Director of Public Prosecutions v Gui
[2023] VCC 775
•17 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01229
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZHENGUANG GUI |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2023, 3 May 2023 | |
DATE OF SENTENCE: | 17 May 2023 | |
CASE MAY BE CITED AS: | DPP v Gui | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 775 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Intentionally cause injury, Sentence Indication,
Cases Cited: R vTodd [1982] 2 NSWLR 517; R v Mills [1998] 4 VR 235; Azzopardi, Baltatzis and Gabriel v The Queen (2011) 35 VR 43; Worboyes v R [2020] VSCA 169; R v Verdins [2007] 16 VR 269.
Sentence: 1 Year and 10 Months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr David Hancock | Office of Public Prosecutions |
| For the Accused | Mr Sam Tovey | Tony Hargreaves & Partners |
HER HONOUR:
Introduction
1Zhenguang Gui, you have pleaded guilty to an indictment containing one charge of causing injury intentionally, which carries a maximum penalty of 10 years’ imprisonment.
2The prosecution has relied on a Summary of Prosecution Opening for Plea dated 14 February 2023, which I have received and marked into evidence (Exhibit A). I also received a Forensicare report dated 13 April 2023 (Exhibit B), a bundle of extracts from the depositions including photographs from pages 122-129, 172-201, CCTV footage from lift 3 in the leadup to the incident, and the police interview (Exhibit C), and the Transcript of Evidence of Patrick Newton from the sentence indication hearing preceding this matter (Exhibit D).
3In addition to the matters developed in careful oral argument, your counsel relied on Defence Outline of Submissions on Plea dated 15 February 2023 (Exhibit 1), a report of Patrick Newton dated 19 January 2019 (Exhibit 2), a report of Patrick Newton dated 22 October 2022 (Exhibit 3), a report of Patrick Newton dated 24 April 2023 (Exhibit 4), and a bundle of character references prepared by Haoze Cui, Jiajie Lu and Zeyi Gu (Exhibit 5).
4I have had very careful regard to all exhibited documents, as well as to the matters developed in oral argument when determining the appropriate sentence in your case.
Circumstances of your offending
5Your victim, Siang Seng Tan, also known as Eddie Tan, was 24 years of age at the time of your offending; you were then 21. In the early hours of the morning of Friday 6 July 2018, he was working at the Bond Bar, and during the evening had been socialising with a group of his friends, some of whom were also your friends. You and he were introduced to each other.
6At about 5.00am, you and two of the victim’s friends, named Winnie and Promise, left the bar together, as you lived in the same apartment building as the women. Mr Tan went home in a different direction. You, Winnie, and Promise continued to socialise at your apartment.
7That day, Mr Tan connected to you via WeChat and you commenced messaging one another. I have been provided with a copy of those messages, including their translation into English (excluding any voice messages). Mr Tan asked you what had occurred the night before with one of the women, and suggested that you had been rude to her, which you denied. You told him, “I like this kind of things” and suggested that he meet with you at Flagstaff Gardens at 10pm so that you could “talk and sort this out;” then he suggested meeting at a bar, implying his territory. Your conversation escalated when he expressed issue that you were not taking his concerns seriously, and he reminded you that he knew where you lived, and warned you to watch your language, and that he had a right to defend himself, “even though it may cause your death.” You replied that he should “Ask Kevin who I am, before saying these (threatening) to me,” which he found provocative and he used words that were threatening to you and insulting to your mother. A protracted conversation ensued, and you invited him to attend the Spencer Street Police Station and explain his threats. He told you that “You better not go back to your home. 601 Little Lonsdale Street” and told you that he had fucked so many people in Melbourne, but didn’t get into any trouble, and suggested you buy a plane ticket tomorrow, and should pack up and go home, and he repeated your address.
8Your mutual friend, Winnie, had contacted Mr Tan during the day and had requested that he come to her apartment on the 9th floor of your shared building. Whilst Mr Tan was in Winnie’s apartment, you sent further WeChat messages to him, stating that his voice was very loud and that you could hear him very clearly outside the room. Mr Tan went and looked around the 9th floor, as he was concerned that you might be outside the door. However, he could not see anyone on the floor, and he returned to Winnie’s apartment.
9You both began messaging each other again on WeChat, and the following exchange occurred:
“Mr Tan: “Are you at the door?”
You:“You are at my home” ... “Of course I know.”
Mr Tan:“Are you coming down or not?” ... “I’m waiting for you outside.” ... “Don’t hide in your room”
You:“But I’m already at your home.” ... “Don’t panic” ... “Calm down” ... “Now you can calmly take the lift on the left” ... “To G” ... “Wait for me in the couch in the lobby” ... “You’ll see me when getting there”.
Mr Tan:“Okay. You wait there” ... “Where are you?”
You:“You’re not sitting in the couch in the lobby”
10Mr Tan made his way to the lifts and pressed the button for the lift to go down. When the lift arrived and opened at the 9th floor, he saw a person wearing a grey hoodie with the hood over his head, with his face down, looking at the ground. That person looked up, and he recognised the person as yourself.
11I have been provided with CCTV footage from inside the lift, which captured part of the incident, which I have viewed. You are indeed wearing a grey hoodie, and underneath you are wearing what your counsel has described as “cosplay attire” (which the prosecution characterises as “a vest.”). You put gloves on.
12In spite of your suggestion that he should take the lift to the ground floor, on entering the lift, you had pressed the button for level 9, which took you to that level, with the light behind the button turning off which indicated that it had been pressed. It is apparent that you were holding a knife, and upon the doors opening at 3.22am Mr Tan saw that you had that knife, and began to retreat backwards. You tried to stab and slash him, and whilst he was moving backwards you slashed his stomach, which started to bleed. Mr Tan covered the wound with his arm to try to stop the bleeding.
13You then began stabbing at Mr Tan, and as he put up his left arm to protect himself you stabbed his forearm and twisted the blade. He felt blood gushing from his arm. You pulled the blade out and made a stabbing motion towards his neck, but he was able to partially avoid the strike, and was struck on the right arm near his armpit. You then made a stabbing motion towards his head, and he grabbed the knife with his left hand to avoid being struck and with this action cut his hand. These are the actions referable to your charge of causing injury intentionally, and I will return to summarise the injury you caused shortly.
14Mr Tan got down on one knee, and put his right hand in the air to defend himself. He began to scream and bang on doors calling for help. You stopped attacking him, and walked towards the fire escape, kicking the door of Winnie’s apartment as you left. CCTV footage depicts you leaving the 9th floor just after 3.25am.
15Mr Tan got into the lift, and obtained help from the receptionist in the lobby, and police and ambulance services were summoned to the scene.
16You removed your jumper and wrapped the knife in it, and you left the lobby wearing a leather vest (which was earlier characterised as your cosplay attire) and you ran away through an alley.
17Mr Tan was taken by ambulance to the Royal Melbourne Hospital, where the following injuries were observed:
· 1 centimetre small puncture wound at the right shoulder;
· 10 centimetre superficial laceration across lower abdomen with fat on view;
· 3 centimetre laceration on ulnar aspect of the left arm;
· Multiple lacerations on the palmar aspect of second to fourth fingers.
18I have received into evidence, and viewed, photographs of these injuries.
19On 9 July 2018, he underwent surgery as follows:
· for washout and wound repair of abdominal incised wound (abdomen closed in layers);
· for washout and repair of left forearm incised wound (wound down to muscle; nerves and vessels intact);
· to close skin only wounds to first and fourth web spaces of fingers of left hand;
· to close the wound to the left index finger (tendons, nerves and vessels were intact);
· to the wound to the left middle and ring fingers – FDP tendons of both fingers completely severed and repaired; both digital nerves repaired; middle finger radial digital artery repaired.
Investigation and interview
20Police arrived at the scene at about 3.48am, and observed you walking south on Spencer Street, wearing a brown leather vest. Police spoke to you, and you told them falsely that you had been out jogging. A police officer observed that you were wearing what appeared to him to be body armour, and also noticed blood on you, and you were arrested and given a caution and told of your rights. Police then attended at the apartment building, secured the scene, took photographs, and obtained CCTV footage from the apartment building.
21You were taken to Melbourne Police Station to be interviewed, and photos were taken of you and the leather vest that you were wearing.
22In the course of your police interview, you stated the following:
· You had been speaking to the victim;
· You had been arguing, and you felt threatened;
· You told him that you would talk peacefully in the foyer;
· When you got the elevator downstairs he tried to grab you;
· You had the knife and the body armour for protection;
· You only cut his fingers a little bit;
· You guessed that he was on the 9th floor;
· You gave the knife to a man in exchange for a bottle of water;
· You acted in self-defence.
Plea of guilty, timing, introduction to remorse
23You were charged and remanded into custody on the day of your offending, 8 July 2018, and were granted bail on 3 August 2018. The matter proceeded through committal proceedings in the Magistrates’ Court, and you were committed to stand trial in this Court on 20 June 2019. The matter was then listed for directions, culminating in a proposed trial listing on 18 October 2021, which was apparently vacated and postponed owing to the unfortunate effects on the listing of trials caused by the COVID-19 pandemic.
24Your trial was relisted to commence in July 2022. However, prior to the court accommodating this listing, you sought a sentence indication hearing which proceeded before me, with the outcome being an indication that resulted in the resolution of the matter.
25I accept and take into account that you resolved the matter prior to a jury being empanelled to try the issues in your case. You have saved the court, the witnesses and the community the time and expense of a trial.
26Your plea is of very considerable significance in the current era, where the effects of the COVID-19 pandemic continue to linger on the listing of trials.
27By your plea, you have accepted responsibility for your offending, and whilst you are insightful as to the wrongness of your conduct, you have some reservations about feeling remorse for your offending. This is a topic to which I will return. I mitigate sentence on the basis of your plea of guilty and its timing, the considerable utilitarian benefit of that plea particularly in the current era, and your acceptance of wrongdoing.
Personal circumstances, introduction to legal principles applicable to the case
28As I have mentioned, I have had the benefit of careful and comprehensive submissions from your counsel, and a series of reports which detail your background and personal circumstances, from which I draw the following summary.
29You are now 25 years of age and were 21 at the time of your offending. You were born in Shanghai, China, the elder of two children born to parents who operate a successful business in steel fabrication.
30As you have described to Mr Patrick Newton, Clinical and Forensic Psychologist, your parents devoted themselves assiduously to their business endeavours, and these endeavours dominated almost every aspect of their lives. You were primarily raised by nannies, and considered yourself closely bound to each of these care providers, but you recall that they were required to move on regularly, which you found upsetting.
31Your father was a harsh disciplinarian and was a gentleman who attempted to run his family like a business with rules and regulations. Infraction of these rules would be met with physical punishment when you were a child. Your relationship with your mother was better, as you describe her as “milder”, and she had the capacity to control your father.
32Since you have been charged, your parents have been supportive of you, and your mother has visited and lived with you periodically.
33You commenced schooling aged eight at a boarding school in Shanghai, and you spent weekdays at the school and returned home for weekends and some holidays, where you were cared for by nannies.
34From Years 6 to 9 you attended an international school in Singapore, and you found the transition very difficult, including by reason that instruction was conducted in English, a language in which you had only minimal previous experience. Your academic performance was variable.
35You were bullied severely by other students because of your ethnicity, and when you reported bullying to your parents and to the school authorities, nothing was done and you were told to toughen up and deal with it yourself.
36You arrived in Australia aged 15 in 2012 and enrolled in Geelong College for Year 10. You also found this environment difficult, and you did not enjoy good relationships with either staff or students. You were again bullied and found little support at the school. At the end of that year you transferred to Brighton Grammar School, and you continued your schooling there until you successfully completed VCE. I am relieved to note that the systemic bullying and other problems that had plagued you at earlier schools were not present at Brighton Grammar School.
37After you completed secondary school, you commenced a degree in business at RMIT University, and were in the second year of your studies when these events occurred. You withdrew from these studies in mid-2018.
38In the intervening years, you have pursued artistic endeavours and have a passion and talent for painting, and an interest in improving your technical skills as an artist and deepening your aesthetic knowledge. You completed tertiary training in fine arts at Deakin University, graduating in September 2022.
39You have not engaged in paid employment and have been supported financially by your parents.
40You also partake in computer games and care for your pedigree cats.
41You do not drink alcohol, you were not intoxicated at the time of your offending, and aside from one unpleasant experience with cannabis you have never consumed any drugs of dependence.
42At the time of your offending, you were a person without any prior criminal history, and I take your prior good character into account in significant mitigation of penalty. Your referees have told me that you are a kind and supportive friend, a good listener, trustworthy, and peaceful, and that this behaviour is very significantly out of character for you. I consider this offending, whilst very serious, to be entirely out of character and an aberration.
43In the long period of nearly five years since your offence, this matter has caused you stress and anxiety due to the uncertainty of the outcome. This delay is in no way attributable to you, and you have not reoffended in the meantime. I accept and take into account this delay and its effect upon you in mitigation of penalty.[1]
[1] Todd [1982] 2 NSWLR 517.
44This is your first period of detention in a custodial environment, and I trust and infer that it has been of strong salutary effect upon you.
45You were a young man at the time of your offending, and had just turned 21. For the years prior to your offence, you had lived independently, in a different country to your parents, and you lacked consistent parental care and affection.
46Indeed, for the purposes of sentencing, you are still young. The Victorian Court of Appeal has endorsed a number of propositions relevant to the sentencing of youthful offenders. These have been applied many times in many later cases, and bind me in the exercise of my sentencing discretion in your case.
47Relevantly, youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.[2] Further, it has been said that, in the case of a youthful offender, rehabilitation is far more important than general deterrence, as rehabilitation benefits the community as well as the offender.
[2] Mills [1998] 4 VR 235.
48In Azzopardi, Baltatzis and Gabriel v The Queen,[3] the Court considered that the general primacy of an offender's youth as a sentencing consideration is underpinned by a number of considerations related to these points.
[3] (2011) 35 VR 43, [34]-[40].
49Firstly, young offenders being immature are therefore 'more prone to ill-considered or rash decisions'. They 'may lack the degree of insight, judgment and self-control that is possessed by an adult'. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.
50Secondly, courts 'recognise the potential for young offenders to be redeemed and rehabilitated'. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, 'is one of the great objectives of the criminal law'.
51Thirdly, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender's prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed
52These principles apply in your case. I moderate sentence on the basis of your youth, and I intend to impose sentence that emphasises and allows for your rehabilitation, whilst also paying attention to the other purposes of sentencing that I have mentioned, and also deterrence, a measure of which is needed in your case.
53Patrick Newton has interviewed you on a number of occasions and has provided me with a series of expert reports, as well as the benefit of oral evidence in an earlier hearing.
54In the months following the offending, he observed in you elevated anxiety and pre-occupied worry. You have a longstanding social anxiety and you lack social confidence. Mr Newton observes that you are wary and tense around most people, and the bullying and harassment that you have experienced has understandably left you apt to discern the presence of threat and danger in situations where a dispassionate observer would likely consider the circumstances to be safe.
55One of the sources of chronic anxiety for you is the residual effect of childhood trauma. In your childhood, you unfortunately witnessed the death of a motorcyclist which, understandably, horrified you, and even now the memory of this event can come unbidden to your mind when sounds or situations remind you of the circumstances.
56I understand that you have learnt to deal with these experiences by distancing yourself from your emotions and, in the past, you would sometimes enter dissociative states of consciousness when your awareness of your surroundings and emotions was altered. Fortunately, you no longer resort to such extreme strategies.
57In January 2019, Mr Newton’s principal diagnosis of you was one of social anxiety disorder which occurs in the context of Post-Traumatic Stress Disorder in partial remission.
58In Mr Newton’s assessment in October 2022, he observed that you still presented as mildly anxious with generalised social wariness. Fortunately, this has lessened in intensity in the intervening years. However, I note that you are still wary around strangers and you experience considerable difficulty initiating social contact.
59You are able to reflect meaningfully upon the origins of your anxiety, and link this state to your early trauma and experiences of harassment.
60Fortunately, you are not experiencing prominent symptoms of depression or other mood disturbance, and you explicitly deny suicidal ideation.
61Mr Newton continues to diagnosis you with social anxiety disorder and Post-Traumatic Stress Disorder (in partial remission).
62In the October 2022 report, Mr Newton observed that the prospect of deportation adds to your experience of anxiety, and leaves you feeling an extra level of uncertainty.
63In April 2023, Mr Newton again attended upon you, and this assessment took place after you had been remanded again for these charges. You are wary of other prisoners at a level higher than that typically seen in first time prisoners. You expressed to Mr Newton recurrent feelings of shame and “loss of face” at the state of your life at present. Your emotional demeanour continues to be characterised by elevated anxiety.
64In this review, Mr Newton diagnoses you as continuing to manifest the core features of a social anxiety disorder in the context of residual symptoms of Post-Traumatic Stress Disorder.
65A complication of Mr Newton’s diagnosis of you is that you maintained consistently to him in assessment of you over a period of years that when you got into the lift to speak to the victim, you had pressed the button to take you to the ground floor.
66In the sentence indication hearing of this matter, when the CCTV footage was played in court, it was apparent to all that you had indeed pressed the button to take you to level 9 of the building, where I infer you expected to confront the victim. The CCTV footage shows you taking advantage of that confrontation by causing the victim’s injury in the manner alleged.
67In his assessment of you in April 2023, Mr Newton explored what he referred to as “these discrepancies”, and he asked you for your response. You claimed that you did not explain the story accurately last time, but “there was no way for me to know which floor he was on”.
68I share Mr Newton’s view expressed in paragraph 17 of his report:
“Mr Gui’s insight and judgement are variable. In general terms, his intelligence provides him with a good foundation for judgement and for the development of insight into his situation and the best ways of managing it. His insight into the offending is clearly only partial. That is, while he can identify some ways in which he might have avoided the incident, his ongoing denial of aspects of the offending clearly raises concerns.”
69I sought and obtained a report from Forensicare psychologist, Dr Amber Fougere. In Dr Fougere’s opinion, there is provisional evidence that you meet diagnostic criteria of Post-Traumatic Stress Disorder, in that there is evidence that you experience hypervigilance and a degree of relatively pervasive anxiety, exacerbated by beliefs about the likelihood of danger in everyday situations. Dr Fougere did note the possibility of exaggeration of those symptoms.
70Unfortunately though, you continued to maintain to Dr Fougere in her assessment in April 2023 that you deny selecting level 9 in the lift and reported to her being surprised when the lift stopped on that floor. You also denied stabbing the victim.
71As a result of your diagnoses and their connection with your troubled adolescence, I am prepared to infer that your time in custody will weigh more heavily upon you than it would a person who has not experienced this history or its effects, and I mitigate sentence on this basis. In other words, I have applied Verdins[4] factor five, and have also had regard to Verdins factor six in my evaluation of the circumstances
[4] R v Verdins [2007] 16 VR 269.
72Each of the experts has provided an opinion in relation to your prospects for rehabilitation, and your risks of recidivism. Whilst I have concerns and reservations about your reluctance and inability to take responsibility for the facts which may be observed in the objective evidence in this case, I share Dr Fougere’s view that your overall risk of perpetrating future violence is low. I consider your offending to be situational, unprecedented and not replicated in the long period of time since you committed your offence.
73I similarly share Mr Patrick Newton’s opinion, rendered after he undertook the violence risk assessment in the circumstances of your case, that you are at low risk of further violent offending. In other words, I am prepared to infer that your prospects for rehabilitation are very good.
74You have lived in Australia for close to a decade, and, as submitted by your counsel, “your life is here.” However, whilst you are a permanent resident, you are still subject to visa requirements. I understand that the Minister for Immigration must cancel your visa if you have been sentenced to a term of 12 months or more, and you will be vulnerable to the risk of deportation pending any review of that future decision and process.
75I accept and take into account in significant mitigation of sentence, that the prospect of your deportation makes your sentence more onerous as a result of weighing so heavily on your mind. This influences both the length of the sentence I impose, and also the composition of that sentence, which is an issue upon which I have reflected carefully.
76As I have mentioned, your pleas of guilty were entered at a time when the court system in Victoria was experiencing significant impediments as a result of the unfortunate effects of the COVID-19 pandemic. There was a significant utilitarian benefit in you entering a plea of guilty to the proceeding charge, which I take into account further in mitigation of sentence.[5]
[5]Worboyes v R [2020] VSCA 169.
Objective seriousness of offence; moral culpability
77In my view, this is a serious example of the offence of intentionally cause injury. You caused the victim a constellation of wounds requiring surgical repair. You used a knife to cause his injuries, and you intended to injure him in your action.
78Your offending was premeditated, in that you armed yourself and brought that knife to your ambush of him on level 9 of your apartment building, and surprised him when the lift door opened. You continue to minimise your level of premeditation in your repeated assertions to the experts in this case, by falsely telling them that you had pressed ground, and that the victim took you by surprise on level 9.
79I do consider though, that in spite of your deliberate actions and your intention to injure Mr Tan, your moral culpability is reduced in part by your panic as to the threat posed by your victim. During the exchange of WeChat messages, his responses to your “banter” with him escalated to him threatening your safety. This left you feeling powerless, possibly outclassed, unable to control him, and at risk. Had you been older and more mature, or had you been better supported by family, colleagues, or peers, you may have been able to work through ways of deescalating the heat of that conversation that did not involve you resorting to donning a cosplay vest and deploying your knife against your victim.
Purposes of sentencing, sentencing submissions
80In cases of this nature, the need for general deterrence is high. In other words, I am required to send a message to the community generally to deter others from engaging in this type of behaviour. I must give emphasis to this objective of sentencing, as well as to the need to denounce your behaviour and to punish you for your offending.
81On the other hand, the sentencing exercise also obliges me to have regard to other purposes of sentencing, that is specific deterrence – the need to deter you from other similar conduct, and also to make allowance for your rehabilitation, which as I have mentioned looms most prominently in the circumstances in which I must sentence a young person like you for serious offending.
82Your counsel has submitted that I should impose a combination sentence in your case, ie, of custody to be followed by a community correction order. I am acutely familiar with the parsimony principle of sentencing and have reflected exceptionally carefully as to the type and length of sentence that I am obliged to impose in this case, having regard also to the proportionality principle of sentencing. The length of the sentence in your case will have a real and significant impact upon your future. Ultimately, I am of the view that the proposed disposition would result in a disproportionately lenient sentence, and I am obliged to sentence you to a longer period of imprisonment than one permitted by this form of disposition.
Sentence
83On Charge 1, you will be convicted and sentenced to one year and ten months’ imprisonment.
Section 6AAA Sentencing Act 1991 (Vic) declaration
84Were it not for your plea of guilty in this case, I would have imposed a sentence of two years and six months’ imprisonment with an order for parole eligibility had there been a jury trial culminating in a finding of guilt
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