Director of Public Prosecutions v Guo

[2020] VCC 1572

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00476

DIRECTOR OF PUBLIC PROSECUTIONS

v

JIAMING GUO

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	25 August 2020
DATE OF SENTENCE:	1 October 2020
CASE MAY BE CITED AS:	DPP v Guo
MEDIUM NEUTRAL CITATION:	[2020] VCC 1572

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Pleas of guilty – Aggravated burglary offensive weapon – Summary charge of possess prohibited weapon without exemption or approval – No prior convictions – Cooperative with police – Youth detention

Legislation Cited: s. 77 Crimes Act 1958 – s. 32 Sentencing Act 1991

Cases Cited:DPP vHogarth [2012] VSCA 302 – DPP v Meyers [2014] VSCA 314 – Maslen v The Queen [2018] VSCA 90 – R vDoran [2005] VSCA 271 - R vMills (1998) 4 VR 235 - Tokava [2006] VSCA 156 - R v Merrett & Ors [2007] VSCA 1 - Guden [2010] VSCA 196 - DPP vBurke [2020] VSC 130 - DPP v Dalgleish (a Pseudonym) (2017) 91 ALJR 1063 - Boulton [2014] VSCA 342 - R v Bainbridge, Cullen & Ludowicki (1993) 74 A Crim R 265

Sentence:Total effective sentence of 12 months detention in a Youth Justice Centre.

Section 6AAA - Three years imprisonment with a minimum of 20 months imprisonment to serve before being eligible for parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr F. Cameron	Office of Public Prosecutions
For the Accused	Mr R. Nathwani	Lewenberg & Lewenberg Solicitors

HIS HONOUR: 

1Jiaming Guo is now aged 20.  When this offending was committed, he was 18, having been born on 26 January 2000.  In the hearing, and today, Mr Cameron appears on behalf of the Director and Mr Nathwani on behalf of Mr Guo.

2Mr Guo is a student and resides at a unit in Dryburgh Street, Carlton. He is studying a business management course at RMIT. The plea was conducted on 25 August 2020 to the one charge in the indictment No. J13137085, which was a charge of aggravated burglary pursuant to s.77 of the Crimes Act1958, for which the maximum penalty imposed is one of 25 years imprisonment. 

3Inherently, given that sentence, the highest maximum sentence imposed under the Crimes Act, but for a sentence of life, such is an indication from Parliament of the seriousness with which Parliament views this crime.

4The crime itself took place on 3 November 2018.  It was upon premises known as Unit 3709/550 Elizabeth Street, Melbourne.  As I understand that is the extension which takes us into the general Docklands area.

5The aggravated burglary, with the intent of the burglary being to steal and assault, was committed by Mr Guo with a number of people. By a ruse, they entered the premises, and Mr Guo had in his possession a wooden rod.  At least two of his co-offenders had knives. 

6The victim was Ms Ailing Yan.  She was a tourist.  She was present at that unit which was owned by a friend.  It would appear, certainly by way of background to this offending and indeed, how the ruse was effected, that one of the group's friends had previously partaken of what appears to be sexual services offered at those premises. 

7The ruse, as I understand it, was to gain entry by seeking such services, but in fact, the intent as was indicated in the record of interview was to seek some type of revenge / recompense for what had occurred to their friend who was back in China, caused by him contracting a venereal disease at these premises. 

8Coming back to the circumstances, ultimately by this ruse, that is, with Mr Guo and others getting in, ten males entered the premises.  All of them had gloves, some of them had masks. 

9It was accepted by Mr Nathwani that his client was at least on the premises thereafter for one hour, during which time threats were made to the victim of rape, and also an attempt made to transfer $10,000 out of her bank account.

10Through other observations of Mr Guo in circumstances which I am not totally aware, a warrant was issued on 30 November 2018 and he was arrested approximately one month after this crime.

11In the record of interview he made admissions.  He was cooperative, in that he nominated co-accused from the photos presented, and indeed, gave the police information that they would otherwise not have had. 

12He comes before the Court with no priors.  He has, or had a student visa.  I understand he is currently on a bridging visa dependent upon these proceedings.  There is no pre-sentence detention. 

13Mr Nathwani pleaded, on behalf of Mr Guo, to a summary offence brought before this Court which is an offence pursuant to s.5AA Control of Weapons Act1990 which related to two batons found in his possession.  The maximum penalty prescribed for that offence is one of 240 penalty units and/or two years' gaol. 

14A disposal order has been sought in regard to those, which I have signed. 

15As I have indicated, the maximum penalty for this indictable offence of 25 years discriminates the crime as inherently serious.  The precise particulars are detailed in the opening prepared by the learned prosecutor, in particular at [13] to [17] of Exhibit A, and in the photos presented to the Court, Exhibit B. 

16The crime committed by Mr Guo was not disputed by Mr Nathwani as being objectively serious.  As I said, the background motivation seemed to be either one of revenge or a desire to seek payment for a person, who had contracted a sexually transmitted disease, and was a friend of all of these persons. 

17It seems that there may have been two major organisers who were older than Mr Guo, however, Mr Guo appears to have been, given what he was carrying and the manner in which the ruse was effected, a very willing participant in the enterprise.

18This was a night-time entry into a person's premises, albeit that it was not specifically her home at the time. The entry, was obtained by way of a ruse, which had been well-planned.  After the entry, Mr Guo facilitated the entry of a further number of men, some were masked, all had gloves on.  Thereafter, threats were made during the hour that all the persons were there and there was an attempt to obtain money from the victim’s bank account. 

19Against all of those factors, it must be said that there was no physical injury caused to the victim, nor has there been any victim impact statement tendered.   The victim actually has returned to China after the short visit. Indeed, the cooperation of Mr Guo is even more important on that basis, because the police were not in a position to obtain precise details from the victim.  There has been, however, as I understand it, no other persons charged for this crime.  Is that correct, Mr Nathwani, as far as we are aware? 

20MR NATHWANI:  Yes.

21HIS HONOUR:  Yes. 

22The principles, given the circumstances of this crime, are set out by the Court of Appeal in Hogarth [2012] VSCA 302. Given the sentence Parliament imposed what must be effected in any sentence is general deterrence, denunciation, punishment and specific deterrence.

23Given those circumstances, it was no wonder that the submission of the prosecution called for imprisonment and/or in the totality of the factors put by Mr Nathwani as an alternative, at least detention.  It was the view of the prosecution that any other alternative was not appropriate. 

24The principles set out in Hogarth were further commented upon by the Court of Appeal in Meyers [2014] VSCA 314, [36]. These principles were further spoken about in Maslen [2018] VSCA 90, in which I was the sentencing Judge, where the Court of Appeal had to deal with a serious aggravated burglary similar to this, where there had been entry into premises by a number of people. The major difference was that the perpetrator was a person with serious priors, albeit that there was a late night entry by a number of people wearing beanies and gloves.

25The proposition on appeal was that the sentence of six years with a minimum of four, was excessive.  The Court said at [40], the following: -

'We disagree.  To the contrary and bearing in mind the maximum penalty is 25 years imprisonment, Hogarth and Meyers make it plain that a sentence of six years imprisonment on a plea of guilty may well be apposite for a serious case of aggravated burglary.' 

26It seems to me that that quotation is particularly apposite to the circumstances of the objective offending in this matter, and no doubt is the foundation of the submission made by the learned prosecutor.

27As to the plea, Mr Nathwani, both on the day of the plea which was 25 August 2020, and today, made submissions to the Court that despite the objective seriousness, that the totality of the mitigatory factors here are sufficient to attract firstly a community correction order, or if that was not attractive to the Court in the alternative a Youth Justice Centre order, pursuant to s.32 of the Sentencing Act.

28In that regard, I called for a community correction assessment report under s.37(b) and that report has been tendered as Exhibit C today, and a youth justice pre-sentence report under s.32(1) which has also been tendered today as Exhibit D. The factors relied upon by Mr Nathwani were as follows:

29Firstly, Mr Guo's youth.  Both at the time of offending, being only at the age of 18, and the fact that he is still only 20 at this date, and he is a deemed young offender pursuant to the Sentencing Act. 

30The second matter was his assistance to the police in their investigation.  These matters are set out in particular at [24] of the prosecutor's opening, where the information that Mr Guo detailed in the record of interview is set out.  In that record of interview he detailed and identified other offenders, he detailed offenders from the photos, he gave details of the baton that he had, and indeed, gave details of the totality of the criminality which would otherwise not have been possible. As I have indicated, the victim herself was not available to give such evidence or information. 

31In particular, Mr Nathwani relied upon Doran [2005] VSCA 271. I accept those principles. It seemed to me, however, that the degree of disclosure in this case, is not of the degree that there was in Doran. 

32However, I accept the cooperation in the matter.  Also not only did he identify people, but indicated that he would give evidence to that regard, such can only be seen as valuable assistance to the investigators. Albeit that no-one was subsequently charged, I do conclude that Mr Guo is entitled to an appropriate discount for his cooperation and his intent to assist if any Court case took place.

33The next matter relied upon by Mr Nathwani was his rehabilitation, especially given his youth.  There is no doubt, and I adopt, especially given his age and being a young offender, the principles set out in R vMills (1998) 4 VR 235 which were referred to by Mr Nathwani, and in a particular the general principles detailed by Batt JA at p.241.

34It is appropriate to take into account the importance of rehabilitation especially when it's connected to a young person, as referred to by the President of the Court of Appeal in Tokava [2006] VSCA 156, [4] and [24], and R v Merrett & Ors [2007] VSCA 1, [49].

35Insofar as rehabilitation is concerned, Mr Nathwani had put to me, not only did Mr Guo have no priors, but certainly there has been no offending since and from the statements made in both reports and evidenced by steps in the two years since this offending, that he is on the path to rehabilitation.  There is strong support from Mr Guo’s parents and his friends set out in Exhibit 2, and indeed, as was referred to this morning, the community correction officers have concluded that there is a low risk of recidivism, as set out in Exhibit 3 the community corrections report. 

36Mr Nathwani also refers to the positive youth justice report under s.32, tendered today, and in particular, takes the Court to the circumstances detailed in the third full paragraph under the heading, 'Suitability for Youth Justice Centre' by Mr Riordan. As I have already indicated, this Court is well aware of the experience of Mr Riordan and his views have considerable impact.

37Mr Riordan was, of course, predominantly considering, as he had set out in that paragraph, s.32 and in particular s.32(b) which relates to the question of a young offender being particularly impressionable, immature or likely to be subjected to undesirable influences in an adult gaol.

38However, his comments in the paragraph that I referred to, referred to Mr Guo being placed in custody either in an adult gaol or in a Youth Justice Centre. 

39As Mr Nathwani stressed to the Court, it was the view of Mr Riordan that given Mr Guo’s age, development and personality, that there would be a risk of being stood-over, ridiculed and harassed leading to, rather than his overall rehabilitation, a negative and possibly lasting effect on Mr Guo's rehabilitation.  I do take those matters into account.

40The next matter was the fact as I have already mentioned, that Mr Guo has no priors.  It was put that this crime is an act of immaturity, that it may well be, given he had only been in Australia for approximately one year, able to be sheeted to a circumstance where a young man was in a new country without parental support.  Indeed, as I have recounted and as this Court is aware, the immigration experience and journey of many students in this State in particular, is sometimes interrupted and made difficult by those circumstances and I do take that into account.

41The other matter as to the impact of any gaol sentence was the risk to his future, in the sense of completion of his studies.  I am not too certain whether he has the desire to stay in Australia ultimately, but certainly to ensure his studies, it appears his parents have not only borne the cost of sending him to Australia, but apparently bought the home where he resides. Of course, this sentence in particular, if it was an adult sentence, would place all of those desires in jeopardy.  I take into account of course his concern about his future which would take place during any period of confinement, and the principles set out in Guden [2010] VSCA 196, [37].

42As I indicated today to Mr Nathwani, it is not my role to be involved in such administrative step. But it seems to me that any administrative action taken by the Minister, should be made being fully conversant with the indications of mercy and leniency that this Court has made.

43The next matter of course is the COVID-19 epidemic that we are all dealing with in this community.  I am fully aware that Mr Guo will be required to undertake immediate isolation for a period of 14 days, thereafter again I am not fully conversant of the risk at a Youth Centre, but clearly where anyone congregates, there is that risk. Although as I have said to date, the Department of Corrections seems to have been taking excellent steps to overcome such, but there is clearly that risk.  No doubt various programs which could otherwise be offered, will be limited and the visits by friends will be clearly restricted and his own nationality and background will also have an impact on him while he under confinement in the sense of causing some form of isolation.

44The further matter was the plea itself.  I accept that such entitles his client to a discount on the basis of it being utilitarian, and demonstrates his remorse.  I accept the statements made by him to his parents that he has given up his former bad associates.  I accept the plea effects justice and assists it’s attainment. I further take into account the principles set out recently by the Supreme Court in DPP vBurke [2020] VSC 130, [323], the utilitarian benefit of a plea at this time.

45As I indicated this morning to Mr Nathwani, I have put all of the factors that he has valiantly put to this Court into the calculus that is required for this sentence.  Ultimately, Mr Guo, as detailed by the High Court in DPP v Dalgleish (a Pseudonym) (2017) 91 ALJR 1063, 1075 is entitled to a sentence based upon the totality of the circumstances in this case, and accordingly to a just sentence.

46Upon the completion of the sentencing calculus, I have determined that a community correction order is not appropriate, despite the principles set out in Boulton [2014] VSCA 342, [17].

47Given the seriousness of this offence and the aggravation surrounding it, and balancing all other factors I have concluded that there is no other sentence appropriate, but for a sentence involving confinement. 

48In R v Tsiamis, an unreported decision of the Court of Appeal dated 21 May 1997, Phillips CJ referred to a case in Queensland which really summarises what I find in this case.  The case, in the Queensland Court of Appeal, was R v Bainbridge, Cullen & Ludowicki (1993) 74 A Crim R 265. The Court said:

'There are, of course, some cases which are so serious that, notwithstanding youth and the absence of relevant prior convictions, the offender must go to gaol.' 

49Unfortunately, Mr Guo, while I have decided that you do not, despite the seriousness of offending, and based on the totality of the circumstances, need to go to gaol. I do, given the objective findings, and despite the mitigating factors here, determine that a sentence of confinement is necessary. I make such decision taking into account your youth, your inexperience, and the totality of the matters put to me, including the principles of parsimony, the specific principles set out in the Sentencing Act, s.5(3) and s.5(4)(b) and in particular, in your circumstance, s.5(4).

50Yes, Mr Guo, if you would stand please. 

51You will be convicted of both the indictable offence and the summary matter. Pursuant to s.32A in regard to both offences, you will be sentenced to confinement in a youth justice centre for 12 months;

52For clarity, although this matter has not been put, I noted it in the Sentencing Act, the offence in the indictment is not a Category A or a Category B serious youth offence. 

53I have signed the disposal order.  In the circumstances the task set by the Parliament under s.6AAA is difficult.  The factors that have led me to pronounce this sentence and the calculus that I have indicated are such that to simply discern the impact of a plea of guilty only is very difficult. 

54However Mr Guo what Parliament requires me to tell you is had you not pleaded guilty, you would not have been getting a youth detention sentence for a period of 12 months, but a sentence which would involve you being imprisoned for three years with a minimum period to serve, of 20 months. 

55Mr Guo, as will be explained to you by your counsel, a sentence of 12 months in a youth detention centre is not subject to any order from this Court as to its term, or the length of time that you will be in a Youth Detention Centre, such matters being determined administratively by the appropriate authorities.  That matter will be fully explained to you in due course by your counsel.

56Yes, are there any matters that either counsel think that I need to attend to, or I have not attended to properly.  Mr Prosecutor? 

57MR CAMERON:  No, Your Honour.

58HIS HONOUR:  Mr Nathwani?

59MR NATHWANI:  No, thank you. 

60HIS HONOUR:  Yes.  Can I thank you both for your assistance.  Sentencing a young man of Mr Guo's age is never an easy task and I thank both counsel for their assistance. 

61MR CAMERON:  As Your Honour pleases.

62HIS HONOUR:  I am not sure what happens in Youth.  Normal principles is it, that he is taken down and someone takes him off to Malmsbury, do they, or is there a reception centre somewhere, officer? 

63CORRECTIONS OFFICER:  That is correct, Your Honour. 

64HIS HONOUR:  And then he goes to Malmsbury, all right, because sometimes I have had Mr Riordan in here and he walks off with them, but probably not in these circumstances.  Can I thank both officers for being here and undertaking the obvious risks that your occupation currently involves.  Much appreciated. 

65Yes, Mr Guo, good luck, I am certain that you will be successful once you get over this aberration and as best I can, I have indicated in this sentence that the Attorney if he comes to exercise his jurisdiction in your matter, should exercise it with leniency and mercy.  That is as best as I can do.  Yes, Mr Guo can be taken down.  

66Mr Nathwani, I am not too certain, I suppose it is just the usual.  You will go down.

67MR NATHWANI:  I will try sir.  I am not sure ‑ ‑ ‑ 

68HIS HONOUR:  Try.  Not sure if you are allowed to.

69MR NATHWANI:  No, I will give it a go. 

70HIS HONOUR:  Yes, well I am just totally unaware of what happens.  I just got a perception that what used to happen is that the youth officer would be here and they would just walk off with him to Malmsbury but I might be, probably happens, probably at the moment because of the COVID, there must be a protocol. 

71MR NATHWANI:  That they have to go through, yes.

72HIS HONOUR:  Yes.  I do not know where he does his 14 days, whether it is here or Malmsbury. 

73MR NATHWANI:  Again, I do not - I imagine it would be here or somewhere close by. 

74ASSOCIATE:  It is actually at Malmsbury.

75HIS HONOUR:  It is at Malmsbury.  Well, there you are, that has been solved.  Officer, we understand the 14 days lockdown initially is done at Malmsbury, is it?

76CORRECTIONS OFFICER:  It would be at the location he is travelling to. 

77HIS HONOUR:  To?  All right. 

78CORRECTIONS OFFICER:  Yes, we will put him in quarantine and then he starts ‑ ‑ ‑ 

79HIS HONOUR:  But where is the quarantine done?  That is really what we are ‑ ‑ ‑ 

80CORRECTIONS OFFICER:  All the same, it will be at Malmsbury. 

81HIS HONOUR:  All right, okay, well that appears to be Mr Nathwani, but I cannot answer that

82MR NATHWANI:  No, thank you.

83HIS HONOUR:  Clearly very appropriate I think. 

84MR NATHWANI:  Yes.

85HIS HONOUR:  Yes, thank you. 

86MR CAMERON:  Thank Your Honour. 

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