key card, and a keycard holder. At approximately 1.02 pm on Sunday, 26 February 2023, police attended and entered one of the rooms that Mr Lin had, by then, reserved at the Quincy Hotel in Melbourne, and CCTV footage from the Quincy Hotel depicted the two of you and Mr Lin checking in.
18Mr Lin, and you, Mr Chen were arrested, and Mr Lin was found with a key to the car used at the scene of the robbery in his pocket. Other items were seized. You Ms Huang were not located at the Quincy Hotel and the identity of the offender purporting to be Lulu was not, at the time, known to police. The police subsequently seized and analysed mobile phones, CCTV from the City Edge and Quincy Hotels, and DNA analysis was taken.
19You, Mr Chen, were arrested upon police attendance at the Quincy Hotel on 26 February 2023, and you were charged and remanded into custody. After you were remanded into custody, you, Mr Chen, made a series of phone calls to you, Ms Huang, which were recorded by the prison phone system in the usual way. On 14 May 2023, you, Ms Huang, were charged for your involvement in a different offence said to have occurred in New South Wales, and were remanded into custody with a sample of DNA taken.
20At this time, you had still not been identified as Lulu. Images of Lulu taken from the City Edge Hotel were provided to New South Wales police from the hotel's CCTV footage, and a New South Wales police officer recognised the person on the images as being you, Ms Huang. From the DNA extracted from a tissue and face mask located in room 101 of the City Edge Hotel, you, Ms Huang, were identified as a likely contributor.
Circumstances of offending
21Charge 2, attempt to pervert the course of justice, Ms Huang, and Mr Chen. Mr Chen, your armed robbery matter proceeded in the committal stream at the Magistrates' Court in Melbourne with Mr Lin as your co‑accused. On 28 June 2023, you, Mr Chen, and Mr Lin were granted leave to cross‑examine Ms Feng at committal hearing, which was then listed for 7 August 2023.
22On 18 July 2023, the police informant in respect of those charges was contacted by New South Wales police, who conveyed information to the effect that while New South Wales police monitored your mobile phone, Ms Huang, they had become aware of what was said to be a plot between the two of you to dissuade the victim of the robbery, Ms Feng, from giving evidence at the committal hearing arising from the intercepted conversations between you both, whilst Mr Chen was on remand, awaiting the committal proceedings.
23The Victoria Police informant subsequently obtained 19 telephone conversations between you, which have been recorded. Ten of those conversations were deemed irrelevant. Nine intercepted conversations between 14 July and 6 August 2023, each of which occurred largely in the Mandarin language, are relevant to each of your Charge 2, attempt to pervert the course of justice, which I note is confined to a single day of offending, i.e. 6 August 2023. And I have included the conduct prior to this date to detail the lead-up to the actual offending.
24The calls have since been translated into English. Over the course of the conversations, the two of you discussed a plan to contact Ms Feng by WeChat and by phone. At about 2.55 pm on 14 July 2023, you, Mr Chen, called you, Ms Huang, from custody.
25(a), in a conversation lasting for about 5 minutes, the two of you discussed that only Ms Feng had seen the armed robbery on 24 February 2023, and that the police charge relied on her evidence. You, Mr Chen, asked you, Ms Huang, whether you could contact Ms Feng, and you, Ms Huang, replied that you had a second WeChat ID for her.
26(b), at about 12.47 pm on 16 July 2023, you, Mr Chen, called you, Ms Huang, from custody. In a conversation lasting for about 4 minutes, you, Mr Chen, asked you, Ms Huang, to make an appointment with Ms Feng on 7 August 2023 so that she would not be able to give evidence at the committal hearing. You both discussed that the court hearing would commence at 10 am, and the appointment with Ms Feng should be at about 12 pm.
27About two and a half minutes into the conversation, you, Mr Chen, said, 'You can get anyone to do it. Use another WeChat ID to contact her. Just say you want to exchange money or do whatever, and ask her to come out. That person doesn't have to go.' You, Ms Huang, responded, 'I will think of a way.'
28(c), later that afternoon at about 3.10 pm, you, Mr Chen, called you, Ms Huang, from custody, and you both had a further conversation for about 8 minutes. During the conversation, you, Mr Chen, told you, Ms Huang, 'You need to find a way to get that woman to come out on 7 August. Create a fake WeChat ID to contact her. See if you can use an excuse like currency exchange to ask her out. Or just call her directly... tell her how much you are ready to offer her, or ask her not to appear in court.'
29(d), at about 1.49 pm on 21 July 2023, you, Ms Chen, called you, Ms Huang, from custody, and you two discussed preventing Ms Feng from giving evidence at the committal hearing. You, Mr Chen, said if Ms Feng did not appear at the committal hearing, your chances of getting bail would be great because there would be no evidence. You, Ms Huang, said that you would ask Ms Feng to meet with you on the day of the hearing to give her money.
30(e), later that afternoon at about 5.13 pm, you both conversed for about 10 more minutes. You, Ms Huang, told you, Mr Chen, that you had asked someone to contact Ms Feng. Ms Huang, you said that you would arrange a meeting with Ms Feng at the time of the committal hearing far away from the city. The two of you then discussed offering Ms Feng money at the meeting. You, Ms Huang, said, 'I will get a man. My supply. He is a good talker. Just say he is your relative.'
31(f), at about 6.28 pm on 25 July 2025, you, Mr Chen, called you, Ms Huang, from custody, and you both discussed your plan to stop Ms Feng from giving evidence at the committal hearing. You, Ms Huang, told you, Mr Chen, that you would arrange to meet with Ms Feng at a remote location somewhere far away from the city. You, Mr Chen, told you, Ms Huang, to promise Ms Feng money at the meeting.
32You said, 'Tell her to meet you outside to discuss giving her half the money first... don't tell her that you will give her the money on that day. Lie to her first, and say that you will give her the money in a few days.' You, Mr Chen, told you, Ms Huang, that it would be easy for you to get bail if Ms Feng did not appear at the committal hearing, and the two of you discussed that you would make money together upon your release, Mr Chen.
33(g), at about 4.56 pm on 29 July 2023, you, Mr Chen, called you, Ms Huang, from custody. The conversation lasted for about 5 and a half minutes. During the conversation, you, Mr Chen, told you, Ms Huang, that you had filed a visa application, and the success of the application would be mainly up to the court hearing on 17 August 2023. You both discussed when you, Mr Chen, might be released from custody, and you, Mr Chen, said if there was no problem at the committal hearing, you would likely be released.
34(h), at about 3.12 pm on 31 July 2023, you both conversed for about 3 and a half minutes, again discussing your plan to dissuade Ms Feng from giving evidence. You, Ms Huang, said that you would get your supplier to call Ms Feng directly, and you, Mr Chen, said, 'Ask you to call from a Chinese number. Call her directly on her mobile. Tell your supplier to pretend to be my family member and talk to her.' You, Ms Huang, said that you had already told him to say that. The two of you then discussed when the call should be made. You, Mr Chen, said to wait until about two days before the hearing, and you, Ms Huang, asked you, Mr Chen, to remind you.
35(i), at about 2.07 pm on 4 August 2023, you, Mr Chen, called you, Ms Huang, from custody. The conversation lasted for about three and a half minutes. During the conversation, you, Mr Chen, told you, Ms Huang, that you should contact Ms Feng and make an appointment with her on 7 August 2023. About 1 minute into the conversation, you, Mr Chen, said, 'Just ask your supplier to call her from a Chinese phone number. Tell her that he is my family member, is sick or whatever, wants to sell to her. Ask her if she could drop the charge, and I will repay her when I get out.'
36You, Ms Huang, responded, 'Can I ask to see her on that day to pay some money back, then you will repay the rest when you get out? This may be better. If she does not see the money, she may not trust us.' You, Mr Chen, replied, 'You decide. You may discuss with your supplier about what to do.' Later in the conversation, you, Mr Chen, said, 'Just ask her directly not to appear in court. Just say it to her frankly.' And you, Ms Huang, confirmed that you would.
37On Saturday, 5 August 2023, Ms Feng received a friend request via WeChat from an account in the name of Bole, B-o-l-e. At 9.16 am that morning, the person purporting to be Bole wrote to Ms Feng, saying, 'I will arrive in Melbourne tonight. Is it okay to give you 20,000 first? Sister, can you talk? I can give you 20,000 first, sister.' Ms Feng did not respond to the messages.
38At 10.47 pm that night, the person purporting to be Bole sent further messages to Ms Feng, saying, 'Can we have a chat? I will arrive in Melbourne tonight. Is it okay to give you 20,000 first, sister?' Again, Ms Feng did not reply. It is the Crown case that the person purporting to be Bole was, in fact, you, Ms Huang. Ms Feng took a screenshot of the messages, and would later provide the screenshot to police.
39I note that each of your Charge 2 of attempting to pervert the course of justice is confined to a single date. That is, 6 August 2023, and I have included the preceding details by way of background to the charged offending. At about 2.42 pm the next day, on 6 August 2023, the date of your offending, you, Mr Chen, called you, Ms Huang, from custody, and you both had a conversation for about 2 minutes.
40During the conversation you, Ms Huang, told you, Mr Chen, that you had sent Ms Feng a contact request via WeChat, but that Ms Feng had not accepted the request. You, Mr Chen, told you, Ms Huang, to call her directly. You, Ms Huang, said, 'I'll get my supplier to call. I'll tell him what to say and he will do it.' You, Mr Chen, replied, 'Okay. You just say someone from my family wants to contact her.' Later that night, at 9.18 pm, Ms Feng received an audio call via WeChat from the account in the name of Lulu that had been used to communicate with her in the lead‑up to the armed robbery, robbery in your case Ms Huang, on 24 February 2023.
41The profile picture on the account had changed, and Ms Feng observed that it depicted someone else. She answered the call, and an unknown male responded, although she did not recognise his voice. Here, I interpolate that the prosecution alleges this man to be a third party who has not been charged in connection with this offending. The call went for about 28 seconds. Ms Feng told the male that she was at work, and said that he could call her back after 10.30 pm. At about 11.20 pm, Ms Feng received a WeChat message from the same account asking her if she was ready. She sent a message back saying, 'What are you going to do to me?'
42At about 11.39 pm that night, Ms Feng received a second audio call from the same male, again via the WeChat account in the name of Lulu. She answered the call and used a second mobile phone to record her conversation with the male. The conversation lasted for 7 minutes and 22 seconds. At the commencement of the call, the unknown male told Ms Feng that he would like to discuss a matter involving you, Mr Chen. Ms Feng replied, 'There is a court hearing tomorrow. Let us talk about it in court.'
43The unknown male said, 'Sister, don't be like that. How about this? I am his relative. I am his cousin. How about this? I can go to Melbourne now. I can give you $40,000 first. Then when he... I can also compensate you. Can you not sue him?' Ms Feng asked the male whether he had engaged a lawyer, and the male responded, 'Engage or not, I am thinking can we settle it in private? What he has done over the years is quite disappointing. That is why I would like to talk to you in private, and if possible, to settle it in private. We are quite embarrassed and feel sorry to you, sister.'
44Ms Feng said, 'I do not think this matter can be settled in private. It is not that I do not want to settle it. It is not permitted by law.' The unknown male replied, 'He was deceived by that woman... we are so sorry, sister... whatever amount is required, so be it. He is the only child of the family. Going through the legal avenue will destroy him. We are so sorry to you. I have been trying to contact you but couldn't get in touch. Whatever amount is required, so be it. If you would like to be compensated in private, please tell me. Is that okay? If we pay you one cent less, you can do whatever you want to do. Is that okay, sister? I can give you the money tomorrow.'
45Ms Feng asked the unknown male what he wanted from her in exchange for the money, and he replied, 'Can we not go to court? He is the only one in the family. Doing so will destroy him... whatever amount needs to be paid to you, so be it. Whatever compensation that needs to be made in private, so be it.' Ms Feng suggested to the male that, even if she declined to give evidence, the matter would not be over. The male replied, 'If you don't appear in court, we will pay you whatever amount that is required. Is that okay? We will give you whatever compensation is required.'
46Ms Feng told the male that she was not in control of the charges against you, Mr Chen, and he said, 'But the lawyer we engaged for him said it would be okay as long as you would not appear in court. We will then pay you whatever compensation is required. You still have control over it, sister. The lawyer has said that it would be okay as long as you would not appear in court. Please, sister... he is the only child of the family. My aunt has been crying all the time because of what happened... I will teach him a good lesson after this. Is that okay, sister? I will give you the money... he was just a fool... he followed everything that the woman said.'
47Ms Feng pointed out that the unknown male was using the WeChat account that you, Ms Huang, had originally contacted her on. He told Ms Feng that you, Ms Huang, were in hiding, and then said, 'She gave me this WeChat ID... she asked me to make contact with you myself... regarding this matter [You, Mr Chen], cannot be held solely responsible. This woman had a lot to do with it. Our family would like to compensate you properly in private, and hope that you will not appear in court, and let him go this time. Is that okay, sister? If he is imprisoned, this family will be destroyed... I can give you the money tomorrow.'
48Ms Feng responded, 'Let us leave it for now,' and terminated the audio soon thereafter. At the conclusion of the call, the unknown male sent Ms Feng a further WeChat message telling her to think about what he had said, and that if she was agreeable to it, they could still proceed with the proposed offer. It is the Crown case that the unknown male contacted Ms Feng at the behest of you, Ms Huang, based on the plan that you both had made between 14 July and 6 August 2023, but I sentence you on the basis that the offending is confined to a single day.
49Each of your actions on 6 August 2023 - that is, the call that you, Mr Chen, made to you, Ms Huang, from custody, leading to the conversation that took place, culminating in Ms Feng receiving an audio call via WeChat from the Lulu account that you had organised, Ms Huang, from an unknown male where Ms Feng was urged not to give evidence, amounts to the offending referable to each of your Charge 2 of attempting to pervert the course of justice.
50On 7 August 2023, being the next day, Ms Feng attended the Melbourne Magistrates' Court and was called to give evidence at the committal hearing for the armed robbery charges. She was subsequently cross-examined. You, Mr Chen, and each of your co-accused, Mr Lin, were committed to stand trial and initial directions hearings were listed at the Melbourne County Court.
Further investigation
51On 9 August 2023, Ms Feng made a further statement to police and provided police with copies of the WeChat messages that she had received, and the recording of her phone conversation with the unknown male. The messages and the recording were subsequently translated into English. On 17 August 2023, New South Wales police executed a search warrant at an address where you, Ms Huang, were known to reside in Campsie, New South Wales. You, Ms Huang, were present at the time.
52You were arrested in relation to an unrelated matter, and were remanded into custody. A mobile phone was located at the address, and it was later confirmed by police to utilise a number ending in 793, which was the same mobile number that you, Mr Chen, had used to contact you, Ms Huang, from custody. On 3 June 2024, charges against you, Ms Huang, were filed in the Magistrates' Court, and a warrant for your arrest was issued. At the time, your whereabouts were not known.
53On 6 June 2024, you, Ms Huang, were located at a residential address in Oakleigh East, Victoria, in the course of an unrelated investigation, and the warrant for your arrest in this matter was executed, and you were remanded into police custody. Each of you has declined to be interviewed in relation to the offending, as is your right.
Plea of guilty, pleas of guilty and timing
54Ms Huang, as I have noted, you were charged with this offending on 6 June 2024, and were remanded into custody. Your matter was listed for committal hearing in the Magistrates' Court on 19 September 2024, and at the conclusion of the committal hearing, you indicated your intention to plead guilty to the proceeding charges. The matter was then listed for a plea in mitigation of penalty in this court.
55Mr Chen, on 6 June 2024, you were charged with attempting to pervert the course of justice, and this charge was consolidated with Ms Huang's committal proceeding. I interpolate that this was a number of months after you had moved from status as a remand prisoner to a sentenced prisoner. At the conclusion of the committal hearing, you indicated your intention to plead guilty to this charge.
56In respect of each of you, I accept and take into account your pleas of guilty and their timing on the day of the committal hearing, which is a relatively early stage of the proceedings. By each of your pleas of guilty, you avoided the necessity for witnesses, including the victim, to experience the stress and inconvenience of needing to give evidence before a jury, and further, you saved the court and the community the time and expense of a trial. I take into account in significant mitigation of sentence each of your pleas of guilty and their timing, and the utilitarian benefit of those pleas.
Personal circumstances
57Mr Chen, you were 26 years of age at the time of your offending, and are now 28. You are the middle child of three born to your parents, and were raised in the Fujian province in the south of China. You completed the equivalent of Year 12 in Fujian, and arrived in Australia at the age of approximately 23 in 2019 to study at the University of New South Wales on a student visa.
58Your English was poor, but part of your business and commerce course was taught in Mandarin, and part in English. You lived in shared student accommodation and had some relatives in Sydney. In your second year of study, you were affected by the pandemic, and I understand that you became reluctant to attend classes. Teaching transitioned to online, and you did not attend many online classes before you ceased to attend university altogether.
59By virtue of your family's strong connections to the construction industry, you obtained work labouring in construction in a business run by your aunt in Sydney, and you worked primarily on renovations. In October 2022, you appeared at the Bankstown Local Court in New South Wales on two charges of drive motor vehicle while license suspended, and you were fined on each and disqualified from driving. An appearance at Bankstown Local Court in December 2022 followed, resulting in your conviction for a second or subsequent offence of driving a motor vehicle during a disqualification period, and you were fined.
60In February 2023, at the Downing Centre Local Court, you were fined on charges of possess prohibited drug and having custody of a knife in a public place. You were not of good character at the time of this criminal act, and I have earlier found that your armed robbery represented a serious escalation from earlier offending. The offence before me today occurred prior to my imposing sentence on you.
61Shortly prior to your commission of the armed robbery in February 2023, you came to Melbourne to work on a job, and moved into shared accommodation in Box Hill. I understand that you knew your earlier co-accused, Mr Lin, from Sydney, and you had worked in jobs together. I have been told that your student visa expired in 2021, and you then obtained a bridging visa, allowing you to stay on in Australia. However, your bridging visa has now expired, and you have no authority to remain in Australia.
62I have been told that you do not suffer from any medical conditions, and have never seen a psychologist or psychiatrist, and were using methylamphetamine a couple of times a week prior to you being remanded into custody, now nearly two years ago. You have spent your time on remand, and as a sentenced prisoner, productively, and earlier, I was told you had been studying English and doing employment-related certificates. As a result of your lack of permission to remain in Australia by reason of your expired visa, you will be deported once your sentence expires.
63Ms Huang, you were 32 years of age at the time of your offending. You are now 34. You were born in the Fujian province in China, where you were the only child born to loving and supportive parents. You left school at 15 years of age after completing the equivalent of a Year 9 education, and left school to work in a shop that was owned by your uncle. You relocated from Fujian to Shenzhen, where you worked in a factory, and then you found full-time work in a nursing home. Whilst you worked in the home, you undertook a beauty therapy course, and then worked in that capacity before you moved to Australia in 2022.
64In 2014, you gave birth to a son, and your relationship with the father of your son ended shortly thereafter. Your son is being raised by your parents. Your purpose in coming to Australia was to study the English language, and you have a reasonable capacity to learn languages, including some fluency now in English. The student visa that authorised your time in Australia has lapsed, and when you are released from this sentence, you will return to China via deportation, which will disappoint your family and friends.
65After you arrived in Australia, you began a relationship with another Chinese national, and through this relationship, you were introduced to the use of drugs, which then deteriorated to abuse of drugs. You were introduced to people who were criminally inclined, and I understand you may have another matter pending in New South Wales. At the time of committing the offence of robbery, you had no prior criminal history and were a person of good character, which I take into account of mitigation of the sentence that I must impose.
66Following your involvement in that offending, on 23 May 2023, in the Burwood Local Court in New South Wales, you were placed on a conditional release order upon a finding of guilt for possess prohibited drug, and you were, without conviction, obliged to be of good behaviour for a period of 18 months from 23 May 2023. Your charge of attempting to pervert the course of justice was committed in breach of this obligation.
67I understand that your time in custody involved social isolation, and you received no personal visits. You do occasionally speak to your mother on the phone, but you cannot bring yourself to speak to your now 10 year old son. Ms Huang, I have been told by your counsel that your guilty pleas are reflective of a level of remorse, and I confessed, in the course of argument, that it is difficult for me to evaluate your level of sincerity and contrition of the trauma and loss you have caused the victim.
68I now do accept that you are reproachful of your own involvement in any offending, and this is out of character for you. I am prepared to accept and take into account that you understand the wrongness of your conduct, and that you are contrite for your involvement. So to the extent that I am able, I will provide some mitigation of sentence on the basis of that remorse.
69Mr Chen, to the extent that I am able to evaluate your attitude to your involvement in the attempt to pervert the course of justice, I understand that you might experience some disappointment at facing a further sentence, and that you have had the opportunity to reflect on the wrongness of your conduct. And whilst this doesn't necessarily enable me to mitigate sentence on the basis of remorse. I do acknowledge and take into account the passage of time and your growing understanding of the bitter consequences of your actions are factors which improve your prospects for rehabilitation, and I will take this factor into account shortly as one of the purposes of sentencing.
Objective gravity of your offending, moral culpability
70Ms Huang, I commence by considering the objective gravity of your robbery charge. I consider the objective gravity of your offence of robbery to be reasonably high, and I accept the prosecution's submission that the robbery, in this case, is a serious example of the offence.
71The robbery was planned, premeditated. It took place in circumstances where your victim was isolated from the outside world. On the day, you lured her to the scene of offending with knowledge and understanding, but your co‑accused - you, Mr Chen - would apply force or put her in fear in order for you to obtain a very significant amount of cash.
72Your victim suffered the loss of that money, and was subjected to an upsetting and traumatic event. Understandably, she has originally described herself as being stressed and very scared at the time of the offending. Your moral culpability lies in your willingness to assist in the robbery, and you were apparently motivated by the prospect either of financial enrichment, the provision of drugs, or your demonstration of your capacity to serve and assist your co‑accused.
73I turn to the offence of attempting to pervert the course of justice, to which you have both pleaded guilty. I accept, without any hesitation, the prosecution characterisation of this offence as a serious one that strikes at the heart of the justice system. Whilst your charge is confined to a single day - that is, 6 August 2023, which is the day that you, Mr Chen, called you, Ms Huang, from custody, and you, Mr Chen, told you, Ms Huang, to call the victim directly, and you, Ms Huang, agreed to get your supplier to call, and you said you would tell him what to say, and he will do it, leading to the victim of your offending receiving the two calls from the unknown man.
74During that call, it was apparent that this male, unknown to your victim, expressed an interest in meeting in private, and if possible, settling the subject of her evidence in private in exchange for the return of the money that you have robbed from her in compensation. An exhortation was made by this man on your behalf that she not appear in court, which will teach you, Mr Chen, a good lesson. The words, 'If he,' that is you, Mr Chen, 'Is imprisoned, this family will be destroyed,' were used.
75You, Mr Chen, encouraged Ms Huang to undertake these actions and stood to benefit significantly if the victim was, in fact, deterred from giving evidence as you would be released from custody and would no longer face charge. Mr Chen, you are the architect of the plan. Ms Huang, you acted as Mr Chen's criminal delegate without any hesitation in planning and then organising the calls, and you stood to gain personally from Mr Chen's gratitude. I do not accept that your motivation was pure friendship.
76Charges of this nature are inherently serious as they strike at the very heart of the justice system. The gravity of your offending lies not whether a perversion of justice actually occurred. It is your engagement in the conduct which had the tendency to divert the course of justice from its natural path. Your victim has been through an ordeal as a result of your offending. She was to be a witness against you, Mr Chen, the following day in the committal hearing on your serious armed robbery offence, and you invaded her time and her privacy to try to persuade her not to give that evidence to your significant benefit.
77At the time of your involvement in this offending, Ms Huang, you did not face a charge in respect of the robbery offence to which you now plead guilty. However, I find that your moral culpability lay in your willingness to participate in this attempt to divert your victim from the justice system in order to gain advantage for yourself and for your co‑accused, Mr Chen. Your counsel has submitted that, given that you were at liberty, you had little to gain from your involvement in this offence, and your offending was born from the desperation of your co‑accused, you, Mr Chen.
78Certainly, Mr Chen stood to benefit from the victim not giving evidence at committal, as I have found. I accept each of your counsel's contentions that, unlike in other similar cases, your involvement was indirect and involved the victim being contacted by another person, and no threats were made against the victim. Instead, appeals to her conscience were made, paired with the promises of reparation. Each of your attempts was in vain, and I now sentence you to imprisonment for your behaviour.
Sentencing principles, current sentencing practices, sentencing submissions
79Ms Huang, I note that this specific type of offending is out of your character and has been followed by the shame and punishment of time on remand, followed today by the imposition of a gaol sentence upon you, to be followed by the shame of deportation to China associated with the sullying of your reputation by criminal convictions for two serious criminal offences.
80You are now 34 years of age, and I trust and infer that the consequences of your shameful involvement in this offending have been of significant, salutary effect upon you. At the time of passing sentence upon you, Mr Chen, on 15 March 2024, you, Mr Chen, had not been charged with this attempt to pervert the course of justice. However, this behaviour had been alleged against you generally via an evidentiary notice, which may have become relevant and admissible had you proceeded to trial on the armed robbery.
81I knew then of the circumstances of this offending generally, and I used the circumstances to evaluate your counsel's submission that you were remorseful for your offending. I did not then sentence you for any further offending, as you were uncharged. There is no risk of double punishment. However, I have structured sentence to accommodate totality, as I am obliged to. In relation to each of your prospects for rehabilitation, I am prepared to infer that those prospects are good, given your relatively modest criminal histories and the circumstances that I have described.
82I must impose sentence on each of you that has regard to these prospects and allows for continued rehabilitation. In relation to each of your offences, the need for general deterrence is high. In other words, I am required to send a message to the community generally to deter others from engaging in this type of behaviour. I must give significant emphasis to this objective of sentencing, as well as to the need to denounce your behaviour and to punish each of you for your offending.
83I must also impose sentences that deter you specifically from future offending. I am, of course, aware of current sentencing standards for this offence, and have been assisted by the case law provided in the hearing. Ms Huang, in relation to your robbery offence, I must impose sentence having regard to the parity principle of sentencing. Mr Chen faced a more serious charge for his principal role in the offence of armed robbery upon your victim, which carries a higher maximum penalty than the charge of robbery, which you face.
84His actions involved use of a knife. I imposed a sentence of four years' and three months' imprisonment upon you, Mr Chen. Each of your co‑offender's, Mr Lin, pleaded guilty to a charge of robbery, as you have, Ms Huang. Mr Lin entered a plea of guilty to that charge following a sentence indication on the eve of trial. You, Ms Huang, entered a plea of guilty at a much earlier stage. Ms Huang, I find that you played a more active role in the robbery than Mr Lin by luring the victim to the location of the offending, and you were also present during the commission of the charge of robbery, and counted the money stolen.
85Mr Lin, I find, played a subordinate role to yours, Ms Huang, but each of you was subordinate to you, Mr Chen. I imposed a sentence of 18 months' imprisonment upon Mr Lin. Having regard to the parity principle of sentencing, I have endeavoured to impose a sentence that is not dissimilar to the sentence imposed in that case, having regard to the differences in circumstances and procedural matters. I must also have regard to the parity principle as between you on Charge 2.
86Mr Chen, your counsel urged me to have careful regard to an excess of two years and four months that have passed since you were initially remanded into custody on your armed robbery offence.
87Within that, over 11 months has passed between your plea of guilty to the armed robbery, and my passing sentence on this offence. I intend to impose an individual sentence upon your conviction for the attempt to pervert the course of justice charge, but I have had careful regard to the totality principle in my evaluation of the extent to which I will cumulate today's sentence upon your existing sentence.
88I am aware that, in the 11 months since I last passed sentence upon you, the punitive effects of your earlier sentence are in full operation. And accordingly, I am endeavouring as best I can to avoid any replication of punishment. Ms Huang, I have also had careful regard to the totality principle of sentencing in respect of your offending, and will avoid a crushing sentence.
89Mr Chen, I was urged by your counsel not to interfere with your existing earliest release date. I am unable to accede to this submission in the proper exercise of my sentencing discretion, and I will set a new minimum period across both offences before parole eligibility.
Sentence
90Ms Huang, on your charge of robbery, you are convicted and sentenced to 18 months' imprisonment, nine months of which I order be served cumulatively upon your sentence on Charge 2. Mr Chen, on your charge of attempting to pervert the course of justice, you are convicted and sentenced to two years' imprisonment. I order that 12 months of the sentence I pass on this indictment be served cumulatively upon the four years and three months that I imposed in my earlier sentence.
91The total effective sentence now, across both indictments, is five years and three months. Rather than the minimum I have previously imposed, I now impose a minimum across both matters of three years and six months, and I direct that all time after you were remanded into custody initially be deducted against that new minimum period before parole eligibility. Were it not for your plea of guilty, I would have imposed a longer sentence, which I am unable to be more specific about in the circumstances.
92Ms Huang, on your charge of attempting to pervert the course of justice, you are convicted and sentenced to one year and nine months' imprisonment. This is the base, which is a total effective sentence of two years' and six months' imprisonment. I order that you serve two years before parole eligibility. Were it not for your pleas, I would have imposed a sentence of three years' and five months' imprisonment. Could I please have Ms Huang's PSD as at today, or excluding today?
93MR ROBINSON: Yes, Your Honour… 263 days.
94HER HONOUR: Yes.
95MR ROBINSON: In relation to PSD for Mr Chen, he was arrested on 26 February 2023.
96HER HONOUR: Yes.
97MR ROBINSON: And both myself and my learned friend calculate that's 726 days.
98HER HONOUR: Yes. To the extent that I need to, I will enter that.
99MR ROBINSON: Yes.
100HER HONOUR: And that does seem to accord with my understanding that it was approximately two years after he was initially remanded into custody, rather than two years and four months. Is there anything… that I need to amend to do justice to the matter before I can retire and sign my order?
101MR DEAN: Your Honour, perhaps just raising this out of caution, and it might be something that maybe now I'm thinking about it, thinking that I can do, and my instructor can do, but perhaps we will just check with the Corrections sentence calculation, just to make sure that the sentence has been properly recorded. Because I know there has been instances in other cases where there's been an issue. I think Your Honour has made it very clear, but if there's any problem with how it's been recorded with Corrections, we will inform the court.
102HER HONOUR: Yes. Thank you very much. Corrections, ordinarily, do not let me enter into an order until they have checked it. It might be that this is the type of issue that can be dealt with numerically in chambers, if necessary, rather than requiring a further substantive hearing, if I have been inaccurate. It is my intention for an extra 12 months on the top, and an extra six on the bottom.
103MR DEAN: Yes. Thank you.
104HER HONOUR: Yes. Thank you. Anything else? Thank you.
105MS CARROLL: Not on behalf of Ms Huang, Your Honour.
106HER HONOUR: Thank you very much. I will now adjourn sine die.
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