Director of Public Prosecutions v Chen

[2018] VCC 1271

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01150

DIRECTOR OF PUBLIC PROSECUTIONS

v

YUHAO CHEN

---

JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 August 2018
CASE MAY BE CITED AS:	DPP v Chen
MEDIUM NEUTRAL CITATION:	[2018] VCC 1271

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. White
For the Accused	Mr J. Dickinson QC

HIS HONOUR: 

1Yuhao Chen, you have pleaded guilty to an indictment containing three charges.  Charge 1 alleges an offence of kidnapping which carries a maximum penalty of 25 years' imprisonment.  Charge 2 alleges an offence of common law assault which carries a maximum penalty of five years' imprisonment and Charge 3 alleges an offence of possessing an unregistered general category handgun which carries a maximum penalty of 600 penalty units or seven years' imprisonment.  In addition, you were further charged and have pleaded guilty to a summary offence of possessing a dangerous article which carries a maximum penalty of 60 penalty units or six months' imprisonment.

2At the time of the offending, you were 20 years old and living and studying here in Melbourne on a student visa.  You are now aged 21.  The victim in this matter is Cheng Hao Li.  At the time of the offending, he was 16 years old and studying here in Australia at Alphington Grammar School on a student visa.  Two of your co-offenders, Wang and Xu, were both 17 years old at the time and also studying at the Alphington Grammar School on student visas and were known to the victim.  A third co-offender, Peng He, was 18 years old at the time and knew Xu through a mutual friend.  He too was studying in Australia on a student visa.

3The circumstances in which you came to commit the offences to which you have pleaded guilty are set out in a long and detailed prosecution opening dated 2 July 2018, a copy of which was tendered as Exhibit A on the plea hearing.  I have had regard to that opening when determining the appropriate sentence.  I will not recite the full circumstances of your offending.  It is sufficient for present purposes to provide this outline. 

4On 21 April 2017, Xu informed He that he had been assaulted and robbed by Qi Yuan Huang.  Huang was a friend of the victim, Li.  Xu explained that earlier that day he had responded to a message from a girl on WeChat.  The two arranged to meet up, however when Xu arrived to pick her up at the agreed location, there was in fact no girl.  He claimed he was instead assaulted and robbed by Huang and another unknown young man.  Xu believed that the WeChat account used to contact him belonged to Li. 

5He, Xu and Wang decided to attend to apprehend Huang, regain the stolen money and then take him to the police.  They enlisted you to assist you as you owned a car, a silver Kia Cerato.  The four of you drove in your vehicle to Box Hill where it was believed Huang would be but on the way, you determined that he was not there.  You then decided to locate and speak with Li as he would be able to direct you as to Huang's whereabouts.  At this point in time, it is agreed that there was no intention to harm Li.

6Li had arrived at an internet café in Box Hill at about 10:00 pm where he joined a number of friends playing computer games and socialising.  At about 12:00 am, Li and his group were outside the front of the establishment smoking when you and your co-accused arrived and entered the internet café through a rear entrance.  After some discussion with other patrons, you eventually located him.  You told him to come with you as you wanted to talk.  When Li refused, He pushed him against the wall.  Li was frightened and the four of you surrounded him and led him away against his will.  That was the beginning of the charge of kidnapping. 

7A couple of Li's friends saw this incident and became worried for his safety.  They followed you out and down the street but soon lost sight of you.  They then returned to the café and asked another friend to call Huang and inform him as to what had just occurred. 

8You and your co-accused led Li back to your car and bundled him into the backseat. His mobile phone was taken from him and you drove to the nearby Box Hill gardens.  There you all exited the vehicle and surrounded Li, and at this point you produced a fruit knife and played around with it.  Huang slapped Li in the face while Xu kneed him in the buttock two or three times.  That is the assault charge on a complicity basis. 

9You then all got back into your car with Li.  A short time later, two further men joined your group and replaced Huang and Xu in your car.  He instructed Huang and Xu to catch an Uber and meet them at Brighton Beach.  You then drove your vehicle with Li and He and the two newcomers only known as Derek and Andy to Brighton Beach.

10When you arrived, Huang and Xu were already there waiting along with another male known as Evan.  By now, you were one of seven males with Li.  At one point, Evan produced an iron bar and hit Li on the face and back and pushed him to the ground.  I note that the Crown concede that you are not morally culpable for this assault.

11At another point, He produced a gun and played around with it, showing it to Li and letting him hold it for a moment.  He then directed Li to strip off his clothes and walk towards the sea.  Li refused and began to struggle.  Derek then punched him in the face quite a few times and Li eventually acquiesced, stripped down to his underwear and began walking into the ocean.  When the water was up to his knees, he was told to forget about it and he returned to the shore and dressed. 

12Back at the internet café, Huang arrived and was informed of what had earlier transpired.  The group decided to call Li's mobile phone.  It was answered by a male who told them that if they wanted Li back, they should come to the city before hanging up.  They attempted to call again but the phone went unanswered.  Huang then contacted a number of friends to assist in trying to locate Li.  They caught taxis into the city and arrived at 1.40 am, deciding to wait for further instruction. Shortly afterwards, Huang received a text message that stated, "1 Waterfront Place, Port Melbourne."  Huang then approached a number of police officers and asked for assistance in locating Li who he explained had been kidnapped. 

13Back at Brighton Beach, you and your co-offenders eventually decided that you would take Li home.  Li was, for obvious reasons, hesitant to disclose his home address so he asked to be dropped off at his girlfriend, Zhang’s house.  He was returned his mobile phone so that he could call Zhang and ascertain the address which he did.  You and the group then drove Li to the address in Cheltenham where he got out and you all left. 

14In total, this whole incident lasted roughly four hours.  Shortly after his release, Li called a friend to inform him that he had been released and the police later attended to check on his welfare.  On 23 April 2017, Li made a statement through VARE and the following day he attended the Alfred Hospital for a physical examination.  The examination revealed bruising to his left thigh, tenderness around his right temple and left scapula and bruising on the greater trochanter, a part of the femur at its upper end near the pelvis.

15The police conducted a thorough investigation utilising TV footage and the examination of phone records and co-offenders Huang and Xu were arrested in late April 2017.  On 3 May 2017, co-offender He was detained at Melbourne Airport trying to leave Australia and was later arrested.  On 1 May 2017, your Kia Cerato sedan had been located abandoned in Southbank.  The vehicle appeared to have been spray-painted by hand but the original silver colour was still visible in parts and both the front and rear registration plates had been removed.

16Police inquiries ascertain the car's registration which led them to the owner who confirmed that he had sold you the car sometime earlier and he produced records to that effect.  The car was later seized for examination and it revealed a number of items inside the boot of the vehicle including a handgun the subject of Charge 3, four machetes the subject of the summary charge and together with the vehicle's registration plates, facial masks and rubber gloves.  Forensic analysis of the handgun revealed an extremely high likelihood that it contained your DNA, though I note that the Crown does not allege that this was the same handgun used during the incident with Li.  In addition, the knives, the machetes, were also examined and a number of them revealed traces of your DNA although again I note the Crown does not allege that they were used during the incident with Li.

17On 5 February 2018, you were arrested and remanded in custody and that same day you were interviewed and you gave no comment to all the questions.

18A victim impact statement was completed by Mr Li and received by the court.  In it, he indicated that he was scared and the ordeal caused him to lose sleep and ongoing anxiety.  He has become wary of social contact with strangers and his sense of safety and security has been affected.  He remains vigilant and the experience has had a traumatising effect upon him despite which in a very dignified fashion he writes to you to try to be a good person, and to the court to deal with the case with justice and fairness.  He received swelling and bruising to his left eye as shown in the photographs as well as the other small bruises to his legs and back and I take this statement into account.

19This was a very foolish and immature endeavour by you and the others involved.  The initial plan I accept was to assist Mr Xu to recover the money taken from him and potentially bring the victim to the attention of the police.  However, when others became involved, your involvement meant that this became a joint criminal enterprise in effect which meant liability attached to you for the behaviour of others including assaults which occurred in the locations that I have mentioned.  The most serious of these were the strikes to the face of the victim and the hit to the back and legs.  Your own particular involvement was primarily as a driver of persons in your car.  At one point, you also produced a knife but nothing flowed from that display.  I accept, as did the prosecution, that when Li was assaulted, you were shocked and surprised.  But thereafter, you again lent your support to the endeavour by driving and using Li's phone.

20You did not desist from your participation.  The prosecution fairly put that you are not morally culpable for the assault with the iron bar.  A gun was also produced and Mr He showed it to Mr Li.  It is notable that you drove Li to the address of a friend of his and he simply walked off.  His wallet was returned intact and the items found in your car were unrelated to the events mentioned.  However, there is no doubting that you participated and assisted in a prolonged episode some four to five hours in which your victim was intimidated, threatened and humiliated.  You were not alone, of course, and you appeared to have played a lesser role than a number of others.  The ordering the removal of his clothes and telling him to walk into the sea was an attempt to shame him for a wrong done to a friend by Li's best friend. 

21Your involvement started by accepting the invitation to He's request for assistance.  It is clear you well understood the wrongfulness of your participation in that you had your car painted to disguise it and sought to dispose of the vehicle.  I was told the gun and machetes were not yours.  If this is true, it is perhaps another sign of your immaturity and lack of judgement.  If they were yours, they were not produced during these events but not for that can it be said that it was wise for you to have them in your car. 

22Kidnapping carries a maximum sentence of 25 years and is therefore very serious offending.  In general terms, the offence seeks to extent protection to the integrity of persons even when no harm is done.  The deprivation of liberty, the causing of fear, the creation of dangerous situations often accompanied by unwarranted demands are at the heart of the crime.  However, it must be recognised there is a great variation in the circumstances which encompass kidnapping. 

23There is in your case a lack of careful and deliberate planning in my view rather ad hoc and foolish spontaneous decision-making and specifically to you, foolish willingness to go along with the wishes and ideas of other people.  Rather than a hostage held to make ransom demands, the keeping of Mr Li was to resolve a small dispute or redress a wrong done to a friend of a friend.  This reduces substantially the seriousness of the offence.  One must not, however, diminish the circumstances.  The period of detention was prolonged, there was some harm done as well as humiliation.  There were weapons used and displayed.  Though there was ultimately no gain, the impact has been serious.  I do not disregard the fear this escapade engendered in Mr Li. 

24I do not accept that simply because greed was not a motive that moral culpability generally is greatly diminished.  Revenge where the harm is disproportionate to the perceived wrong in response have here culminated in false imprisonment and in these circumstances, the victim and their friends or associates cannot take the law into their own hands.  Two wrongs do not make a right, and the dominant purpose of the sentence must therefore be just punishment and general deterrence.  Although specific deterrence, denunciation and community protection remain relevant, they must fall behind the primary objectives.

25However in your case, an even greater priority must be accorded to your youth.  Though your co-offenders were younger than you, you obviously were not much older and still a youthful offender.  The policy of the law is that in these circumstances the sentence of the court should foster your prospects of rehabilitation.  In my view, your obvious immaturity is central to your lack of judgement in this situation which allows for a reduction in moral culpability.  Your situation of required self-reliance away from your family further exacerbated this lack of insight on your part.  The object of reclamation and rehabilitation will therefore be of primacy in my sentence. 

26This view is augmented by other factors.  Your plea of guilty was not made at an early stage.  A contested committal was run in late May 2018 in which He gave evidence according to his undertaking to the court.  You had been arrested in early February 2018 and you were remanded in correctional reclusion and a trial date fixed for July of this year.  Your plea still has a utilitarian benefit of having avoided a trial.  The benefit of a discount, though reduced, is nevertheless applicable to your plea. 

27You have no prior criminal history and were of good character until your involvement in these offences.  I accept you came from a good background and family, and your parents who came from China and appeared in court to support you and provided a good basis for ongoing rehabilitative prospects in the future provide an important protective component. 

28I received a number of excellent references on your behalf which I take into account.  They were from your parents, a neighbour who is an accountant, your maternal grandmother, a teacher who taught you in high school and an aunt of yours who is a district court judge in Dalian city.  Each of them writes of how uncharacteristic and out of character this behaviour is, and of their shock and surprise.  You have had a good education, you are a talented and hardworking student, you are said to have involvement in social welfare activities and each writes of your generosity and deep-felt remorse for your behaviour.  You are an only son and the hope and light of your parents.  They speak of your intelligence, talents and capacity.  They reflect on this experience as perhaps their fault in giving their son too little attention.  I suspect the opposite is perhaps true, but there is little doubt that perhaps your experience of living and studying here alone and left to your own devices was beyond your true capacity.

29You have now lost the opportunity sought to complete your education here in Australia which I accept may be a future disadvantage and loss of opportunity which by its consequence is extra-curial punishment.  You will likely be deported at the end of your detention and this return to China, though in the arms of a welcoming family, really represents a squandered opportunity of significant value.  I take this into account.

30In relation to the offending of kidnapping, you are to be sentenced pursuant to s.5(2H) of the Sentencing Act 1991 as a category 2 offence. This provision mandates a period of incarceration unless one of the exceptions set out apply to you. None of them do apply.

31In arriving at the appropriate determination, I have sought guidance from current sentencing practices for kidnapping and a series of recent decisions which deal with such sentences and I have in particular had red to DPP v Palise [2017], DPP v Baker [2016] and DPP v Flavel [2016], all of this court.  They, it seems to me, come closest to considerations at play here and demonstrate the type of offending which this kidnapping charge more closely resembles.  In the end, I have determined that incarceration is inevitable and that it is appropriate given the relevant factors I have mentioned that yours be a lenient sentence in the circumstances. 

32I have also considered the issue of parity.  Two of your co-accused, Wang and Xu, were dealt with in the Children's Court and fined $1500 for kidnap and assault.  Both were 17 and had been subsequently deported.  He received a sentence much ameliorated by his undertaking and the cooperation he gave to authorities, though he had a substantial period of detention in a migrant facility which the sentencing judge factored into his sentence.  In my view, the sentence which I will impose is appropriately reflective of your criminality on this occasion and of the factors I have mentioned, particularly your youth.  Your age, of course, means that a Youth Justice disposition is not available to me and I am conscious of the exposure to adult incarceration for a young and probably vulnerable young man.

33Please stand.

34On Charge 1 of kidnapping, you are convicted and sentenced to six months' imprisonment.

35On Charge 2 of assault, you are convicted and sentenced to four months' imprisonment.

36On Charge 3 of possession unregistered general category handgun, three months' imprisonment.

37On Charge 4, possessing dangerous articles, one month imprisonment. 

38I order one month on Charge 2 to be cumulative on the base sentence, Charge 1, with other sentences concurrent, making for a total effective sentence of seven months' imprisonment.

39I declare that you have served, excluding today, 189 days.

40I will note that number for the records of the court as days which have been served by way of pre-sentence detention.  I have signed disposal and forfeiture orders.

41But for your plea, I would have sentenced you to 15 months' imprisonment.

42Are there any other ancillary orders that I need to make?

43MR WHITE:  No, Your Honour.

44HIS HONOUR:  Yes, thank you.  Yes, you can remove Mr Chen.  Thank you, Mr Dickinson.

45MR DICKINSON:  Thank you, Your Honour.

46HIS HONOUR:  Thank you very much, Mr White.

47MR WHITE:  Thank you, Your Honour.

48HIS HONOUR:  Thank you for making yourself available, I will cease that link now.  I have another sentence to proceed with, Mr Dickinson, I'll just wait on the Bench.

49MR DICKINSON:  Thank you, Your Honour.

‑ ‑ ‑