Director of Public Prosecutions v Cheung-Pun
[2021] VCC 934
•12 July 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-00710, CR-20-00320, CR-20-00319
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUNIOR CHEUNG-PUN |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 July 2021 |
DATE OF SENTENCE: | 12 July 2021 |
CASE MAY BE CITED AS: | DPP v CHEUNG-PUN |
MEDIUM NEUTRAL CITATION: | [2021] VCC 934 |
REASONS FOR SENTENCE
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Subject: Criminal Law Sentence
Catchwords: Three indictments – Separate instances of offending – Arson – Theft of motor vehicle – Common Law Kidnapping – Common Assault – Assaulting Custodial Worker on Duty – Unlawful Assault – Serious mental health concerns.
Legislation Cited: Mental Health Act 2014 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: R v Verdins 16 VR 269; Guden v The Queen [2010] VSCA 196.
Sentence: 129 days imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Fallar | Office of Public Prosecutions |
For the Accused | Mr H. Moodie | James Dowsley and Associates |
HIS HONOUR:
1Junior Cheung-Pun, you have pleaded guilty to three indictments before me and two relevant summary offences. You have pleaded guilty on indictment J13367632 to one charge of kidnapping which carries a maximum penalty of 25 year's imprisonment, one charge of theft which carries a maximum of 10 years' imprisonment and one charge of common assault, which has a maximum of five years.
2On indictment J13184717 you have pleaded guilty to one charge of arson which carries a maximum penalty of 15 years' imprisonment. On indictment J13186962 you have pleaded guilty to three charges of assaulting a custodial officer on duty which carries a maximum penalty of five years' imprisonment for each charge. You have pleaded guilty to summary offence Charge 4 which is an offence of unlawful assault on Mang Cheung-Pun and you have also pleaded guilty to summary offence Charge 6, a contravention of bail offence. You have one prior matter which does not bear to any significant extent upon the exercise of my sentencing discretion.
3Now the facts of the matter are as follows. In relation to the indictment that is the first in time containing the kidnapping offence, I sentenced your co-accused Mr Daniel Woodford on 19 March this year in relation to those matters and I imposed a sentence upon him of 47 days imprisonment in combination with a two-year community corrections order. Daniel Woodford was the instigator of the offence. Exhibit C, which is the Prosecution Opening for Plea, forms part of the reasons for sentence in your matter and I do not propose to go through that opening in detail. What I do intend to do is to point out your involvement in the kidnapping, theft and assault that you have pleaded guilty to.
4Woodford decided that the victim, Grech, was to be interfered with in relation to a grievance he had with Grech. You were driving Woodford. As you were driving, Woodford saw Grech's vehicle drive along Somerville Road, Sunshine West, and he directed you to follow Grech's car. Grech ended up at a 7-Eleven. You followed him there. He was getting something inside when he was assaulted by Woodford, who grabbed him by the throat and dragged him outside by the collar.
5You got out of the car and assisted in restraining Grech. He yelled out, 'Let me go'. You had never met him before. You told, him, 'Shut the fuck up, do what I'm telling you'. You helped force Grech inside the car as he was resisting. You struck him to the face whilst Woodford started the car. Grech continued to resist. You got him in the car, shut the door, and then Woodford drove off. You went to Grech's vehicle and followed Woodford in Grech's vehicle.
6At a later point, once the vehicles were stopped, Grech got out of the vehicle at Miller's house, who is an associate to both yourself and Grech. Grech immediately ran the other way across the road. Woodford began chase and yelled at him to stop. The car driven by you suddenly appeared and drove towards Grech. You drove alongside Grech, then turned left and blocked his path. The bumper bar of the vehicle you were driving struck Grech's right knee and he got wedged between the car and the fence. Grech has stated that the car was not driving fast and it barely broke the skin.
7Grech was apprehended again by you and Woodford. At one point Grech heard you say to 'open the boot and put him in there', and Woodford said, 'You're not doing that'. At this point Woodford hit him several times on the face and chest area. You assisted in again forcing Grech back inside the front passenger side of the car.
8You were arrested on 9 December 2018 on unrelated matters, due to mental health issues you were not interviewed in relation to this matter and the offending on 30 November 2018.
9Just before your arrest, some days earlier on 7 December 2018, and I now come to the facts relating to indictment J13184717 and I am referring to Exhibit A, the prosecution opening in relation to that matter. Exhibit A forms part of these reasons for sentence.
10In brief, on Friday 7 December 2018 your victim was inside the house. You came in and told her to clean the house. She started cleaning the house and your daughter's toys. You told her to get her make-up, saying that they were evil and you would burn them in hell. You were clearly mentally impaired to some degree at this point. You collected shoes and clothing and toys. You went outside and locked all the doors. You left in a car and then returned with a container of petrol. You said you needed to burn the items because they were evil.
11You poured petrol on the items, lit a piece of paper with a lighter and threw it on the items, burning them. You said, 'Evil, I burn you in the name of Jesus'. It started to rain and then that brought an end to the burning. You were clearly impaired. At one point you told your victim that she had to stop showering in hot water because the devil likes it hot and she should have a cold shower instead. You turned off the hot water and grabbed her head under the cold running water. You told her to put some nice clothes on because you would like to go live on Facebook on ‘Jesus Saves’, which is apparently some Facebook site, so you could preach. For the next five hours you kept talking about God. You told your victim that she was lazy because she had the devil in her.
12On 8 December 2018 you were out in the backyard and you were still talking about God. You told your victim to come closer and have a look at a light and pointed to it. She sat next to you but could not see the light and you slapped her across the face and you said, 'This is the slap of the Holy Spirit and you need to wake up'. She sat there in fear and she was shaking. She eventually grabbed her keys and ran down the street to alert police.
13You were interviewed on 9 December 2018 when you were arrested. The interview was suspended at some point when a forensic medical officer made some observations of you and it was determined that you were not fit for further interview. You had already stated that you were at the backyard smoking cigarettes. You asked your wife to bring the laptop to play some songs. You saw light from the sky and wanted to show her. You touched her where you can feel the Holy Spirit sometimes. You touched her and thought about the Lord. When you touched her face you saw that she had a devil's face and that is when you saw the lights. You went on to say you do not know why she ran away. She thinks you are a ghost. There were other statements you made which indicated your delusional thinking at the time.
14After your arrest, the events the subject of indictment J13186962 occurred. The opening in relation to that is Exhibit B and forms part of these reasons for sentence. You were clearly very unwell at this time.
15On 9 December 2018 at about 2.15 pm two female custody officers, who I will refer to as KD and MN, attended your cell to take you for a routine medical assessment. They asked you to come out so they could take you to the nursing station. You calmly stepped out; however, suddenly you lunged at KD, grabbing her in a chokehold and placing her in a neck lock. MN then came to the aid of KD and called for help. You pushed MN away, clipped MN on the lip, causing bleeding. A third custody officer AM, who saw the incident, ran to assist and to remove your grip. You were thrashing around, resisting, and during the struggle AM fell to the ground. You were then handcuffed and taken back to your cell.
16In the plea on your behalf, Mr Moodie relied on three psychological reports authored by Carla Ferrari and they are Exhibits 2, 3 and 4 and they are reports dated 15 September 2019, 24 October 2020 and 15 May 2021. The content of these reports are illuminating and carry great significance from a sentencing perspective.
17Mr Moodie filed comprehensive sentencing submissions and those are Exhibit 1. The chronology set out in Mr Moodie's submissions is helpful in understanding these reasons for sentence. You were born in Samoa in 1992. In 2006 you moved to New Zealand and received New Zealand citizenship. You came to Australia in 2015.
18On 29 March 2017 you were sentenced for the prior matter of recklessly causing injury and received a $1000 fine without conviction. As I understand it, you have no other findings of guilt.
19On 30 November 2018 the kidnapping, theft and common assault offences occurred. Then, as I have pointed out, on 7 December 2018 the arson, unlawful assault, breach of bail and, once taken into custody, the assault on custody officers just described.
20On 17 April 2019 you were granted bail after serving 129 days, I think it is agreed, on remand. In September 2019 you were assessed by Ms Ferrari who assessed you as unfit to plead. Later in that year the matters were uplifted to the County Court on the basis that a mental impairment defence would be relied upon.
21In October 2019 you were admitted to the North Western Mental Health at Sunshine Hospital for 12 days pursuant to the Mental Health Act 2014 (Vic). In March 2020 your visa was cancelled by the Department of Home Affairs on the basis of the criminal charges before the Court. On 19 June 2020 you were placed in immigration detention where you have remained until present. In October 2020 Exhibit 3, the report of Ms Ferrari, concluded that you were at that time fit to plead.
22The reports of Ms Ferrari indicate, and I accept, that you were experiencing disruptive symptoms of psychosis from the outset during the period of alleged offending across the three matters, which certainly became more exacerbated by the second and third indictment matters.
23In a report of 15 September 2019, Ms Ferrari concluded that you were unfit to plead. She also concluded that there was sufficient evidence that at the time of your alleged offences you were mentally impaired due to a combination of prodromal and active symptoms of psychosis. In her second report dated 24 October 2020, she noted that your mental state had improved significantly due to your compliance with the medication regime which reduced your psychotic symptoms, and she concluded that you were fit to plead.
24In the third report, Ms Ferrari made the following conclusions:
i) The onset of your psychotic symptoms significantly preceded the alleged offending.
ii) The available evidence suggests that you were in fact experiencing psychosis during the entirety of offending, though you were not in the acute phase of symptoms at the time of the kidnapping.
iii)The deterioration in your mental state preceding the period of the alleged offending was severe and would have impacted your ability to understand your actions as wrongful, and compromised your capacity to understand the nature and quality of your conduct.
25These matters were significant in relation to findings I have been asked to make in relation to s5(2AC)(i) and (ii) of the Sentencing Act 1991 (Vic) in relation to the offence of kidnapping. Ms Ferrari also concluded that imprisonment is likely to be more onerous for you than for an offender without the mental impairments and psychological profile you experience.
26Ms Ferrari found that it could not be said with clarity whether there was a causal link between your mental state and the kidnapping offence. However, I accept that you were experiencing a severe decline in your mental health at the time and that your perception, decision making and judgment was affected to some degree.
27In relation to the matters the subject of indictments 2 and 3, being the later two in time in relation to the offending, it is clear that you were impaired to a significant degree. It was submitted on your behalf that your pending deportation is a relevant matter for me to take into account and your counsel referred to the Court of Appeal's decision in Guden,[1] of which passages are set out in Exhibit 1, the defence submissions. You have been in detention now for 388 days, I was told. Is that right, Ms Fallar, it is 388 days? That is not inclusive of the 129 days PSD?
[1]Guden v The Queen [2010] VSCA 196.
28MS FALLAR: That is correct. That is outside, yes.
29HIS HONOUR: So, 388 days you have been in immigration detention at present. You have not applied to the AAT for a merits review of the department's decision and you are now out of time to appeal your visa cancellation. As a result, following these proceedings you will be deported to New Zealand. That causes you some hardship, notwithstanding that you have only been in this country since 2015. Your partner lives here, you have a strong relationship with your uncle who adopted you when you were 14 years old and who lives in Australia, and your contact with your uncle will reduce very significantly when you are deported.
30Aside from that issue of the effects of deportation, I take into account the fact that you have spent 388 days in detention in addition to the 129 days you have served as pre-sentence detention in this matter and I take that into account in a broad and practical way. Parity is also a matter that I must take into account and I referred to the sentence I imposed on Mr Woodford for the matters which are the most serious matters before me.
31In relation to the legislative provision in s5(2A)(c) I find that sub-sections (i) and (ii) are both satisfied in relation to this matter. I am satisfied that your mental disturbances, mental impairment, played a significant role in all of your offending. In my view, as was aired on your plea, it is plausible that you would have a mental impairment defence to the two indictments later in time. Your pleas of guilty has the effect of your accepting criminal responsibility, of course, and I sentence you as such.
32However, the Verdins mitigation,[2] to put it in broad terms, available to you in respect of those indictments reduces your moral culpability so significantly that in different circumstances a gaol term may not necessarily even be within range for those indictments.
[2]R v Verdins 16 VR 269
33The Prosecution took the view on the plea that if you had a mental impairment defence you should run it. During the plea I noted that in the circumstances of your case this approach was not particularly pragmatic. You are in immigration detention and will be there until the conclusion of these matters. The state of trial lists in this State at the time of your sentencing indication, which was 19 May, was such that trial dates for this year could not be guaranteed. Your pleas of guilty are significant in that context. There is a significant utilitarian value to your pleas.
34You have been either in custody or in detention for a period approaching 17 months or thereabouts. Your co-accused, who was the instigator and leader of the enterprise and who had a more significant history than yours, was sentenced to 47 days and a two-year community corrections order. For obvious reasons, a community corrections order or a combination sentence is not available to you.
35Taking into account all the matters that I must, including the need for general deterrence, specific deterrence and community denunciation, as well as parity in relation to Indictment one, together with considering your prospects of rehabilitation which in my view are reasonable if you are able to stick to the mental health plan that is in place and get assistance in refraining from illicit substances, particularly cannabis, your prospects are reasonable. The mitigation in a Verdins sense, both in the extent to which your moral culpability is reduced but also in relation to experience in custody, the length of time in detention, combined with a certain deportation, taking into account all of those matters. I sentence you as follows, Mr Cheung-Pun.
36On indictment J13367632, on Charges 1, 2 and 3 I impose an aggregate sentence of 129 days imprisonment. In relation to Charge 4 on that indictment, your licence is cancelled and disqualified for 18 months.
37On indictment J13184717, the arson charge, I sentence you to 14 days imprisonment to be served concurrently with the sentence imposed on the first indictment.
38On indictment J1318692 I sentence you to two months imprisonment on Charge 1, two months imprisonment on Charge 2, and two months' imprisonment on Charge 3, each to be served concurrently with each other and concurrent on the sentence imposed on Indictments one and two.
39In relation to the Summary Charge 4, you are sentenced to one month of imprisonment to be served concurrently with all other sentences imposed today. In relation to Charge 6, you will be sentenced to seven days imprisonment concurrent with all other sentences imposed today.
40That makes a total effective sentence of 129 days imprisonment and I declare that you have served 129 days as pre-sentence detention in relation to this matter.
41A s 6AAA declaration is very difficult in a case such as this because being found guilty at trial of all of these matters, it is perhaps easier to work out in relation to the first indictment, but indictments 1 and 2, that would mean a mental impairment defence was necessarily rejected, but even if that were to occur that would not mean that mitigation in a sentencing perspective, based on the decision of Verdins, would not still apply, of course. As best I am able to, if all these matters were guilty findings after trial, I would sentence you to a period of a total effective sentence of two and a half years imprisonment with a non-parole period of 18 months.
42Are there any other orders sought?
43MS FALLAR: Not from me. Can I just clarify the 129 days, that's in relation to co-accused Woodford, that is Charges 1, 4 and 8 aggregate? Did I get that right?
44HIS HONOUR: On the Indictment it is 1, 2 and 3.
45MS FALLAR: One, 2 and 3, yes. And that is the base sentence?
46HIS HONOUR: That is the base sentence.
47MS FALLAR: Thank you.
48HIS HONOUR: So 1, 2 and 3 aggregate on that Indictment. The second Indictment which is J13184717 just has one charge.
49MS FALLAR: Yes, thank you.
50HIS HONOUR: Which is 14 days concurrent with all sentences on that. Indictment J1318692 has three charges. There were separate sentences given on each, two months on each charge concurrent with those sentences and other sentences undergoing.
51MS FALLAR: As the court pleases.
52HIS HONOUR: Mr Moodie, does that make sense?
53MR MOODIE: Yes, Your Honour.
54HIS HONOUR: Thank you, we will adjourn the court.
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