Director of Public Prosecutions v Cui

[2015] VCC 1803

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-02230

DIRECTOR OF PUBLIC PROSECUTIONS

v

CONG CONG CUI

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 November 2015
CASE MAY BE CITED AS:	DPP v Cui
MEDIUM NEUTRAL CITATION:	[2015] VCC 1803

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Nahrain Warda
For the Offender	Ms S.T. Ling

HIS HONOUR: 

1Cong Cong Cui, you have been found guilty by a jury, after a four day trial, of one charge of rape and one charge of indecent assault.

2You are 32 years of age.

3The crime of rape carries a maximum penalty of 25 years and indecent assault ten years.  Because the two offences occurred within such close proximity, I intend to give you total concurrency.

4You have no prior convictions and there has been a delay of two years for the matter being brought on for trial, which cannot be said to be totally attributable to you.  Accordingly, I take that delay very much into consideration.  Importantly, during that period of two years whilst you have been on bail, you have not re-offended and accordingly have no matters outstanding. 

5You are a permanent resident of Australia, but because of the sentence that I am to impose, there is a high degree of probability that you will be deported pursuant to the recent amendments to the Immigration Act.  I take that into account, in that you will undergo your sentence under the belief that you will be deported and that you will believe that the future that you may have had in this country will be no longer existent upon your ultimate release.

6I also am very concerned in this matter, having read the references that have been tendered on your behalf, as to the situation with your father.  However, that is a matter which whilst I can certainly take into account and do, that that will weigh heavily upon you. 

7The offending occurred in May 2013.  In early May, and the Crown opening is on court file so there is no need for me to go into a lot of detail.  In early May 2013, you engaged in online communications with the complainant. 

8On 8 May she was asked by you to go out to drinks with you.  Initially you said that it would be just you, but then you said you would bring a friend along and that the friend could drive.  Arrangements were made to meet her and later that night, at approximately 9 pm, you and the friend, who has subsequently absconded, attended and met the victim outside her apartment building in the city.

9You all went back to the car and drove in the direction of St Kilda.  You all attended Zagame's Restaurant in Dandenong Road, Caulfield, in the main bar area.  You and Mr Yu, who has absconded, purchased drinks.  I have seen on the CCTV where the victim did not go near the bar, the drinks had all been purchased by you two.  She thought that she was having simple vodka and lemonade and that you two were drinking beer.  In fact what was occurring, I am satisfied is beyond reasonable doubt, is that the two of you were buying her drinks of double strength and accordingly I have no doubt that had a very significant effect upon her. 

10Whilst the evidence was not in front of the jury, she said in her statement that she was a very light drinker and could become intoxicated quite easily.  In any event, the circumstances were that you stayed at Zagame's until asked to leave by a staff member.  He took the view that the victim was showing "early signs of intoxication."  I have no doubt that she was very drunk indeed.  She was unsteady on her feet.  I have seen CCTV footage of her endeavouring to leave and staggering.

11In any event, the vehicle then drove her to the Jasper Hotel in Elizabeth Street, Melbourne, and I have seen CCTV of what occurred in the foyer there.  You convinced the hotel manager to allow the three of you to book a room for the night.  On my understanding you went outside and from an ATM obtained the money and paid for the room. 

12It is clear that the complainant was heavily intoxicated and the evidence of the person behind the counter supports that.  He then saw her being "carried," I think was the word he used, up towards the room.  It was subsequently discovered that there was vomit in the lift, in the room that you went to, it was 406 as I recall, and in the hallway outside.

13You, or certainly Mr Yu took a video of the lead-up to what occurred then.  She is clearly, in my view, intoxicated and you, yourself, when talking on that video say that she is drunk and that she disgusts you.  At one stage you go over to where she is lying on the bed and pull her head back using her hair.  It is quite disturbing footage to watch.  I do not allow that to enflame me, but I just get the impression that certainly by that stage, and I do not make any finding that the alcohol and the like was designed to achieve this, certainly by that stage you had clearly made up your mind what you were going to do.

14In any event, she was intoxicated and fell asleep and she passed out on the bed fully clothed.  She awoke to find herself naked, or partially naked, and you on top of her and kissing her breasts.  She said that you kissed down towards her vagina but could not say that you actually did and accordingly the charge for that was taken away on a "no case" submission.  You tried to kiss her face and she tried to push you away but she was not strong enough.  She passed out again and awoke to find you forcing her legs apart and inserting your penis into her vagina.  She told you stop and tried within her own capacity to fight you off, but she was still drunk and struggling to stay awake.  She was still in the situation of passing in and out of consciousness.

15She fell asleep again on the culmination of this and later awoke, as I find beyond reasonable doubt, though this does not aggravate your circumstances, Mr Yu lying naked in bed next to her and he also endeavoured to penetrate her.  I note that at the time that that was occurring, it would appear that you were asleep on the floor and accordingly I in no way, shape or form, hold you responsible for that.  The circumstances are however that the two of you took her there. 

16Whilst I could not be satisfied that Mr Yu was present when you were raping her, it is the situation where she was extremely drunk, very vulnerable and was there, I accept, at the instigation of the two of you.  I note from the CCTV footage, and clearly they are just images, that the physical contact with her prior to going into that room would appear to have been by and large that of Mr Yu and not you.  In any event, after the incident with Mr Yu, she felt well enough to determine to go home and he told her that they could walk but ultimately drove her.  She then spoke to a flat mate, who had only been there a few days, and ultimately reported the matter to the police.

17I accept what your counsel said that there were no weapons used.  There was not gross force used, but on the other hand of course this is a totally vulnerable young woman, totally unable to defend herself.  It would be clear that not a lot of force would have been necessary to achieve your desires.

18In a situation such as this, a plea of guilty is a very important mitigating factor.  You do not have the benefit of any such plea.  It is important when looking at the discounts that one does get for a plea of guilty that there is the ulitarian benefit as well as saving the complainant the ordeal, and I have no doubt that it was for her, of a trial and having to give evidence and be cross-examined.  Obviously those matters do not aggravate your situation but makes clear the mitigatory matters that give rise to a sentence after a plea of guilty.

19The offending has to be regarded as serious and clearly calls for the application of general deterrence. 

20There has been no indication of remorse in a true sense from you.  There is reports that you feel ashamed by it all, but there does not appear to be circumstances where you are accepting responsibility for what happened to that young girl.  Having said that though, I think the odds of you doing this again are pretty remote.  Accordingly, whilst there has to be an element of specific deterrence, it is of not great significance.

21In a situation such as this obviously denunciation must play a part and there must be just punishment.  The only punishment that could be applicable in this scenario and any no one demurred from this proposition is a significant sentence of active imprisonment.

22Tendered is a victim impact statement from the complainant.  You had, as I understand it, only known her over the internet for that short period that time.  Upon her returning home to Taiwan, she has clearly had a very, very difficult time psychologically.  Over and above that, she has had the feeling that she was, as I understand it, an only child and that she felt unable to tell her family what had happened to her because they would be unable to accept it. 

23Clearly for an extended period of time she was very emotionally distressed and unable to tell them.  She said it was hard to lie to her parents about it, but understand ultimately she told her mother.  She said, "I was ruined emotionally and mentally because of it."  She then describes insomnia, mood swings, teariness and frustration towards other people.  She said that she felt isolated and has had difficulty with work. 

24They are the consequences of actions such as yours and hers is described very eloquently in that victim impact statement.  It is for those consequences that punishment is imposed for offending such as this have to be serious and significant.

25I then looked at the matters person to you.  Before me is a report from
Mr Bernard Healey, a psychologist, and also references from people who know you. 

26As I have indicated, you are in a situation where you will most probably be deported, and I take into account the fear of that as it affects you.  I take into account that you will undergo your sentence, undoubtedly once I sentence you, in protection and that can often lead to situations where you do not have access to programs and the like.

27The references indicate that you are a person with a very good work ethic and have worked diligently since you came to Australia some eight or nine years ago.  You were educated in China getting to university level and you started a course here but did not complete it.  You have permanent residency.

28Your family history was outlined in the report of Mr Healey and also in the helpful submissions filed by your counsel.  The situation is that you were born in China.  You are an only child and your mother passed away just a few months before this offending occurred.  Whether that had anything to do with, I really do not know. 

29Your father has retired and on what I am told and accept is in the terminal stages of cancer.  It is a matter of real significance to you that you will not be able to go home and care for him and I accept that.  Certainly as I understand what has been put in front of me, he is not aware of the dilemma that you are in in this country and whether he is to be told or not, I have no idea.

30As I have said, you were educated in China to second year university standard and you left to gain expertise and experience outside China when you were 22.  You received permanent residency in Australia in 2008 and were at that stage doing a diploma.  You have worked a six day week for the last four years in Foodworks in Queen Street and got to the level of manager.  You have a girlfriend who has been and remains supportive of you. 

31You profess to have religious beliefs, being a Buddhist.  You do have activities that you have participated in.  I accept on the material before me that to actually offend in this way is out of character for you.  I simply point out that very rarely do judges get the chance to see the offender shortly prior to the offending.  Your attitude towards her is not exactly laudatory.

32You have now been in custody since 24 October.  I accept that you have suffered a great deal of shame from what happened within the local Chinese community.  There is no Verdins principles involved here, but you are clearly depressed.  I am told and accept that you are being treated for high blood pressure in prison.  You, as Mr Healey points out in his report, will be devastated that it is unlikely that you will see your father prior to his death. 

33You were tested for intelligence and you are of above average intellectual capacity.  You do not use drugs, despite what has occurred here and I do not accept that you were in any way, shape, or form drunk to the point where you did not know what you were doing, or that your judgment was impaired.  You do not have a drinking problem, I am told. 

34Accordingly, in all those circumstances, the prospects for your rehabilitation should be good and I would have thought the risk of you re-offending would be very limited.

35A number of cases were referred to by counsel.  It is always a difficult task trying to find comparative cases.  As I indicated yesterday I would have thought the median for a plea of guilty for such an offence would have been around about a four to five mark in all these circumstances, but of course you do not have the benefit of a plea of guilty and the associated mitigating factors.

36Because of your previous good character, because of the fact that you have no matters pending and because you are intelligent and your rehabilitation and work ethic should see you through, I have decided to give you a little less than I might otherwise of done of a period that you must serve before you are eligible for parole.  However, the fact of the matter remains that it is ugly offending and there has to be a serious sentence for it.

37Accordingly, on the charge of rape, you are sentenced to be imprisoned for a period of six years. 

38On the charge of indecent assault, six months.

39I direct that they are to be concurrent.

40I direct that you serve a minimum term of three and a half years before becoming eligible for parole.

41I direct that 33 days be reckoned as having been served under this sentence.

42There were no other orders, were there?

43MS WARDA:  No, Your Honour.

44HIS HONOUR:  Sex offenders registration was not asked for and the blood sample was retained?

45MS WARDA:  Yes, Your Honour.

46HIS HONOUR:  All right.  Yes.  You can take him away now, thanks.

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