Director of Public Prosecutions v Cheng

[2017] VCC 213

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 16-01485

DIRECTOR OF PUBLIC PROSECUTIONS

v

LONG CHENG

---

JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Bendigo
DATE OF HEARING:	8 March 2017
DATE OF SENTENCE:	8 March 2017
CASE MAY BE CITED AS:	DPP v Cheng
MEDIUM NEUTRAL CITATION:	[2017] VCC 213

REASONS FOR SENTENCE
---

Subject: Perverting the Cause of Justice
Sentence: 2 year Community Correction Order

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Gibson
For the Accused	Mr T. Phillips

HIS HONOUR:

1Long Cheng, you have pleaded guilty to one charge of perverting the cause of justice, for which the maximum penalty is 25 years' imprisonment.

2You have also pleaded guilty to a charge of driving whilst disqualified.  That is a subsequent offence, and in the context of this case, is punishable by two years' imprisonment and possible cancellation of your license.

3Your offending is described in a prosecution summary, which was tendered in evidence and read in open court by the learned prosecutor, Mr Gibson.  Your counsel, Mr Phillips, accepted that, apart from one or two minor alterations, the summary accurately sets out the factual scenario upon which I can pass sentence upon you.

4On 20 August 2015, you appeared at the Sunshine Magistrates' Court on a charge of driving whilst suspended on 4 April 2015.  The magistrate suspended your license, which you held in your name for a period of one month, and as a result, you were disqualified from driving.

5Five days later, on 25 August, you were intercepted whilst driving along the Loddon Valley Highway in circumstances where your car veered onto the path of a car being driven by a police inspector.  You produced a false license and gave your name on the license, and you were later interviewed at the Kerang Police Station, where you maintained the false identity.  All of this led you to being charged with unlicensed driving and careless driving, and you appeared in the Magistrates' Court under a false name, and you had a discussion with the magistrate, in which the false identity was maintained.

6You were dealt with in the Magistrates' Court, but later it was ascertained that everything that you had told the police and the magistrate was false as to your identity.

7Perverting the cause of justice is one of the most serious offences in the law.  When it occurs, it strikes at the fabric of the rule of law in this country.  As your counsel pointed out to me, there are infinite variety of ways in which the offense can be committed.

8Whilst this is another serious example of what is a serious offence, I think what you did falls towards the lower end of the scale for this offence.  Normally, offending of this kind would be punished by a term of imprisonment.  That is because of the seriousness of the offence and the court, by its sentence imposed, must seek to influence others who might seek to offend in the way that you have.  Offenders need to think twice before they engage in this offence, and the penalty imposed by courts is designed as a deterrence to them.

9It is called application of the principle of general deterrence.  That is the guiding principle which determines the sentence which a court should impose.

10In this case, you clearly set about devising a situation where, if apprehended by police, you would be able to produce false identity.  Having embarked upon that course, you did not turn back.

11The most important part of the criminal conduct that you engaged in, in my view, was the way that you lied to the magistrate.  That in no way am I seeking to diminish the way that you lied to the police officers.  However, you lied during the course of justice that had been instituted when the matter was referred to the court, and that will not be tolerated.

12However, I think that your moral culpability is, to some extent, to be reduced in this case, because of your background and the fact that you were born and raised in China, where there are different customs and different attitudes to this kind of conduct.

13You have pleaded guilty to the charges, and I treat you as having pleaded guilty at an early time.  For that you are entitled, in my view, to a reduction in sentence, and that will be expressed in my reasons a bit later.

14You were born on 9 August 1989 and you are 27 years of age.  You came to Australia in 2008.  Having completed schooling in China, you came here on a student visa and you now hold permanent residency.

15You have a number of driving offences but you appear before the court for the first time for a breach of the criminal law.

16Your driving record is poor.  You have appeared before the Magistrates' Court on two occasions, and you have had traffic infringement notices on two occasions, and your license has been suspended on at least two occasions, possibly more.

17You have done your best to do well for yourself.  You have acquired and operate a hairdressing business in Kerang, and all that is to your credit.

18I treat your pleas of guilty as an indication of your remorse.  Mr Phillips told me from the Bar table, and I accept, that you are remorseful for your conduct.

19One of the issues that I have to address with the sentence that I impose is your prospects for rehabilitation.  I think your prospects for rehabilitation are reasonably good.  One can never be certain.  However, in view of the fact that you have got an unblemished record up until now of having committed any criminal offence, I am reasonably confident that you will not reoffend again in this way.

20The sentence that I impose must express denunciation of your conduct. 
Mr Phillips submitted that I should not send you to gaol, but that I should impose a community corrections order.  There was some discussion about the cases of Saleem v The Queen [2014] VSCA 190 and Zotos v The Queen [2014] VSCA 324.

21I think the offending in this case, although serious, falls at a bit lower level than those cases, and because you have not previously been in trouble with the law, in the criminal sense, although I express some scepticism at the appropriateness of imposing a community corrections order, the powerful advocacy of your barrister, Mr Phillips, has convinced me that, that is the right course to take in this case.  However, there will be a punitive aspect to it.

22In all the circumstances, I have decided that the appropriate course to take is to convict you on each of the charges, and on each of the charges, I will make a community corrections order for a period of two years.  There will be conditions that you undertake:  100 hours of unpaid community work; that you undergo supervision by a corrections officer; and that you undergo treatment and programs to assist you with rehabilitation, and to address your offending, particularly driving offences.

23In addition, on the drive whilst disqualified charge, I also impose a fine of $1,000.  Any questions arising out of that, Mr Phillips?

24MR PHILLIPS:  Just to seek a stay in respect of that fine, Your Honour.  Two months?

25HIS HONOUR:  Yes, I'll grant a stay of two months.

26MR GIBSON:  As Your Honour pleases.

27HIS HONOUR:  There is also a forensic sample order sought by the prosecution, which is not opposed, and having regard for the seriousness of the matter, I propose to make that order.

28ASSOCIATE:  Do you confirm this is your signature, Mr Cheng?

29OFFENDER:  Yeah.

30ASSOCIATE:  Thank you.

31HIS HONOUR:  Mr Cheng, do you understand what the effect of this order is?

32OFFENDER:  Yes I do.

33HIS HONOUR:  Well, let me tell you, in summary form.  You must comply with all the conditions of it.  That is, if you are required to attend upon the Community Corrections officer for supervision, you do so.  You understand?

34OFFENDER:  Yes, yes.

35HIS HONOUR:  If you are required to undertake programs to address your offending, you do so.  No ifs, nor buts.  Do you understand that?

36OFFENDER:  Yes.

37HIS HONOUR:  You are required to complete 100 hours of unpaid community work.  You have to do that, no ifs or buts.  Do you understand that?

38OFFENDER:  Yes.

39HIS HONOUR:  Now, for the next two years, you must not commit any offence punishable by a term of imprisonment.  Do you understand that?

40OFFENDER:  Yes.

41HIS HONOUR:  And that includes a driving offence.  If you drive whilst disqualified and you are apprehended by Sergeant Grey, who might be going in the opposite direction to you, you will breach the order.  Do you understand?

42OFFENDER:  Yes, yes, yes.

43HIS HONOUR:  And if that happens, you will be brought back and dealt with by me.  Do you understand that?

44OFFENDER:  Yes, yes.

45HIS HONOUR:  The first thing you have to do is you have to report to the Swan Hill Community Correctional Service at 1-3 McCallum Street in Swan Hill within two days.  Do you understand that?  Was that explained to you?

46OFFENDER:  Yes.

47HIS HONOUR:  All right.  You are free to leave.

48OFFENDER:  Thank you.

49MR PHILLIPS:  May I be excused, Your Honour?

50HIS HONOUR:  Yes, thank you, Mr Phillips.

51MR PHILLIPS:  Thank you.

52HIS HONOUR:  My associate needs to give you a copy of the community corrections order.  I think you better take a copy of that and read it closely.

‑ ‑ ‑