Director of Public Prosecutions v Gao
[2023] VCC 1965
•26 October 2023
MG, you
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01466
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MINGDONG GAO |
---
JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 October 2023 | |
DATE OF SENTENCE: | 26 October 2023 | |
CASE MAY BE CITED AS: | DPP v Gao | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1965 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Guilty Plea – Aggravated Burglary – Enter with intent to assault – Rape
Legislation Cited: Crimes Act (Vic) 1958
Cases Cited:DPP v Drake [2019] VSCA 293; Lockyer v The Queen [2020] VSCA 321; Salvaggio v The Queen [2022] VSCA 88
Sentence: Total Effective Sentence 14 years 6 months. Non-parole period 11 years. S6AAA 16 years 6 months with a non-parole period of 13 years
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Albert | Office of Public Prosecutions |
| For the Accused | Mr G. Davis (for plea) Ms C. Azzopardi | Bowler & Co |
HER HONOUR:
1Mingdong Gao, you have pleaded guilty to one charge of making a threat to kill, one charge of aggravated burglary and one charge of rape.
2The victim of all of these charges was YJ. You entered Australia on a 1 year Visa prior to the commencement of the COVID‑19 pandemic. You met YJ, who is a Chinese national with permanent residency in Australia, in April 2020. She and her family had lived here since 1992. She was employed at a bank and had very good English language skills. You first met online and then began to chat over WeChat.
3In May 2020, when restrictions were eased you and YJ met in person for the first time. In August that year she let you move into her home as a boarder. The relationship between you was sexual from time to time, but she soon backed away from such a relationship as you were abusive, controlling and aggressive. She became fearful of you.
4You also asked YJ to help you getting permanent residency. You offered to pay her $50,000 to $60,000 if she married you, so that you could get permanent residency. She refused.
5In early September 2020 YJ told you to move out of her home, and had the locks changed. Despite this clear indication to leave her alone, you sat outside her home in your car. She was afraid and called the police. When the police arrived she told them she did not want action taken, as she would resolve it with you.
6Then commenced a campaign of intimidation and physical violence by you towards YJ. The purpose of this campaign was twofold – you wanted her to call the police off you, in respect to her allegations against you, and you wanted her to assist you in getting permanent residency.
7I note that whilst a number of the acts carried out by you were originally the basis of charges, most are now relied upon by the prosecution as context for the offending to which you have pleaded guilty.
8These background matters include:
(a) Introducing YJ to an associate of yours, Mr Zhu, who was using intimidation towards another woman in an effort to marry her to get permanent residency; and
(b) In February, when you became aware that the police were trying to serve you with a Family Violence Intervention Order and a warrant for sexual violence alleged by YJ, you told YJ to tell the police she did not want them involved. You went to her home, where you told her to call the police for this reason. She pretended to do so. You assaulted her by pulling her hair and kicking her. You told her you would keep coming around if she did not call the police off.
Charge 1
9Charge 1 occurred in that context. On 18 February 2021 you went to YJ's home. You asked if she had called the police. She explained that the police had taken out the Intervention Order, and that she did not have the power to stop them looking for you.
10You punched YJ in the chest and kicked her in both legs causing bruising. YJ attempted to defend herself. You twisted her arms behind her back, holding her hands with one of your hands and putting your other arm around her neck so that she struggled to breathe. In order to get you to stop hurting her, she told you she would sponsor you for citizenship. You said to her 'you better do it. If I run into the law, I’ll kill you and bury you in an isolated area'.
11There were then further incidents of sexual and other violence by you, which again are put by the prosecution as context, not as charged acts:
(a) 5 days after Charge 1 you again went to YJ's home. You sought her help with some fines. You were still under the impression that she was taking steps to marry you. You made sexual overtures to her, which she rebuffed. You said to her 'you are mine, I own you' and tried to take her to the bedroom. She told you no and said her daughter would be home soon. You told her that she was your wife, she had to do more things for you, repeated you owned her and said she had to do more things for you. You then forcefully sexually penetrated her with your penis. YJ was fearful of you, and ashamed. She saw a doctor and considered reporting this incident to the police but decided not to do so.
(b) On 13 March 2021 you again went to YJ's home, where you told her to tell the police to stop looking for you, and pressed her about what she had done regarding your application for permanent residency. You became angry with her, and punched her hard on the right shoulder, causing pain and bruising;
(c) YJ made a statement to the police on 27 March 2021 but did not mention the sexual violence because she was afraid of you;
(d) On 1 April you again went to YJ's home. You asked her for help with a business you wanted to set up and offered to give her a percentage of some money. You threatened her, telling her that you could not guarantee her safety if she did not obey the rules. You then took her to the couch. She was crying and distressed. She told you she would help you with everything and asked you not to hurt her. You penetrated her vagina with your penis, telling her 'You’re mine' and 'I own you.' She asked you to stop, but you did not;
(e) On 5 April you went to her house and again told her to contact the police regarding their efforts to find you. You told her she had to solve the problem, and that she had to compensate you for her wrongdoing. YJ was afraid and told you she would help you with your permanent residency application;
(f) In September 2021 you and Mr Zhu, the man who had also been using intimidation to try to force a woman to marry him so he could get permanent residency, both attended YJ's house. Mr Zhu made YJ delete any communications with him and any information about him.
12As I have stated, the events between Charge 1 and the next charges establish the context of the offending to which you have pleaded guilty. You are not being sentenced for those uncharged acts. That history establishes that the offending in the charges was not isolated and establishes the motivation for the offending to which you have pleaded guilty.
Charges 2 & 3
13On the evening of 5 October 2021, YJ was at home with her daughter. Her daughter was in her room studying, wearing noise cancelling headphones.
14At around 10.30 pm you broke into YJ's home. You took off your shoes and jacket and left those items with your car keys and a bag near the entry point. You had with you a 30-centimetre-long meat cleaver. Your entry, with that weapon, was made with the intention of assaulting YJ, and thus it constitutes Charge 2, aggravated burglary.
15YJ was in the process of getting ready for bed. She realised you were in the house and approached you, in the kitchen. She asked how you had gotten into the house, and you did not reply.
16You asked her if she had lodged the sponsorship allocation in respect to your permanent residency application. She lied and told you that she had. You asked for proof, which she could not provide. She made excuses, which you did not accept. Whilst she pretended to look for a document on her phone you punched her. You grabbed her by the hair and showed her the meat cleaver.
17You pushed her into the bedroom. You directed her to block the doorway with a bedside table, which she did. You still had the meat cleaver with you, and having showed it to YJ, you put it on the bed next to her phone. You again asked about the documents and when she told you she did not have them you kicked her in the back, causing pain and an abrasion. You questioned her about whether she had spoken to the police and why an intervention order had been taken out. She stayed quiet and you became angrier.
18You told her she had to tell the police that her allegations against you had been lies. You said that because she had reported you to the police, she owed you and had to get you permanent residency to make things even. You told her that you did not take 'shit', that no-one played around on you and that you would show her who was in charge. You said if she lied to you, you would show her the consequences.
19You mentioned, in the context of the police matters, a young woman who had been murdered by her boyfriend. You told her that a person could be made to disappear for $5,000 and that the police would not be able to find him. You said something about YJ's family finding her body. She was terrified by your threats.
20You forced YJ to kneel in front of you and continued to question her about your immigration issue. You used her hair to pull her to standing. You painfully twisted her nipples, and then penetrated her vagina with your fingers (Charge 3 penetration 1).
21You told her you would stop if she got you permanent residency. She said she would do so and that she would solve the police issue. You pushed her onto the bed, and she tried to escape. You held her down on the bed, restraining her arms. You removed her pants and had your fully body weight holding her down. She said to you 'do you know this is rape?' You did not reply.
22You had managed to remove your own clothing. YJ was still struggling against you and again said 'do you know this is rape?' You replied 'not in my culture, this is between you and I.'
23You then penetrated her vagina with your penis, without wearing a condom. You ejaculated in her vagina. (Charge 3 penetration 2).
24A short time later you again penetrated her vagina with your finger. In the course of this penetration, you inserted a foreign object which caused her to feel a sharp pain. On later examination this was found to be star anise. YJ asked you to stop and told you that you were hurting her. You persisted with pushing the star anise, and your fingers into her vagina. YJ tried to struggle but any movement caused more pain. (Charge 3 penetration 3)
25You told YJ that what had happened was what she deserved. You put the meat cleaver under the bed and her phone under your pillow and went to sleep. YJ was still very afraid. After you fell asleep, she managed to get her phone and called the police. She made multiple calls to the police, who arrived at around 4.55 am.
26The police found you hiding, naked, in a wardrobe. You were arrested and taken to a police station.
Medical Examination
27YJ was examined by a doctor later that morning. The abrasion caused by your kick was noted on her back, as were bruises on her hip and upper thigh. She reported a sharp pain in her vagina and said that she could not urinate. Examination of her vulva found swelling, bruising and abrasions. Pieces of star anise were removed from her vagina.
Record of Interview
28When interviewed you told the police that you and YJ had married, and you had applied for permanent residency. You said you had been married for more than 6 months. You claimed YJ would get angry and hit you, and said you never hit her. You denied earlier incidents of assaulting YJ. You said that you were there, at her house by invitation the night before, had dinner together and slept in her bed by her invitation. You denied the assaults and rapes, saying you had had consensual sex with her.
29You denied inserting anything into her vagina that caused pain and said you did not know why that was found inside her. You said that after you had been asleep YJ told you the police were there and told you to hide, which you did.
Victim Impact
30The victim has provided a measured victim impact statement that nevertheless tells of her ongoing fear and trauma, and of her loss of confidence and sense of self-worth. Your behaviour has affected her relationships and interactions with her family and friends and impaired her ability to work. She has sought assistance for her mental state and writes that she has been diagnosed with anxiety and depression and post-traumatic stress disorder. She is working to overcome the impact of your offending on her life, but this is hard and will take time.
Personal Circumstances
31You are now 47 years old, having been born in October 1975. You were born in northern China, the youngest of 6 children. Your family were farmers, and your siblings also took up that occupation. All are quite poor.
32Your father passed away when you were 14 years old. At around that time you left school to enter training for a trade. You became a motor mechanic and have done well in that trade. You worked for an employer for some years and in around 2003 or 2004 you set up your own business, which grew to employ around 20 people. You said that this business ran for around 5 years but was never very profitable, so you left it to one of your employees and moved to Russia to find a better income source.
33You spent some years in Russia, again building a motor mechanic business, which went very well. Your mother became unwell, however, and your siblings were unable to provide financial support. You sold the business in Russia, and returned to China where you cared for your mother and used your savings to live and pay for her treatment.
34Not long after your mother passed away you decided to move to Australia, as you had heard that there were good opportunities here for work and making money. You arrived in 2018, initially on a one-year visa. I was told that you financed this move with the remainder of your savings.
35I was told that you had been married in year 2000, and then divorced in 2015. You had one child, who is now at a well-regarded university in China, studying medicine. You have provided financial support for him.
36In Australia you found work as a mechanic. During the pandemic you met the victim, via a website. You say that you did work such as yard work, which the victim found for you. In 2021 you were working in that area and also found work again as a mechanic. You made sufficient income to purchase a car and a Ute. I was told that you have not learned any English.
37The following matters were raised on your behalf:
1. Plea of Guilty
38You were charged on 7 October 2021, the day after your arrest. After several adjournments a committal hearing took place in August 2022. YJ, her daughter, medical witnesses and the informant were cross examined.
39At the initial directions hearing on 14 September 2022 the court was told that there was no prospect of the matter resolving. You applied for bail in March 2023 which was refused. A series of directions hearings occurred over August and September 2023, leading to the trial which was listed to commence on 10 October 2023.
40At that hearing your lawyers had discussions with the prosecution which led to the plea indictment being filed. You were arraigned on 11 October 2023, pleading guilty to the charges for which I will sentence you today.
41Clearly this was a late plea. Your counsel submitted that there had been several changes of solicitors and then counsel, and that it was difficult to get instructions given the need for interpreters and getting enough time to speak with you. I accept that those factors have likely influenced the timing of the resolution, to some extent.
42The timing of the plea is relevant both to the extent of the utilitarian value arising from the resolution of the matter, and to your remorse. In your case the utilitarian value is that a trial did not need to run, freeing the resources of the Court. The victim and other witnesses did not need to give evidence, which saves time, effort and in the case of the victim, speaking at length about what have been traumatic events for her.
43It is not clear to me that your pleas are an indication of remorse, but they do amount to an acceptance of responsibility for your offending.
44I note that on 9 October 2023, the Chief Judge informed the Criminal Bar and profession that the backlog of cases in this court had returned to a level comparable to that which it was before the pandemic. Your trial was listed to commence on 10 October 2023, and you agreed to plead guilty that day.
45I will mitigate your sentences to a degree by reason of the pleas of guilty. Whilst I have regard to the utilitarian benefit of the plea, I do not give that additional weight which was called for whilst the pandemic and its effect on the operations of the court persisted, particularly in view of the lateness of the resolution.
2. Conditions of Custody – Past and Future
46You have been on remand for more than 2 years. I accept that during that time the pandemic affected time out of cell, lockdowns, and the availability of activities. You speak no English which also reduced what you could learn and do whilst in custody.
47Unless you take steps to learn English whilst in custody, the language barrier will continue to impact your experience in a negative way. Furthermore, you appear to have no friends or family here and so will be very isolated. I accept you will regret the fact that your deportation, on either parole or expiry of sentence, is inevitable. Your position is different, however, from a person who has made a life here in Australia. You have no family here, and no real links to the community. You do have family in China.
Prospects of Rehabilitation
48Your history is that of a man with the motivation and ability to succeed in employment, and you have cared for and financially supported both your mother and your son. You had reached the age of 45 without prior convictions.
49On the other hand, the facts set out by the prosecution, which have not been disputed, show a man willing to engage in criminal acts of violence, threats and sexual offending to achieve your end, that being permanent residency in this country. Your offending cannot be seen as a one-off aberration or mistake.
50Your work history, as a mechanic, shows you can be motivated and that you have the capacity to find employment on return to China, although your skills are likely to be rusty and out of date.
51I do consider that you have reasonable prospects of rehabilitation.
Other Sentencing Considerations
Gravity of Offending & Totality
52Charge 1 was committed months before Charges 2 and 3. It was part of a series of acts towards the victim, not all of which are the subject of a charge. The threat was accompanied by other violence, and made to persuade YJ to withdraw allegations she had made to the police. Both of these factors increase the gravity of this offending.
53Charge 2 is a serious instance of an aggravated burglary. First, it was part of a series of acts by you to intimidate YJ into withdrawing her complaints to police and to get you permanent residency. Secondly, you entered at night into the home of a woman intending to assault her. She was already frightened of you, which you must have known, and you were stronger than her. Thirdly, you had a meat cleaver with you, a terrifying weapon.
54Charge 3 is a rolled up charge. The context of that offending was:
(a) These rapes were used by you to terrorise the victim into withdrawing the police complaint and to force her to assist you in getting permanent residency;
(b) You were in the victim's home, where she ought to have been safe;
(c) You made the victim push a table across the doorway, hampering her ability to flee;
(d) You used threatening words, mentioned a woman who had been murdered, and had a meat cleaver with you; and
(e) You hurt her breasts, forced her to kneel, pulled her hair and kicked her.
55Whilst part of your motivation may have been sexual gratification, these rapes were used by you to coerce and exert your power over the victim.
56The second penetration occurred after you had forcibly restrained the victim's arms, and after she had told you what you were doing was rape, twice. In this penetration you did not use a condom, and you ejaculated in the victim's vagina. She was thus exposed both to the risk of pregnancy and disease.
57The third penetration rolled into Charge 3 occurred a short time later. You inserted painful items into her vagina, despite her requests to stop and her telling you this was hurting her.
58Charge 3 is a very serious charge. Rape is an inherently serious offence, with a maximum penalty of 25 years' imprisonment. Having regard to the context, your motivation, and that this charge covers three penetrations, a significant sentence must be imposed.
59Whilst Charges 2 and 3 occurred in close connection, each is a separate offence and represents separate criminality. The aggravated burglary was complete once you were inside the victim's home. I do not sentence you on the basis that when you entered her home you intended to rape YJ. Some degree of cumulation is required between these two charges. Charge 1 occurred months before Charges 2 and 3, and also warrants some cumulation both by reference to the distance in time and the different offending.
60I will impose a sentence on each charge which I consider commensurate with its gravity and having regard to all the matters raised on the plea. I will make moderate orders for cumulation to ensure that the total properly reflects but does not exceed the combined gravity of the offending.
Sentencing Act Provisions
61I must have regard to the principles of general deterrence, specific deterrence, denunciation and just punishment, as well as protection of the community. General deterrence carries significant weight in the sentencing discretion, having regard to the nature of the offences, and your motivation. Although, I have accepted your prospects of rehabilitation are reasonable, nevertheless specific deterrence and protection of the community carry some weight.
62Denunciation and just punishment have significant force in sentencing you. Your conduct was appalling. You persecuted the victim for months and would no doubt have continued to do so if you had not been arrested.
Current Sentencing Practice
63I was referred to a number of cases by the prosecution. The sentences imposed in those cases vary widely. As was conceded in the plea hearing, each was distinguishable. I note the following factors in respect to the sentences to which I was referred which were considered by the Court of Appeal:
(i)In DPP v Drake [2019] VSCA 293 there were some similarities in the facts, although a number of differences also. Whilst sentences of 6 years on the individual charges of rape were not overturned on the Director's appeal, the individual sentences were described by the Court of Appeal as lenient and noted to be a reflection of the trial judge's 'moderate and cumulate' approach to sentencing for multiple charges of rape;[1]
(ii)Salvaggio v The Queen [2022] VSCA 88, was a random stranger aggravated burglary and rape. The sentence of 8 years on the aggravated burglary was described as high, but not out of range. The rape occurred before the standard sentence applied. The Court ordered 2 years of cumulation between those charges, noting the overlapping intention to sexually assault in the aggravated burglary;
(iii)Lockyer v The Queen [2020] VSCA 321 involved individual charges each being a serious rape of a different character to the charge of rape in this case. Whilst the offender pleaded not guilty, he could rely on a number of significant factors in mitigation, particularly 'Bugmy' factors. Sentences of 8 years and 6 months were imposed on both rapes, with cumulation of 6 months, leading to a total sentence on those two charges of 9 years;
(iv)Clarke (a pseudonym) v The Queen [2022] VSCA 89 involved very different factual circumstances so that I do not consider it to be a relevant comparator;
(v)The cases of Landale v R [2022] VSCA 121, and Cao v The Queen [2018] VSCA 98 did not involve the standard sentence and I have had no regard to the sentences imposed for rape in those cases.
[1]DPP v Drake [2019] VSCA 293, [25], [35]
Standard Sentence
64The Crimes Act 1958 sets not only a maximum penalty for the offence of rape, but also the standard sentence, which is 10 years' imprisonment. Whilst I must have regard to both the maximum penalty and to the standard sentence as legislative guideposts, I must also sentence according to the usual process of intuitive synthesis and having regard to all of the relevant factors and principles.
65In coming to the sentence on Charge 3 I have had regard to all of the factors and matters that I have set out earlier. I consider this to be a serious instance of this charge, noting in particular the motivation for the offending, the context, and that this one charge covers three instances of rape, the latter two of which were individually each serious instances of this offence. In all the circumstances the sentence I will impose on Charge 3 is therefore above the standard sentence.
Non-Parole Period
66Section 11A provides that the non-parole period must be at least 60 per cent of the head sentence, unless it is in the interests of justice to impose a shorter term. Whilst your counsel submitted that a longer than usual non-parole period could be imposed, I do not think that is necessary in your case. The head sentence will be such that even a non-parole period which is more than 60 per cent of the head sentence will provide for a number of years of parole.
Sentences
67The sentences are as follows.
68Charge 1 – Making a threat to kill – 2 years' imprisonment.
69Charge 2 – Aggravated burglary - 6 years' imprisonment.
70Charge 3 – Rape – 12 years' imprisonment.
71One year of the sentence on Charge 1 and 1 year 6 months of the sentence on Charge 2 are to be served cumulatively each other and the sentence on Charge 3.
72That leads to a total effective sentence of 14 and a half years.
73I set a non-parole period of 11 years.
74Declare 750 days of pre-sentence detention and I direct that that declaration be entered into the records of the court.
75Pursuant to s6AAA of the Sentencing Act 1991, I state that if you have not pleaded guilty I would have imposed a total sentence of 16 and a half years with a non‑parole period of 13 years.
76I will make the disposal order, which not opposed.
77Mr Albert, is there any orders that I should - - -
78MR ALBERT: I think you have covered it all, Your Honour.
79HER HONOUR: All right. From your point of view was there anything that I have not covered that should have been addressed in terms of the orders?
80MS AZZOPARDI: No, Your Honour, (indistinct).
81HER HONOUR: All right. Do you want me to leave the link open so you can speak to Mr Gao over the link?
82MS AZZOPARDI: If that is okay, Your Honour, just to explain.
83HER HONOUR: All right, because then the interpreter will stay on the link as well. Thank you, this matter is now concluded.
- - -
0
6
0