Director of Public Prosecutions v Cui

[2016] VCC 41

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-01641

DIRECTOR OF PUBLIC PROSECUTIONS

v

JIAN CUI

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 January 2016 (to plead), 28 January 2016 (for further plea and sentence)
DATE OF SENTENCE:	28 January 2016
CASE MAY BE CITED AS:	DPP v Cui
MEDIUM NEUTRAL CITATION:	[2016] VCC 41

REASONS FOR SENTENCE
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Subject:Sentencing; reckless conduct endangering serious injury; threat to kill; possess explosive substance

Catchwords:  Plea of guilty; 52 year old with no relevant prior offences; emotional family dispute; young child endangered; pre-sentence detention salutary and prompted counselling

Legislation Cited: Sentencing Act 1991 ss 6AAA, 18

Cases Cited:       Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342

Sentence:Charge 1: 91 days imprisonment (reckoned served) followed by CCO for 18 months with rehabilitative conditions and 75 hours unpaid community work; Charge 2: 91 days imprisonment (reckoned served); Charge 3: CCO for 12 months (concurrent with CCO imposed in relation to charge one) with an additional 75 hours of unpaid community work. TES: 113 days imprisonment followed by two CCOs of 12 months duration (concurrent) with a total of 150 hours unpaid community work.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nibbs	OPP
For the Accused	Mr S. Johns	Turnbull Lawyers

HER HONOUR: 

1Jian Cui, you have pleaded guilty to one charge of reckless conduct placing a person in danger of serious injury - that was your young daughter; one charge of making a threat to kill Mr Javanovski; and one charge of possessing an explosive substance with intention to endanger life or cause serious injury to property.

2I see the query, Mr Nibbs.  I know it is abbreviated to "make or possess", but it is actually set out as possess in the charge.

3MR NIBBS:  Yes, Your Honour. 

4HER HONOUR:  The maximum penalty for reckless conduct placing a person in danger of serious injury is five years' imprisonment.  For each of the second and third charges, the maximum penalty is ten years' imprisonment.  You will not be receiving anywhere near those maximum penalties, but they are an indication of the relative seriousness with which offences of such nature are regarded by Parliament. 

5You have also admitted a prior offence, but I regard it as of no significance in this case.  It was of an entirely different and relatively minor nature, and occurred more than 20 years ago. 

6The charges all arise out of events in March last year.  The background was disagreement and tension in your family relationships and arrangements.  This had reached a point where you were living apart from your ex-wife and then 17 month old daughter, and you were upset at not being able to spend more time with that child.  You were also upset that your ex-wife was not prepared to meet with you alone without the support of two friends with whom she was staying, Mr Javanovski and his partner, Ms Liu. 

7In 2006 you had married Ying Zhang.  Although you and she had divorced in 2012, you had reconciled, and in November 2013 this baby daughter was born.  However, there had been a further breakdown of the relationship with Ms Zhang and in March 2015 you were living apart.  Indeed when she went on a holiday, you moved into her house and refused to allow her back into it on her return. 

8On 19 March 2015, by agreement, Mr Javanovski brought your young daughter to you for an hour’s visit.  This was after a similar visit two days earlier.  When it was time for the child to be returned to her mother, you refused to let her go, and you demanded that Ms Zhang attend the house to talk with you.  You had shut Mr Javanovski out of the house, but he observed you to hold a kitchen knife to the neck of the young child as you held her, and refused to give her back, and demanded that Ms Zhang attend. 

9Ms Zhang was called and arrived with Ms Liu about 25 minutes later. 
Mr Javanovski was still locked out of the house, but found the back door unlocked, gained entry and opened the front door to enable Ms Zhang and
Ms Liu to enter.  At this stage you were standing in the corridor and again had the knife to the baby's neck.  With Mr Javanovski telling you to put the knife down, you carried the child into the lounge room and sat in a chair, still holding her.  Your conduct in holding a knife to the neck or throat of the child is the basis of Charge 1 of reckless conduct putting her in danger of serious injury.

10Ms Zhang, Ms Liu and Mr Javanovski all entered the house and were telling you to put down the knife.  You kept refusing, and indeed when Mr Javanovski tried to knock it from your hand, you picked it up again from the floor. Then when Mr Javanovski wrestled with you to take the knife from you, you were still holding the baby during that struggle and at some point you were holding her around the neck with your forearm. 

11Eventually Ms Zhang managed to get you to release the baby, and immediately left the house with her.  The child sustained red marks to her neck and was extremely distressed and crying throughout the incident. 

12After Ms Zhang left the house with the child, you picked up the knife again and told Mr Javanovski that you were going to kill him and his family and blow up his house with petrol.  Those circumstances are the basis of Charge 2, of making a threat to kill Mr Javanovski. 

13Mr Javanovski sustained small cuts to his hand whilst trying to wrestle the knife from you.  You apparently sustained cuts to your hand also, but neither of you seems to have suffered any significant injury. 

14The following day, Ms Zhang, Mr Javanovski and Liu attended a police station to report the incident.  Police arranged for statements to be taken and a warrant issued, and applied for an intervention order. 

15The next day, that was Sunday 22 March, police attended the address where this incident had occurred, in order to serve the order, but you were not present.  Police entered through finding the rear sliding door slightly open.  Inside they found two large gas bottles sitting in the kitchen/dining area.  They also found several electrical cords, each with one end frayed, exposing the wires on the floor near some entrance doors to the house.  The rear sliding door had the exposed end attached to the metal latch of the door handle and frame and the cord led into an extension lead and around the back of some couches.  It was not plugged into a power point. 

16Another electrical cord with exposed wires was located at the foot of the front door, leading to a power point.  Again it was not plugged in, but it was on the ground just near the power point and appeared to be ready to be plugged in.  Further, two more electrical cords with exposed wiring were found in the garage, with one at the foot of the door between the downstairs bedroom and garage.  Neither was plugged into a power point, but the second one was directly below a set of power points. 

17You had set up these electrical cords in the house at the entrances to the premises, and although none of the cords was plugged into a power point, they were all in close proximity to one and could readily have been plugged in at any stage.  I am told that you had set them up with the intention that if plugged in, they would cause some degree of electrocution to anyone attempting to enter through the doors to the premises.  You perceived your ex-wife,
Mr Javanovski and his partner as likely to enter. 

18The two gas bottles were sealed at the time they were located by police.  However, it is said that if the valves were opened and gas had been flowing at any stage, in combination with the plugged in electrical cords, there was the potential for an explosion to occur.  This is the basis for Charge 3 of possession of an explosive substance with intent to endanger life or cause serious injury to property.

19Three days later you were located and arrested.  You participated in a recorded interview with police, with the assistance of an interpreter.  In that interview you acknowledged that on the Friday, you were refusing to give the child back after the visit, as you wanted her to be living with you.  You acknowledged that you had a knife and said that you just grabbed it because there were the three of them and you were afraid and you did not want them to come into the house.  You also said that you did not recall holding the knife to the neck of your child, or threatening to kill “Jeff” or his family. 

20In relation to the electric cords, you said you wanted to scare them, which
I assume meant Ms Zhang and Mr Javanovski and Ms Liu.  When asked what would happen if you plugged them in, you said they would be electrocuted, but electrocute you first. 

21During this interview and even allowing for some confusion due to the interpreter not understanding what you were talking about - and by that I am not criticising the interpreter - you seem to have been obsessing about what happened earlier in the week, and also complaining that whenever your wife came, there were three people and she would not come to speak with you alone. 

22The explanation given to me in the hearing of your plea for your offending was that you were highly emotionally distressed, as you wanted your young daughter to be living with you, and also that your behaviour was affected by your use of drugs - cannabis and methylamphetamines - overriding your judgment. 

23Sorry, I am missing a page.  Sorry, I have absolutely left behind one page. 
I apologise for that.

24I must assess the seriousness of your offending, both objectively and having regard to your personal circumstances.  I regard your conduct under Charge 1 as the most serious, even though its lower maximum penalty than those for the other charges, would be regarded as reflecting lower objective seriousness in general.  To be holding a knife as a threat to others, in the vicinity of any person, carries the risk of harm to that person, and to a young child who was vulnerable, dependent on you for protection, and unable to take any protective action for herself, it made the risk of serious injury to her much greater. 

25While I accept that your conduct arose from your emotional distress at not wanting to be separated from her, that emotional distress had the potential to make the situation even worse, because it was likely to remove the usual safeguards of opportunity for calm and sensible thoughts about the risks before acting.  Unfortunately there can be very serious, if not tragic, consequences when a person becomes overwhelmed by emotional distress in the course of highly charged situations, including when a family member is overwhelmed by his or her sense of grievance or hopelessness and is seeking to solve that feeling by depriving their domestic partner of a child.  Thankfully this episode fell well short of that. 

26I accept that it was spontaneous and not planned conduct in the context of emotional distress, but reckless conduct is often that and as I have said, in my view your emotional distress is likely to have made the risk greater. 

27As the child was not taken for medical treatment and there is no other information about the impact on her, apart from her crying at the time and having a red mark on her neck, I take it that she suffered no significant physical injury in the incident, however the potential for injury was huge.  Whether she has any lasting memory of the event is impossible to determine at her current age, and remains to be seen. 

28However genuine distress at separation from your child might have been, it could not have justified using the child as part of an argument or threat against her mother, or other people, and certainly could not justify creating a situation which risked serious harm to the child.  The fact that both you and
Mr Javanovski suffered cuts to your fingers in the struggle over the knife, shows how real the potential was for serious harm to your young child from that knife, especially when the knife was near her neck or throat.  In my view this instance of reckless conduct endangering serious injury, falls into the medium range of seriousness for an offence of this nature. 

29In relation to the charge of threatening to kill Mr Javanovski and his family, the fact that you spoke that threat was serious, and more so in the context that there had just been a struggle over a knife, but it does not seem to have been intended or heard as an imminent threat, and the threat to burn the house with petrol is something very different from use of a knife.  There is no victim impact statement from Mr Javanovski, and I am unable to determine how seriously he took your threat to him and his family.  I do not regard your conduct under this charge as anywhere near as serious as the conduct under Charge 1, notwithstanding that the potential maximum penalty is double that for the charge of reckless conduct endangering the child. 

30So far as Charge 3 is concerned, I find it harder to assess its objective seriousness.  Factors of concern are that it reflects some planning, in that you had stripped bare the wires at the end of four electrical cords and had laid three of them out to place the exposed wires near entry points to the house.  This cannot have been spontaneous or under the same immediate emotional reaction as the conduct the subject of the first two charges, although it is not clear when this conduct actually occurred during the two days that followed that incident.  It reflects a continuing or lingering willingness to act on your grievances against Ms Zhang and her friends. 

31Further, had either electrocution of a person entering the house, or an explosion of gas ignited by electric sparks ever eventuated, that had the potential for very great harm, if not death to any person present, and of course also the potential to cause serious property damage. 

32On the other hand, there was no immediate threat created by the placing of the cords with stripped wires, as none was plugged into power, and the gas cylinders were not only sealed, but in a different room from any of the electrical cords, so use of those cylinders, if ever intended, was still well separated from the actual causing of an explosion. 

33Overall I regard this instance as at a relatively low level of seriousness for an offence of making or possessing an explosive substance with the intention to endanger life or property, but not at the lowest possible level. 

34I am told that you were probably affected by drugs, specifically cannabis and methylamphetamine, at the time of your offending, and that the effect of those drugs, together with being highly emotionally upset, caused or largely contributed to your offending. 

35I am told that for many years you had used cannabis to relieve stress and pain, the pain being from injuries dating back to 1996, and further injuries that led to surgery in 2012.  I am also told that during the year prior to this offending, you used methylamphetamine, also for pain relief.

36Not only is use of such drugs illegal, as I indicated during the hearing,
I have some doubt that using methylamphetamine would have assisted in pain relief as its reported effects are to heighten or enhance sensory perceptions.  It may be that you liked its effects on your mood. Nevertheless, I am told that it was due to pain that you were using these drugs. 

37I am also told that your family has concluded that your offending conduct resulted from your use of methylamphetamine, because they regard that as the only different influence on you, or aspect of your circumstances, from the many preceding years in which they had not observed you to be violent or to use violence in resolving family disputes. 

38There is no actual evidence before me that your use of methylamphetamine, or its effect on you at the time of your offending, contributed to your behaviour.  There is no evidence that use of that drug affected you differently on this occasion than you could have expected from using it previously, as I have been told you had done over approximately a year.  You voluntarily used that drug.  The generalisation of descriptions as to when you started using drugs, and of your overall behaviour, are much too
non-specific to support a finding that you acted differently on this occasion, in an unexpected way, and that that was a consequence of the use of that drug. 

39I accept that you were in a highly emotional state at the time because of the general family situation, heightened at that point where after a visit, it was time for the child to be returned to her mother.  Even if your thinking was blurred or your sense of grievance against your ex-wife heightened by your use of drugs, that could be no excuse for what occurred. I do not regard such drug use as lessening your blameworthiness.  It may have heightened your lack of judgment or self-control, which may put your behaviour into context and is relevant to your rehabilitation, but in my view it is not mitigatory.  That means it does not call for lenience in your sentence.

40In the circumstances, I regard the main sentencing purpose in this case to be general deterrence and just punishment, and to a lesser extent, specific deterrence. 

41To explain those legal terms, general deterrence means that the sentences
I impose should send the message to anyone else who might consider committing similar offences, that such offences are likely to attract serious punishment.  Specific deterrence means giving you specifically the same message.  Just punishment does not need explanation.  I shall return to these purposes and how I propose to achieve them, when I have discussed further relevant matters.

42After being interviewed by police, you were remanded in custody until the next day.  On that day you applied for bail, but it was refused by His Honour, the Chief Magistrate, and as a result, you spent 113 days in custody until a further bail application on 4 August 2015 succeeded. 

43In the meantime there had been negotiation in respect of the charges, the first two of which you were prepared to admit immediately or very early, and the third of which took some time to draft, but I am told and accept that from the time you were charged, it was clear that you were intending to plead guilty to suitably framed charges. 

44You eventually indicated a plea of guilty before the committal hearing commenced, and without any witnesses being required to give evidence.  You are entitled to considerable leniency for your plea of guilty, especially as it was indicated at such an early stage.  You saved the community the time and cost of disputed hearings, and in particular saved the need for witnesses, and especially the mother of your child, as well as Mr Javanovski, to give evidence and have to re-live what was obviously a stressful event.

45I accept your plea of guilty as an acceptance of responsibility by you and also in the circumstances, as reflecting some remorse.  I accept that you have expressed remorse about your behaviour to various family members and friends.  After I tell you your sentences, I shall tell you what they would have been if you had not pleaded guilty. 

46I turn now to your personal circumstances.  You are now aged 52, although

I understand, according to Chinese reckoning, you count your age as 53.  You were born in Shanghai, China, where you completed both primary and secondary school.  You apparently enjoyed a good relationship with your parents, as well as with your older brother and sister, who still both live in China.  You left school aged 18 and after that, started your own business selling clothing, which you did for about three years.  You married in your early-20s and your first daughter was born in Shanghai. 

47At age 26 you came to Australia, temporarily leaving behind your wife and child, but you were able to bring them here about two to three years later.  A second daughter was born after your wife joined you in Australia, but I am told that that marriage relationship had suffered through the separation when you moved to Australia, and ultimately that marriage ended in divorce in 1997. 

48After arriving in Australia, you worked in a plastics factory, but in 1996, suffered injury at work.  You injured your hand and lost two fingers in a workplace accident, and I am told that you also suffered a back injury.  You have not worked since 1996 and you have for many years been on what is now a disability support pension.

49Although your first marriage ended in 1997, I am told that you maintained your relationship with your two elder daughters.  They were in court to support you during the plea hearing, and I have read a reference from one of them. In that reference, she says that when they (I assume she means herself and her mother) first came to Australia, you worked two jobs to support the family and yet you would still take the time to help her with school work.  She says that after her mother and you divorced, you would cook dinner at least once a week and make sure she and her sister had lunch the next day.  I take that to mean that they stayed overnight with you at least once a week, but it is possible that you were still living with the family under the same roof after the divorce. 

50She also says that you have never been someone to lose your temper, or to use violence to resolve any conflicts.  She says she can vouch for your good character and says you are kind hearted, loyal and have always placed others before yourself.  She says that she regards these charges as a completely uncharacteristic aberration in your conduct and one which she believes you sincerely regret.  She describes you as having cried on several occasions since the offences, and says you miss your family deeply.  She also sets out details of your health problems.

51I am told that you met your second wife Ying Zhang in 2006 while visiting China and she came to Australia in 2008.  You were divorced from Ms Zhang in 2012, but I accept that you must have reconciled after that and your third daughter, who was the subject of Charge 1, was born in November 2013. I have not been told when the relationship broke down again before this incident, nor for how long before Ms Zhang went on holiday to Queensland prior to this incident, you had not been living in the same house with her or your youngest child.

52You apparently suffer from a number of medical problems.  In addition to the injuries to your hand and your back suffered at work in 1996, you suffered a further significant physical injury for which you underwent surgery on your neck - that is, your cervical spine, in July 2012.  Following that surgery, you were left with ongoing pain for which you were initially prescribed strong painkilling medication and following which your general practitioner continued to prescribe medication. 

53In addition, you apparently had some heart problem, although a post-surgery hospital report says that your heart function improved after your neck surgery.  You also suffer diabetes for which you take prescribed medication.  You also take medication for high cholesterol. 

54I am going to pause.  I know it is someone different who - the walking in front of the dock when I am sentencing is very distracting, so I will ask if other people who enter the court can be signalled to sit on that side please.

55I have said you also suffer from diabetes for which you take prescribed medication.  You also take medication for high cholesterol.  Medical documentation from your general practitioner indicates that you also suffer some foot problems for which you undergo regular assessment.  Your family members express concern about the impact of any further imprisonment on your health.

56I have read character references from Ms Zhang and two longstanding friends of yours, as well as the one I have already mentioned from your daughter.  Your friends speak of you being kind hearted and a person of integrity and that this episode was due to your taking drugs.  Unfortunately, both of those references represent the situation as a minor incident, or disagreement between a couple, and say that it destroyed an otherwise happy family through your being placed in prison.  Neither of those friends appears to have known that you were living apart from Ms Zhang at the time of the offending, or indeed that you had been previously divorced.  They were seeking to present a more rosy picture to the court than is the truth - what your counsel called, “guilding the lily”. I accept that they wished to assist you, but such obviously misleading statements have led me to place much less weight on other comments about your character than I might have done if their reliability were not in question. 

57In part similarly, the letter from Ms Zhang, where it refers to your young daughter needing your love and needing both of her parents and that being a reason not to return you to prison, I have regarded with some caution. That is because you are being sentenced for an incident in which you used your young daughter as an emotional tool to force Ms Zhang to come to talk to you, and you placed your daughter at risk of serious injury by using a knife as part of that threat.

58There is clearly a more complex family situation than has been explained to me, reflected in your living separately before the incident and since your release on bail.  However, I must not and have not drawn any conclusion from that.

59There are further matters that I have taken into account in mitigation of your sentence.

60First, as I said at the outset, the one prior offence on your criminal record is of no significance in this case.  At the age of 52 or 53, having spent more than 25 years in Australia, you are entitled to have your lack of prior relevant criminal history taken into account in your favour.  The law regards a lack of criminal history as reflecting that you have been of good character and at your age, that means for a very considerable time. In this case, that is qualified a little, as I have been told that for many years you have used cannabis, which of course is illegal, and in the year prior to the offending, you also used methylamphetamine.  Although you have never been charged for use of illegal drugs, such conduct indicates that you were not entirely law abiding.

61Nevertheless, I note from the personal references, although I have said I am giving them less weight, and also from your criminal record, that you have no history of violence and given the length of time you have been in Australia, I would expect entrenched violence in your behaviour to have come to police notice if there had been any such conduct of significance.

62The 113 days you spent in prison on remand is relevant in several ways.  That was your first time ever in custody, and I am told and accept that you found it very hard and upsetting, especially at your age and with your health problems.  That made it a very salutory experience for you, a stern warning of what to expect if you offend again in the future.  It is clear from the personal references and what you told Dr Cunningham who examined you whilst you were in custody that you had taken that experience very seriously.  I am satisfied that that time in custody has already acted as significant specific deterrence - that is, it has impressed on you that you want to avoid offending again in future as it might result in your going to gaol again.

63Also relevant is that for a little over a month of that time in custody, the experience was made even harder for you as you spent it in lockdown conditions, as a result of the disturbance that had occurred while you were at the MRC. I am told you were transferred to Port Phillip Prison on 2 July, but kept in lockdown until granted bail on 4 August. I take into account that this period in custody should be treated as the equivalent of longer, and I take it to be the equivalent of at least double that time that you were in lockdown. That is, although strictly I can only declare as reckoned served under s.18 of the Sentencing Act, the actual number of days spent in pre-sentence detention.

64I accept that your time in custody also led you to realise that you had some problems and needed to address them.  You agreed to cease your abuse of illegal drugs.  Your time in custody also led you to recognise that you had not been dealing appropriately with the family dispute that you were experiencing.

65Since being released on bail, you have undertaken counselling with Jing Sui of Link Health and Community.  I have read a report from your counsellor and accept that this counselling has been particularly suitable through language and cultural appropriateness for you.  You are said to have engaged well and the counselling is reported as having been beneficial for you.  I accept that that counselling has been helpful to address your ability to deal appropriately with your ex-wife, to understand and face these legal proceedings, to deal with what is called your grief at loss of access to your child, and that all of that should not only be of benefit to you, but reflects that you have accepted that you needed to change some behaviours that had contributed to your offending.  It therefore should assist to prevent such behaviour from occurring again.  It would be helpful if further such culturally specific counselling could continue.

66I am told that you have not resumed any illegal drug use whilst on bail and that you recognise that if you resume such drug use, you might risk offending in a similar manner again.  To refrain from using such drugs again is clearly an important aspect of your rehabilitation. 

67You have the support of your elder daughters, and apparently also of Ms Zhang, although you are still not living together, notwithstanding that she says you have reconciled.  That may be because the issue of whether there is to be any control or supervision over your contact with your youngest daughter, who is now aged 26 or 27 months, has not yet been determined. I am told that those issues are progressing and there was a parenting plan made by consent through the Family Court.  You currently have supervised access with your youngest daughter.  The future of that access and whether it is to be unsupervised is not an issue for me to decide. 

68I have read a psychological report by Dr Aaron Cunningham who assessed while you were in custody last July.  His report seems to have been for the purposes of the bail application. His assessment was that you were not then presenting with features of any mental illness at the time, and although you reported waking frequently throughout the night, due to chronic pain, you reported no incidents of depressed mood or anxiety.  That report contains some inconsistencies about your circumstances, but I do not take them into account as it is unclear to me whether that assessment was done with an interpreter present.

69I have read and taken into account the overall report, but it is not relied upon by your counsel in specific support of any mitigatory principle. 

70As already explained, I consider that the nearly four month experience of prison that you had while on remand for these charges, including as it did, one month spent in much more restrictive than usual conditions, which should be regarded as counting for more, has already been of significant specific deterrence.  It also prompted some strong steps in your rehabilitation, as it caused you to recognise the need to cease abusing non-prescribed drugs and to accept counselling to help you to deal better with problems in future, especially in your family relationships and regarding access to your daughter.  Hopefully that progress can continue, and if it does, that is not only in your own best interests, but also the community's. You have no relevant prior criminal record and at age 52, with the support of daughters and friends, your prospects of rehabilitation are in my view good, and would not be assisted by further time in custody and may be derailed by it.

71Taking into account all of these matters with your early pleas of guilty and acceptance of responsibility for your offending, and the Court of Appeal's guideline decision in Boulton's case categorising the effect of a Community Corrections Order as capable of achieving considerable general deterrent effect, and of considerable weight as punishment, I have decided that all sentencing requirements can be achieved without requiring you to spend further time in custody. I will be imposing an extended period of a Community Corrections Order to achieve the sentencing purposes. 

72Would you stand up now please.

73Jian Cui, on each of the three charges, you are convicted and sentenced as follows. 

74On Charge 1, of reckless conduct endangering your youngest daughter, I impose a term of imprisonment of 91 days, that is three months, but I am specifying it as 91 days.  That is to be followed by a Community Corrections Order to last 18 months. The conditions of that Community Corrections Order are that you perform 75 hours of unpaid community work.  Submit to supervision, attend for drug assessment and treatment as directed, attend for medical treatment as directed and attend any programs to which you are directed for offending behaviour moderation.  In addition, the usual terms of a community corrections order apply and I will summarise those to you shortly.

75On Charge 2, of making a threat to kill Mr Javanovski, you are sentenced to 91 days imprisonment. 

76On Charge 3, of making or possessing an explosive substance with intent to cause injury to persons or property, you are to be placed on a Community Corrections Order to last 12 months, with conditions of 75 hours of unpaid community work, supervision, that you attend for assessment and treatment as directed for drug abuse and also attend as directed for any medical treatment or any programs to address offending behaviour.

77I direct that 22 days of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.  I direct that the Community Corrections Order imposed on Charge 3 be served concurrently with the Community Corrections Order imposed on Charge 1, except that the amount of unpaid community work is to be cumulative.

78Overall, that results in a total effective sentence of 113 days imprisonment, to be followed by two Community Correction Orders, the longest lasting 18 months and between them, having the conditions of supervision, assessment for drug abuse, medical treatment and offending behaviour, and between them a total of 150 hours of unpaid community work.

79Now I need to explain the usual terms of each Community Corrections Order.  You must report to the nearest Community Corrections Office to where you will be living within two working days of today.  That means by 4 pm next Monday 1 February.  I need to obtain through Mr Johns the address at which you will be living, so that that can be put into the order in the nearest office found.

80MR JOHNS:  Yes, it's 7.

81HER HONOUR:  Yes.

82MR JOHNS:  Laurina, L-a-u-r-i-n-a Turn, T-u-r-n Mill Park, as mentioned in the assessment - the Mill Park address has Greensborough as the supervising office and he has the card and the appointment time already for that.

83HER HONOUR:  Thank you for that.  My associate can be putting the address into the system.  You have to report at that Greensborough office of Community Corrections by 4 pm next Monday.  During the 18 months, the longer of the Community Correction Orders, you have to report to Community Corrections officers any change of address of where you are living, or where you work, if you obtained work, within two clear working days of any change of address occurring. You have to submit to visits from, and obey all lawful directions of Community Corrections officers.  You must not leave Victoria without prior permission of Community Corrections officers, and you must not commit any other offences during the time the order is operating.  I must point out, that includes use of methylamphetamine and with a slight exception, for a small amount, use of cannabis also and of course, any other offences such as the type of conduct that brought you before me here.  Mr Cui, do you understand the terms and conditions of the orders I am making?

84OFFENDER:  (Indistinct words).

85HER HONOUR:  Do you agree to comply with them?

86OFFENDER:  Yep.

87HER HONOUR:  All right, I declare 113 days of pre-sentence detention as reckoned served and direct that that be recorded in court records.  The practical effect of that is I have imposed the amount of time you did serve in custody, but it is declared reckoned served, so you do not have to serve any further time in prison under the sentences I am imposing.

88However, I must explain to you that if you breach the Community Corrections Orders, either by not complying with the conditions or by any further offending, there can be proceedings brought by Community Corrections officers called contravention proceedings, that would result in your being brought back before this court. Any contravention of a Community Corrections Order is itself a separate offence, but most importantly, depending on all the circumstances of what any contravention was, and what your personal circumstances were at the time, the court would have the power to either confirm the Community Corrections Order, to change its terms which could make it longer or increase the conditions, or could cancel the Community Corrections Order and resentence you in respect of the offence for which it was imposed, taking into account how much of the sentence you had already completed.  Do you understand those consequences?

89OFFENDER:  Yep, thank you.

90HER HONOUR:  Yes, all right.  Now in addition, I make the order that was sought for a forensic sample.  That means that there will be a sample taken from you to allow your DNA to be placed on the State's database.  I limit that to what they call the scraping from the mouth, but that means just really a swab rubbed on the inside of your mouth.  It does not hurt and it is not too intrusive.  But I must warn you that if you resist the taking of that, police are authorised to use reasonable force to take it.

91You will be given a copy of an order that tells you - actually I will just pause.  Is the actual nearest police station going to be entered or - - -

92MR NIBBS:  It's being entered now, Your Honour, it's Mill Park.

93HER HONOUR:  All right.  When you get the copy of the order, it will say whatever the nearest police station is to report to and when to report to have that sample taken.  Basically, you wait a month and then you have got a month to go and have it taken.  As I say, unless you resist, it is not too intrusive a procedure.

94The reasons I make that order are the seriousness of the circumstances of the offending and also it was unopposed. 

95I also make the disposal order that was sought.

96I state for the purposes of s.6AAA of the Sentencing Act, that if you had not pleaded guilty, but been found guilty of the same charges after a trial, and if all other circumstances had been the same, I would have imposed terms of imprisonment on each of the three charges. I would have imposed 15 months on Charge 1, eight months on Charge 2, six months on Charge 3, and with some cumulation, a total effective sentence of 18 months imprisonment, with a non-parole period of 12 months. Now that means, with pre-sentence detention, you would have had to serve a minimum of a little more than eight more months in prison before being eligible for parole. Now take a seat Mr Cui while I ‑ ‑ ‑

97OFFENDER:  Thank you, Your Honour.

98HER HONOUR:  ‑ ‑ ‑ have the orders prepared and check with both sides counsel that I have covered everything.

99MR NIBBS:  You have, Your Honour.

100MR JOHNS:  Yes, Your Honour.

101HER HONOUR:  I have signed the orders for disposal of the four electrical cords.  Thank you.  There are strictly two Community Correction Orders, so both have to be checked and signed ‑ ‑ ‑

102MR NIBBS:  Correct.

103MR JOHNS:  Yes.

104HER HONOUR:  ‑ ‑ ‑ if satisfactory.  My associate has added a notation in each as to what - that they are concurrent, but that the ‑ ‑ ‑

105MR NIBBS:  Hours of community ‑ ‑ ‑

106HER HONOUR:  ‑ ‑ ‑ hours are additional to each other and to cross refer those.

107MR NIBBS:  I know, but it's easier if we read one each.

108HER HONOUR:  All right, I have also signed the forensic sample orders.  If those community correction orders are all right, I will have my associate take them and through the interpreter, have Mr Cui read them and sign.  Mr Cui, there are two Community Corrections Orders one for Charge 1, one for Charge 3.  Your lawyer has checked them, but it is best that you also check them. 

109I will just explain to counsel, there is a tension as to how to deal with more than one Community Correction Order and rather than do - because there are three separate charges on the indictment and the third one was on a different day from the first, I wanted to reflect the relative sentences on them.  So that if they are looked at separately, it is not part of an aggregate - I know it is clumsy, but that is the best way I could do it.

110MR JOHNS:  No, I understand, Your Honour.  It is easier to digest than - for that reason, than a combined one.

111MR NIBBS:  And it shows a clear rationale.

112HER HONOUR:  There is no easy way to do it and I considered several alternative constructions.  It is clumsy, but it is one way of showing the different sentences clearly.  Thank you.  All right, I have signed the two Community Corrections Orders.  Copies will be made and one provided to each side of course.

113MR JOHNS:  Thank you very much.

114HER HONOUR:  Mr Cui, you are now free to leave.  You will have copies of the orders.  Your lawyer will now explain them and I will just repeat.  If you do not comply with the orders, you will be back in front of me, but hopefully that does not occur and you will comply with them.

115MR JOHNS:  Thank you, Your Honour.

116HER HONOUR:  It is best if you do not understand what you should be doing, to ask questions of the Community Corrections officers and check with them and do not just stop going, or do not just disregard them.  All right.

117MR JOHNS:  Thank you, Your Honour.

118HER HONOUR:  You are free to stand down.

119MR JOHNS:  Can I be excused?

120HER HONOUR:  Yes.

121MR JOHNS:  Thank you, Your Honour. 

122HER HONOUR:  I am just going to - I will leave the Bench just for a few minutes, while one set decamps and the next people make themselves comfortable or move in again to the Bar table.

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