Director of Public Prosecutions v Chen & Lin
[2024] VCC 312
•15 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01354
CR-23-01353
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KAIJIE CHEN CHEN LIN |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2024 | |
DATE OF SENTENCE: | 15 March 2024 | |
CASE MAY BE CITED AS: | DPP v Chen & Lin | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 312 | |
REASONS FOR SENTENCE
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Subject:SENTENCE – CRIMINAL LAW
Catchwords: Armed robbery- robbery –co-offenders- Chinese nationals
Legislation Cited: Sentencing Act 1991 (Vic)
Sentence: Mr Chen – total effective sentence of four years and three months imprisonment; non parole period of three years imprisonment;383 days of presentence detention reckoned as served; 6AAA declaration – five years imprisonment.
Mr Lin – convicted and sentenced to eighteen months imprisonment; 383 days of presentence detention reckoned as served; 6AAA declaration – two years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T. Crouch | Office of Public Prosecutions |
For Offender Chen For Offender Lin | Mr J. Miller Mr R. de Kretser | Paul Vale Criminal Law Doogue & George |
HER HONOUR:
Introduction
1Kaijie Chen, you have pleaded guilty to an indictment containing one charge of armed robbery, which carries a maximum penalty of 25 years’ imprisonment or 3,000 penalty units. Chen Lin, you have pleaded guilty to an indictment containing one charge of robbery, which carries a maximum penalty of 15 years’ imprisonment or 1,800 penalty units.
2The circumstances in which each of you came to commit those offences are set out in the summary of prosecution opening for plea dated 1 March 2024 (Exhibit A).
3Kaijie Chen, in addition to the matters developed in oral argument, your counsel relied on defence plea submissions dated 4 March 2024 with attached procedural chronology (Exhibit 1). Since the conclusion of the plea in mitigation of penalty, I have received certificates indicating your completion of the following courses whilst in custody:
· a Certificate II in Kitchen Operations, and a Certificate of Appreciation for Cultural Cooking Day dated October 2023, which I will now receive and mark as Exhibit 3.
4Chen Lin, in addition to the matters developed in oral argument, your counsel relied on defence outline of submissions dated 4 March 2024 (Exhibit 2).
5I have had careful regard to all exhibited documents, as well as to the matters addressed in the oral plea in mitigation of penalty.
Circumstances of your offending
6You are each Chinese nationals. On 23 February 2023, you, Mr Lin, rented a BMW X5 using your Chinese passport as identification. Early in the hours of the morning of 24 February 2023, your victim, Cuiyan Feng, used the social media application WeChat to discuss exchanging Australian dollars into Chinese Yuan with a person using the username 'Lulu,' whom I understand to be a further female co-offender, as yet uncharged in connection with this offending. Ms Feng and Lulu continued discussing arrangements and an agreement was made that Ms Feng would exchange $30,000 Australian cash for Yuan to be provided by Lulu, and the two of them arranged to meet.
7At 5.42 pm, Ms Feng asked Lulu to provide the address of the intended meeting place and she asked again at 5.48 pm.
8You, Mr Lin, then used Booking.com to book one night’s 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.
9At about 6.05 pm, you, Mr Lin, checked into the City Edge Hotel providing an electronic copy of a New South Wales identification which bore your name, date of birth and home address. A photograph was taken of this identification at your check-in and you used a credit card to pay for Room 101, which you had been allocated.
10At 6.10 pm Lulu sent your victim the address of the City Edge Hotel through WeChat.
11At about 6.12 pm, you, Mr Lin, drove the rented BMW X5 into the underground carpark at the hotel, with you, Mr Chen, and Lulu as passengers. Here, I interpolate that the prosecution case against you, Mr Lin, asserts that you first became aware of the arrangement to rob Ms Feng at 6.12 pm, upon your arrival at the hotel, and you were ignorant as to the fact that that robbery would involve the use of a weapon by you, Mr Chen. You, Mr Chen, were aware of the plan to commit an armed robbery upon Ms Feng prior to that time. The two of you and Lulu moved between the car and hotel room until about 6.30 pm, when your victim arrived. CCTV shows that at this point you, Mr Lin, returned to the carpark, while you, Mr Chen remained in the hotel room.
12At about 6.30 pm, the victim arrived and met Lulu in the reception area of the hotel. A conversation ensued between the two of them and they both went to Room 101 on Level 1, via the lift. A further conversation ensued about exchanging the money and Lulu asked the victim if she could exchange 40,000 in Australian dollars at that 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.
13The victim left alone and went to her car which was parked in Harrow Street in Box Hill, she retrieved the cash and then she drove back to the City Edge Hotel and parked.
14While the victim was downstairs retrieving the cash, Lulu went downstairs to the underground carpark and met you, Mr Lin, by the elevator door, where you had been waiting. Lulu and you, Mr Lin, took the elevator to Level 1, and both of you entered Room 101. Approximately one minute later, you, Mr Lin, left the hotel room and returned to the underground carpark, whilst Lulu and you, Mr Chen, remained inside the hotel room.
15At about 6.55 pm the victim brought $40,000 Australian dollars in cash to the hotel and met Lulu in the lobby, and the two of them went back to Room 101.
16Inside the room your victim and Lulu sat at the small table facing the door and discussed money and the victim provided her bank details to Lulu to transfer the Chinese currency to her. Lulu asked to check the cash and began counting it.
17You, Mr Chen, approached the victim from behind and you placed your arm over her left shoulder and around her neck. Using your right hand, you placed a large knife to the victim’s chest where it touched her.
18The victim said words to the effect, 'I want my life, take money and let me go.' Lulu took the $40,000 and left the room, and you, Mr Chen, removed the knife and your arm from around the victim and told her, 'stay here', before you left the room. This is the offending referable to your charge, Mr Chen, of armed robbery.
19CCTV taken from the City Edge Hotel at about 7.08 pm showed Lulu and you, Mr Chen, by now wearing a face mask, leaving the hotel room. Lulu placed a bag inside her jacket, and you, Mr Chen, carried an object consistent in shape with a knife wrapped up in something. You, Mr Chen, and Lulu, got into the lift and travelled down to the carpark.
20Meanwhile, you, Mr Lin, positioned the BMW adjacent to the lift exit and Lulu and you, Mr Chen, entered the vehicle and the three of you drove away.
21Meanwhile, the victim left Room 101 and attended the foyer area of the hotel, where she alerted the hotel manager as to what had occurred and then she called police.
22The two of you and Lulu made their way to the Quincy Hotel in Flinders Lane and checked in, where you, Mr Lin, had reserved two rooms for one night from 24 February to 25 February 2023.
23On Sunday 26 February 2023, you, Mr Lin, reserved a further two rooms at the Quincy Hotel. Police officers called around hotels in the Melbourne CBD area and found the reservation in your name, Mr Lin, at the Quincy Hotel.
Police investigation, arrests and interviews
24At 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 keycard and a keycard holder.
25At approximately 1.02 pm on Sunday 26 February 2023, police attended and entered one of the rooms that you, Mr Lin, had reserved at the Quincy Hotel, and located the two of you and two associates.
26The two of you were arrested and located in your shorts pocket, Mr Lin, was the key to the BMW.
27Police then located this vehicle nearby in Flinders Lane and seized it and the car was later searched, and police seized a Chinese passport in your name, Mr Chen, from the centre console.
28Items of clothing were seized by police, which appeared to be the clothes worn by you, Mr Lin, at the relevant time at the City Edge Hotel. Police also seized a pair of green and white coloured Vans shoes from you, Mr Chen, which appeared to be the shoes worn by you during the armed robbery.
29Each of you was then conveyed to Melbourne West police station, and you, Mr Lin, participated in a record of interview but declined to answer questions about the allegation; and you, Mr Chen, told police that you were too unwell to participate in a record of interview.
30Mobile telephone devices were later seized and one of those mobile phones was associated with the number used to book the room at the City Edge Hotel in Box Hill. Police then seized CCTV from the City Edge and Quincy Hotels.
31DNA analysis was undertaken in respect of items seized from Room 101 and a face mask was located which bore each of your DNA.
32After you were remanded into custody, Mr Chen, you made a series of phone calls to Lulu, also known as Min Huang, whom, as I have mentioned, is uncharged in respect of this offending. You made admissions in the course of these recorded telephone conversations indicating your knowledge and awareness including that CCTV would show that you and Ms Huang left the room (at the City Edge Hotel) in a hurry. In a number of recorded calls from a period between July and August 2023, you used words suggesting your enthusiasm for the victim to decline to testify in court, which I understand to be the subject of continuing investigation. The prosecution has drawn my attention to the suggested contents of these calls in order to assist in my evaluation of your remorse for your involvement in this offending.
Effect on the victim
33I have been told that the victim declined to provide a statement outlining the impact of your offending upon her. I infer and take into account that the offending resulted in a very significant loss to her of $40,000 cash and would represent a terrifying and traumatic ordeal with lasting effects upon her sense of safety.
Plea of guilty and timing
34You were each arrested, charged, and taken into custody on 26 February 2023, which was three days after your offending. The matter proceeded through the committal stream at the Magistrates Court, culminating in a committal hearing where each of you cross-examined the victim and police informant. Both of you were committed on a plea of not guilty.
35On 30 August 2023 the prosecution proposed that each of you, Mr Lin, resolve the case on a plea of guilty to a charge of robbery, which was rejected.
36The matter proceeded through a series of administrative hearings in this court and was set down for trial to commence 13 February 2024.
37In the days prior to trial, as I understand it, the prosecution served further evidentiary material in respect of your cases and on 9 February 2024, you, Mr Chen, indicated your intention to plead guilty to the proceeding charge in the face of that case. On that day, you, Mr Lin, sought an indication as to the likely sentence that would be imposed if you were to plead guilty to the charge of robbery.
38On 12 February 2024, that is, the eve of trial, you, Mr Chen, were arraigned and pleaded guilty to the charge that you face, and you, Mr Lin, received an indication as to the likely sentence I would impose were you to plead guilty to the charge that you now face. On the day of trial, that is, 13 February 2024, you, Mr Lin, accepted that indication and the trial was vacated.
39In respect of each of you, I take into account your pleas of guilty and their timing, that is, the day prior to the commencement of trial in your case, Mr Chen, and the day that your trial was scheduled to commence, Mr Lin. Whilst you had each cross-examined the victim to suggest that she was less than truthful on an earlier occasion, by your pleas of guilty you avoided the necessity for the 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 expense and inconvenience of your trial. I take into account in mitigation of sentence each of your pleas of guilty and their timing and the utilitarian benefit of those pleas.
Personal circumstances
40Mr Chen, you were 26 years of age at the time of your offending and you are now 27. You are the middle child of three born to your parents and you were raised in the Fujian Province in the south of China.
41You 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. Your 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.
42In 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.
43By 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 in renovations.
44In October 2022 you appeared at the Bankstown Local Court in New South Wales on two charges of drive motor vehicle while licence suspended and were fined on each and were 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 motor vehicle during a disqualification period and you were fined. In February 2023, at the Downing Centre Local Court, you were fined on charges of possess prohibited drug and having custody of knife in a public place. Whilst you were not of good character at the time of your criminal act, this offending represents a serious escalation from earlier offending. I am troubled by the fact that you have a prior conviction for an offence involving a knife in a public place in the same month as your offending occurred given your application of a large knife to Ms Feng’s chest in this case.
45Shortly prior to your commission of this offence 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 co-accused, you Mr Lin, from Sydney, and you had worked in jobs together.
46I have been told that your student visa expired in 2021 and then you 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.
47I have been told that you do not suffer from any medical conditions and have never seen a psychologist or a psychiatrist; and further that you drink, but not heavily, and were using methylamphetamine a couple of times a week prior to being remanded into custody.
48You have spent your time on remand at Fulham Correctional Centre where you have 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.
49I have been told by your counsel that your plea of guilty demonstrates, 'to some extent, [your] remorse', but the extent to which you have experienced any real recognition of the trauma and loss that you have caused to the victim is impossible for me to evaluate having regard to the form in which this submission has been made, as weighed against the words that I have seen attributed to you from the intercepted recorded conversations between you and Lulu whilst you were on remand, which shows that the overwhelming priority for you has been that the prosecution not proceed. In my view, the principal sense of regret in you is at the misfortune that you now experience being in custody, to be deported in shame back to China at the conclusion of your sentence as a result of your decision to commit this serious act against Ms Feng.
50Mr Lin, you were 29 years of age at the time of your offending and are now 30 years old.
51You were also born in the Fujian Province in China and at the age of six you moved to Shenzen in the Guanduong Province.
52
You are the only child born to your parents and I understand that your father left when you were young and you were raised by your mother, who has since
re-partnered. Your parents remain in China.
53You completed high school in 2012 and after you completed school you worked in a supermarket and as a chef, and you are a keen sportsman and you excel at basketball.
54You arrived in Australia in July 2018 on a bridging visa and settled in Sydney and found employment on a construction site. You were introduced to drugs for the first time in 2022 and in the second half of that year you were using methylamphetamine and associating with negative peers.
55In July 2022 you appeared in the Burwood Local Court in New South Wales, and on a charge of possess goods suspected of being stolen, you were placed on a community correction order, including a supervision condition, which was breached by the present offending. In October 2022 you were fined upon your conviction for drive vehicle with illicit drug present in your blood.
56Whilst you were also not of good character at the time of your criminal act and your commission of this offence breached the community corrections order which apparently served as no deterrent to you, this offending represents a serious escalation from earlier offending.
57In November 2022 you moved to Melbourne and commenced working on a construction site in Box Hill.
58Your bridging visa has lapsed and your application for a protection visa was rejected on 1 May 2023. Mr Lin, like Mr Chen, you currently have no valid visa and will be deported upon your release from custody.
59You have spent a majority of your time on remand at Fulham Correctional Centre, and apart from enrolling in an English language course, I understand that you have not been able to engage in any further courses due to language constraints. You have no family in Australia and have had no visitors in prison.
60I have been told and accept that you are thoroughly embarrassed by your offending, that you have some empathy for the victim’s experience in the robbery that you committed, and that you regret your involvement in the offending. I find you to have some remorse for your offending beyond your regret at the consequences that you have brought upon yourself and I mitigate sentence on this basis.
Objective gravity of your offending; moral culpability
61Mr Chen, I consider the objective gravity of your offending to be high. You were in company with another offender, your offence involved some preplanning, it took place in circumstances where your victim, a woman whom I have been told was slight in frame, was isolated from the outside world. You trapped her from behind, with your left arm across her neck, and with your right hand you applied a large knife to her chest, leading her to provide you and your uncharged co-offender with a very significant amount of cash. It was a terrifying ordeal. You were apparently motivated by the prospect of financial gain.
62Mr Lin, your offending is of a different and more modest character and is confined to your involvement and assistance in arranging the hotel room and the vehicle with an awareness, which dawned upon you at 6.12 pm that evening that a robbery would take place, in waiting patiently whilst your co-offenders executed the crime and in providing the means for their smooth escape from the scene of the crime. I consider the objective gravity of your offence of robbery to be grave, but of much more modest seriousness to that of your co-accused Mr Chen given that you are facing a less serious crime, of shorter duration, and a more limited role. You were apparently motivated by the prospect of financial gain or of currying favour with one or more criminal associates, or both.
Relevant sentencing principles; sentencing submissions
63I note that this specific type of offending is out of each of your character and has been swiftly followed by the shame and punishment of time on remand, followed today by the imposition of a significant jail sentence upon each of you, to be followed by the shame of deportation to China with the promise that each of your reputations will be sullied by a criminal conviction for a serious criminal offence. Each of you is still a young man and I trust and infer that the consequences of your shameful involvement in this sickening offending have been of significant salutary effect upon you.
64In relation to each of your prospects for rehabilitation, I am prepared to infer that your prospects are good given your relatively modest criminal histories and these circumstances. I must impose sentence upon each of you that has regard to these prospects and allows for continued rehabilitation.
65In cases of this nature 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. I must also impose sentences that specifically deter you from future offending. I have had regard to the parity principle of sentencing in imposing sentence upon each of you, to the extent that I am able, given the manifest differences in the offence each of you faces and the role performed by each of you.
66Mr Chen, the offence of armed robbery in company is a Category 2 offence pursuant to the Victorian Sentencing Act which requires the imposition of a sentence of imprisonment, excluding to be served in combination with a community correction order, unless exceptional circumstances apply. Your counsel has appropriately conceded no such circumstances exist in your case. The prosecution contends, as a matter of fact and law, that the appropriate sentence in all the circumstances is a period involving a head sentence before parole eligibility.
Sentence
67Mr Chen, on the charge of armed robbery you are convicted and sentenced to four years and three months’ imprisonment, and I order that you serve a minimum of three years before parole eligibility. Were it not for your plea of guilty, had you pleaded not guilty to this charge but been found guilty following trial, I would have imposed a head sentence of five years’ imprisonment.
68Mr Lin, on the charge of robbery, you are convicted and sentenced to a straight sentence of 18 months’ imprisonment. Were it not for your plea of guilty, had you pleaded not guilty to this charge but been found guilty following trial, I would have imposed a sentence of two years’ imprisonment.
69I reckon 383 days pre-sentence detention as served in respect of each of you and I order forfeiture of three mobile phones in each of your cases as sought by the prosecution, unopposed by your counsel.
70Thank you. Let's adjourn sine die please.
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