Director of Public Prosecutions v Ding
[2015] VCC 1981
•28 August 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00964
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GUANGPU DING |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 August 2015 | |
DATE OF SENTENCE: | 28 August 2015 | |
CASE MAY BE CITED AS: | DPP v Ding | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1981 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge intentionally causing injury – one charge blackmail – pleaded guilty – committed against the one victim – unprovoked attack – cooperated with police – no prior convictions – good prospects of rehabilitation – Community Corrections Order appropriate to reflect serious nature of offending, denunciation of the types of offences and also offender’s prospects of rehabilitation
Cases Cited: DPP v Fucile [2013] VSCA 312
Sentence: 12 month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Wilkinson | OPP |
| For the Accused | Mr R. Stransky | APAC Legal |
HER HONOUR:
1 Guangpu Ding, you have pleaded guilty to a charge of intentionally causing injury, an offence which has a maximum sentence of 10 years’ imprisonment, and to a charge of blackmail, which has a maximum sentence of 15 years’ imprisonment.
2 My sentence is based on the Prosecution Opening read out in court[1], footage filmed of some of the events causing the injury which was shown in court[2], your interview with police, and all the matters referred to me by both counsel in court.
[1] Exhibit A
[2] Exhibit B
3 I will briefly outline how you offended. In the early hours of 8 November 2014, you asked a young man by the name of Xianjin (Tiger) Wu to come to a bar in Bourke Street, Melbourne. You knew Mr Wu because in April 2014, you had met and spoken to him about contacting your girlfriend through a chat site, and he had agreed not to contact her further. That had been resolved, but it seems that because of that previous contact, you became angry with him in November when you heard he was spreading rumours about you.
4 When Mr Wu arrived at the Stars Karaoke Bar, you took him into a stairwell to speak to him. Other young men and women followed, including a friend of yours called Houliang Jia. According to your counsel, all participants had been drinking alcohol. Mr Jia punched Mr Wu, and you and another man, Hengyang Liu, then joined in the assault. You told police you punched Mr Wu 4 or 5 times, including to the face, that the punches were really hard, and that you did this because you were angry with him and you thought he deserved it (Charge 1 – intentionally causing injury).
5 As a result of the assault committed on Mr Wu by all of you, he was bruised and had pain and swelling on his face including around his eye, as well as a cut lip, a heavily bleeding nose, a painful neck, soreness on the back of his head and probably mild concussion. Although you did not personally cause all these injuries yourself, each person involved in the assault is criminally responsible for all the injuries caused by all of you.
6 Later that same night, Mr Jia and Mr Liu made Mr Wu drink a 750ml bottle of cognac, and demanded that he pay the bill for the room which your group was using at Stars Karaoke Bar, in total about $1200. Mr Wu was later humiliated while he was too drunk to do anything about it. You were not involved in any of this, but you learned about it later.
7 Three days later on 14 November, you were at a friend’s house with Mr Jia and Mr Liu. You were the only one with Mr Wu’s phone number. You rang him and put him on speakerphone so that all of you could hear Mr Wu and speak to him. Your counsel submitted that this was not planned but just happened while you were all there together. Mr Jia demanded that Mr Wu pay him money, saying it was to pay the bill for the room at the karaoke bar. The demand was not at all justified, and was made in a threatening way (Charge 2 – blackmail). You were part of this, even if you said nothing, because the blackmail could not have happened without you making the phone call. Again, all of you participating in this threatening demand for money are criminally responsible for all the things said and done in the offence.
8 The facts in this case are serious. There is no excuse for your behaviour in assaulting him, and I find that this is the most serious of your two crimes. You told the police that you were just angry with Mr Wu. I do not know if Mr Wu was spreading rumours about you, but even if he was, that does not give you an excuse to beat him up, as you described it to police.
9 With the blackmail offence, you knew that it was not right for Mr Jia to be threatening Mr Wu and demanding sums of money from him, but using your phone, you made it possible for him to do that on that occasion. Again, there is no excuse for your actions. I do accept that you did not intend to get any money for yourself.
10 Your offending is made more serious by the facts that the crime was committed by you with a number of others, were unprovoked by Mr Wu, caused him a number of injuries, the fact that you arranged for him to come to the bar, and to go into the stairwell where the assault was committed, and the blackmail, although it occurred spontaneously on the day, was committed on the same victim, three days after the assault.
11 I was told in court that Mr Wu did not want to make a statement about the impact of the crimes on him. However, it is clear from the information I have already referred to about his injuries that he did suffer considerably as a result of the crimes. Fortunately, the injuries seem to have not been as serious as they might have been, and I accept that they are towards the lower end of the scale of possible injuries. I have no information about any psychological or emotional impact on him, but at the very least, I take into account that he would have been frightened during the assault on him by a number of people, and worried about the continuing threats and the demands for money, and whether he would be left alone or the abusive behaviour would continue.
12 Balanced against all this, there are some factors that I must take into account in your favour.
13 The first of these is the fact that you have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. Because of your plea, the community has been spared the time and cost of a trial. Mr Wu, and other witnesses, have been spared the ordeal of giving evidence in your trial. I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial. I also take into account in your favour that you stated your intention to plead guilty to these charges at a very early time in the criminal process.
14 Next, when you were interviewed about two months after the offences took place, you clearly admitted your part in the crimes, providing information about your actions even when not specifically asked.
15 Therefore I accept that your plea of guilty indicates remorse for your actions.
16 Next, I take into account in your favour that you have not been in trouble with the police before November 2014. You have been in no further trouble since, which is also in your favour.
17 I have been told something of your personal history and circumstances.[3] You came to Australia from China with your parents and three older sisters 10 years ago, when you were aged about 10. Your father owns a business in China manufacturing and exporting gas fireplaces. The international nature of the business meant that he often travelled overseas, and often for months at a time.
[3] Exhibit 1 – Defence Chronology and Submissions
18 The family originally lived in St Albans where you went to primary school after doing an English language course; after about three years, the family moved to Camberwell and you went to Camberwell High School for all of your secondary schooling. You completed VCE in 2013 but failed the year, and your understanding of the English language is still a problem for you. You were unsure what path you wanted your life to take and what work you would do, and in 2014, you began doing 8 subjects as a Foundation Year for further studies, but passed only 5 subjects. You were unsettled and had no real goals to work towards. You were spending your time going out at all hours and drinking alcohol.
19 Since the offences were committed at the end of last year, while you are still not sure what you want to do, this year you are repeating the 3 subjects you failed to pass, and since June, on Friday nights you also attend a Registered Trade Organisation course in order to see if working in construction appeals to you. Earlier this year, you did some work with a fencing company briefly, but broke your hand after a few days.
20 Your family were shocked to hear about your offending, and after they learned about it, a number of changes were made. First, you did things to try to avoid committing offences again: you stopped drinking alcohol; you stopped going to Stars Karaoke Bar; and you stopped having anything to do with Mr Jia and Mr Liu. You remain in a relationship with the same girlfriend about whom you spoke to Mr Wu in April last year, and when not studying, spend time with her.
21 Next, your family took action to help you avoid committing offences again. They support you in your efforts, and your father re-organised his business so that he is not away from home as often or for long periods. All your family were in court to support you. They are helping you to find a goal in life and choose a trade or occupation.
22 The seriousness of your crimes was probably brought home to you when it looked like your behaviour would prevent the family from billeting overseas students as they have done in the past, because your Working with Children check was rejected on the basis of the initial charges. With the charges you have now pleaded guilty to, your application is being re-considered.
23 At the time of the offences you were 19 years 5 months old, and you are now aged 20 years and 2 months. The law says that your young age means that the sentence I impose on you must reflect that your rehabilitation is the most important factor for me to take into account.
24 As a result of all the factors in your favour – your plea of guilty, your youth, your family support, your lack of prior convictions and your efforts to stay out of trouble – I am satisfied that the chances of your rehabilitation are good. I find that you are unlikely to reoffend. I think you have learned your lesson by your contact with the criminal justice system, and I do not think your family, including your uncle in China who is a police officer, will allow you to forget the important lesson you have learned about how to behave properly and not in a criminal way.
25 However as well as those matters personal to you to which I have referred, I must also take into account what the law calls deterrence. I do not think that your young age affects this principle in this case. Young men can be vulnerable to committing offences of violence, particularly in a group, because of their lack of maturity. Therefore, my sentence must try to have the effect of deterring other young men from committing these sorts of offences. This is known as general deterrence. Because of your age and lack of maturity, although I have found that you are not likely to reoffend, I think that my sentence also has a small part to play in deterring you from re-offending. This is known as specific deterrence.
26 Mr Jia was charged with a number of offences arising out of his behaviour towards Mr Wu but his case is at a much earlier stage than yours in the criminal justice system. Mr Liu has left Australia and has not been charged. As these men have not yet been sentenced by a court, I cannot take their sentences into account in deciding the sentence for you.
27 Your counsel submitted that despite the seriousness of your offending, the appropriate way to deal with your offences was to impose a fine on each charge. If I did not agree with that submission, he submitted that I should release you on a Community Correction Order. He urged me to consider sentencing you without conviction, because of the possibility that a conviction could affect your future employment and travel prospects, including in and for your father’s business.
28 The prosecution submitted that while a Community Correction Order could adequately deal with all the sentencing principles, a fine on either charge would not. It was submitted that the injury charge was the more serious of the two.
29 Yesterday you were assessed to determine your suitability for a Community Correction Order. You were found suitable, and also found to be a low risk of re-offending.
30 I have carefully considered what the appropriate sentence is in your case including consideration of another case which was provided by your counsel[4]. Although each of the offences has a term of imprisonment, the law is that I must not send you to prison unless I am satisfied that it is the only appropriate sentence. In your case, I do have other options, and so I will not be sending you to prison.
[4] Including considering the case provided by defence counsel: DPP v Fucile [2013] VSCA 312
31 I must weigh the factors in your favour against the serious nature of your offending. I have decided that a fine for either offence is not an adequate or appropriate sentence. I consider that a Community Correction Order is required to reflect the serious nature of the offending and the court’s denunciation of offences involving injury and blackmail, but also to recognise your youth and to enhance your prospects of rehabilitation.
32 If you agree, I will release you on a Community Correction Order for 12 months on both charges. That order will have the conditions that are attached to every order which I will now read to you. You must not commit another offence during the period of the order punishable by imprisonment, and that is whether in or out of Victoria. You must comply with any obligation or requirement asked of you by the community corrections officer. You must report to and receive visits from a community corrections officer during the period of the order. Within two days of the order coming into force, you must attend and report to a community corrections centre. The address of that centre will be in the order. If you change your address or obtain a job or change that job, you must notify the community corrections office within two days of those changes. For that 12 months, you cannot leave Victoria without getting permission from the community corrections officer.
33 I will also put other conditions on the order. I will order that during the 12 months: you must perform 150 hours of unpaid community work; you must be under supervision; you must not contact or associate with Houliang Jia; and you must not attend the Stars Karaoke Bar.
34 A recommendation was made for you to undertake treatment and assessment for alcohol abuse and dependency. I have decided not to make that a condition of the order as I accept that you have stopped using alcohol and there is nothing to suggest that you have an alcohol dependency.
35 Despite the seriousness of your offending, I have decided not to impose a conviction on you for either charge because of your youth and to avoid a potential negative impact on your good prospects for rehabilitation. In other words, this is your chance to decide what you want to do with your life, and if that includes working in your father's business, then you will not have a conviction which may prevent you fully participating in an international business.
36 Stand up please, Mr Ding.
37 Do you agree to being released without conviction on a Community Correction Order with the conditions that I have outlined?
38 OFFENDER: I agree.
39 HER HONOUR: Thank you. If you are ill or there are exceptional circumstances, this order may be suspended for a time if your circumstances change such as if you got employment which made it difficult for you to do the unpaid community work, you may apply to the court for a variation or cancellation of the order. In either case, you must notify the community corrections office and I recommend you also get legal advice. If you do not complete a condition of the order, you will be brought back before me to be re-sentenced on the original charges and be dealt with for the breach of the condition. What will happen then will depend on a number of circumstances but you should be aware that my options are limited and one of those limited options is gaol. Do you understand what will happen if you do not complete the order?
40 OFFENDER: Yes.
41 HER HONOUR: Just pardon me a moment. Ms Wilkinson - - -
42 MS WILKINSON: Yes, Your Honour.
43 HER HONOUR: Given the condition that I have placed on the Community Correction Order about not attending Stars Karaoke Bar - - -
44 MS WILKINSON: Yes, Your Honour, I withdraw the application for the exclusion order. Thank you.
45 HER HONOUR: Thank you very much. So returning to my sentencing remarks, the prosecution made application for an exclusion order to be made under Liquor Control Reform Act 1998. As I have made it a condition of the Community Correction Order that you must not attend the Stars Karaoke Bar in the next 12 months, that application has now been withdrawn.
46 Finally, I advise you that if you had not pleaded guilty but had been found guilty after a trial, the sentence I would have imposed would have been a term of imprisonment for two months followed by a Community Correction Order for 18 months.
47 Yes, thank you. Mr Ding, if you and the interpreter come out of the dock and come and stand - or take a seat behind your counsel, we'll prepare the documents that you will need to sign for the order.
48 MR STRANSKY: Your Honour, could I just mention one thing - - -
49 HER HONOUR: Yes, certainly.
50 MR STRANSKY: - - - in relation to the term of the Stars Karaoke, that it should include its address.
51 HER HONOUR: Yes, it does on the order. I haven't placed it in the - - -
52 MR STRANSKY: Thank you, Your Honour. As Your Honour pleases. All right, so Mr Ding, if you can just come and stand at the end of the table there and the document you're about to be shown contains all of the conditions that I have just gone through with you. If you wish to be reminded of those, then you can take that time now. If you agree to be bound by those conditions then we'll ask you to sign where indicated.
53 OFFENDER: Yes, I agree.
54 HER HONOUR: Thank you. All right, we'll have a copy of that made for you before you go. It shows that the Box Hill Community Corrections Centre is where you must go within two days. It may be that an appointment was already made yesterday tentatively. So I will now sign that order and it is now in force, so you are now bound by the conditions of that order for the next 12 months. Do you have any questions? All right, this is your chance. I won't see you again if you get through the order. If you get into trouble again, I will be seeing you.
55 OFFENDER: Thank you, Your Honour.
56 HER HONOUR: Thank you, Mr Ding. Any further orders?
57 MS WILKINSON: No, Your Honour.
58 MR STRANSKY: No, Your Honour.
59 HER HONOUR: All right. Thank you very much. Could I thank once again the interpreters for their assistance, both of them. Thank you, we'll adjourn then until 10.30 Wednesday.
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