Director of Public Prosecutions v He

[2012] VCC 2187

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-12-00449

DIRECTOR OF PUBLIC PROSECUTIONS

v

XIAOQOANG HE

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2012
DATE OF SENTENCE:	9 May 2012
CASE MAY BE CITED AS:	DPP v He
MEDIUM NEUTRAL CITATION:	[2012] VCC 2187

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G. Coghlan	Office of Public Prosecutions
For the Offender	Ms K. Napier

HIS HONOUR:

1Xiaoqoang He, you can remain seated.  First of all let me apologise for not being able to pronounce your name correctly.  I am sure I could learn with a little bit of work with your interpreter, but I will do my best.  I will call you Mr He to the extent that I need to refer to you.

2Mr He, you have pleaded guilty to one charge of intentionally causing serious injury.  The maximum penalty for this offence is 20 years' imprisonment.  The facts are summarised in the prosecution plea opening, which is marked Exhibit A on this hearing, and I direct that a summary be annexed to these Reasons for Sentence. 

3Let me make it clear, Mr He and the parties, that I have read carefully the reasons for sentence given by Her Honour Judge Hannan in relation to your co-offender, Mr Chen, and in order to save time and enable me to pass sentence upon you this afternoon I have used her Reasons for Sentence upon Mr Chen as a template for the written reasons that I have prepared and from which I am delivering these oral reasons.  So the similarities in parts between the reasons that I deliver and those delivered by Her Honour Judge Hannan are no coincidence.  Where it has been appropriate I have adopted the language used by Her Honour Judge Hannan.

4

In addition to the plea opening, which is Exhibit A, I was provided with a copy of the reasons for sentence of Her Honour Judge Hannan, that is, the sentence upon Mr Chen, and that is Exhibit B.  I have been provided with the victim impact statement of the victim in this matter, and that is Exhibit C. 

I have also been provided with a photograph taken at the hospital of the abdomen of the victim showing the location of some of his wounds.  That is Exhibit D. 

5I have also been provided by the prosecution with a copy of a witness

statement signed by you, which I take it was signed by you after its contents were translated to you through an interpreter.  Indeed, the statement bears out that assumption.  That statement is Exhibit E.

6In brief summary, the victim in this matter was employed at the Eve Night Club as a promoter.   You will find that I am now reading from the text you have in front of you, from Paragraph 3.   He was responsible for VIP entry to the club.  Just so this makes some sense to the court reporters, I will just read that sentence again and continue.

7The victim in this matter was employed at the Eve Night Club as a promoter and was responsible for VIP entry to the club.  In October 2010 and over the following months he was approached by you and others seeking entry to that venue.  You were initially refused, as you did not have appropriate identification, and later in time you were refused as it was thought your group may cause trouble.  Indeed, at some stage one member of your group threatened to cause trouble, telling the victim he should not bother to open the club again.

8In November 2010 the victim was approached at another city venue by members of your group, again seeking to facilitate entry to the club.  By December 2010, you and at least one other member of your group had been placed on a banned list.  On 18 February 2011, the victim was working at the club in an area covered by CCTV surveillance.  Surveillance footage captured images of three people running at the victim and attacking him.  You have admitted that you were one of the persons involved in stabbing the victim and that you personally stabbed him twice in the abdomen.

9One of your co-offenders Mr Chen was arrested in February 2011.  He has pleaded guilty in this court to a similar offence and on 14 December 2011 was sentenced to a term of imprisonment of four years with a minimum period of two years to be served before becoming eligible for parole.  He apparently pleaded guilty on the basis that he was acting in concert with you and another.  The learned sentencing judge noted that he was only 20 years of age and she indicated that she regarded his cooperation with police in identifying his co-offenders, which included you, and in promising to give evidence in any trial of those co-offenders, entitled him - that is, Mr Chen - to a significant discount upon the sentence which might otherwise have been appropriate.

10You have made a statement, which is Exhibit E, naming a person who you claim to be the third person involved and you have given in court today a sworn undertaking not only as to the truth of the contents of the statement, but as to your intention to give evidence at any trial of that person if called upon to do so.

11The victim was taken to hospital after you had attacked him and he was found to have numerous injuries, including a stab wound causing a perforation of his colon, three other stab wounds to his abdomen, a stab wound to his shoulder, which was apparently displaced, and a stab wound to his left thigh, and a further stab wound near his shoulder.

12This is very serious offending.  You engaged in a vicious, unprovoked attack on a victim who was simply going about his employment.  You were at the relevant time in company with others.  Your offending was pre-planned, at least to the extent of your arming yourself for the purposes of the commission of the offence.  The offence was clearly aimed at causing the victim serious injury and it seems that your motivation was your apparent or claimed belief that the victim had unjustly assaulted another friend of yours near the same venue a week or so previously.

13From the victim impact statement, it is clear that from the victim's perspective there has been a significant sequel to your offending both in terms of physical and psychological harm to the victim.  He was hospitalised, he has scarring and he apparently remains fearful for his safety.  It is clear that he is a young

14man doing his best to overcome what he should not have had to endure.  The consequences as described in the victim impact statement are hardly surprising and would or should have been appreciated by you at the time of your offending had you given even a moment's thought to the possible or probable consequences of your offending.  You have no prior convictions and I take that into account in your favour.

15Your counsel has provided me with a report dated 6 May 2012 from Mr Bilyk, and I apologise if I mispronounce his name also.  He is a psychologist.  He sets out, conveniently, much of your background history.  That report is Exhibit 1 on the plea and I shall not repeat its contents in detail.  I have read it carefully and have found it useful in providing some insight into the context in which you committed this serious offence.

16You are now aged 21 years.  You were born on 18 November 1990.  You were born and brought up in - again I apologise for the pronunciation - Fujian province in China.  You have an older sister.  Your parents are farmers and you come from a fairly poor background, it seems.

17You completed the equivalent of Year 9 in school in China, then completed one year of a computer course.  In 2007, when you were aged 17 years, your parents sent you alone to Australia, in order that you might study here and advance your prospects.  You stayed initially with an uncle in Melbourne.  It seems that you fell out with him after about a month, and that you were then required to move out of his home.

18You then fell in with a group of young men from the same province in China.  That group apparently included your co-offenders.  I am told that the group was a bad influence upon you.  Nevertheless, you willingly embraced their company and failed to seek help from more benign members of the community who might better be able to assist you to pursue your studies.

19You have taken no steps at all to seek assistance from Chinese community leaders or well-established members of the Mandarin-speaking community in Victoria.  You deliberately overstayed your visa and have not sought to regularise your continued stay in Australia.

20During the plea hearing, your counsel urged me to accept that you are genuinely remorseful.  After I expressed some scepticism, arising in part from your apparent failure to display any concern for your victim, and from the period of almost 12 months between the commission of the offence and the date of your arrest, when you were effectively "on the run", your counsel called you to give some further evidence in support of her submission that you were genuinely remorseful.

21Even with a good deal of prompting from her - and I say that with great respect to her - you failed to indicate any genuine remorse for your offending or any real concern for your victim, who was then in court, and to whom you addressed part of your testimony.  I think it is fair to say that your counsel conceded that your testimony had not supported her submission.

22I have to consider your prospects of rehabilitation.  I am bound to say that I think your prospects are properly assessed as no better than moderate.  You have no history of violence but your absence of remorse and concern for your victim are not, in my opinion, encouraging.

23Further, Mr Bilyk's report assesses the risk that you will violently reoffend again as "moderate".  There is some encouragement to be gleaned from the fact that you have undertaken educational courses during your period in custody on remand. 

24Your undertaking to give evidence if called upon to do so and the provision by you of the statement which is Exhibit E are significant matters, and I have reduced the sentence that I would otherwise have imposed as a result of those matters. 

25I direct pursuant to s.5(2AB) of the Sentencing Act that it be noted in the records of the court that you have undertaken to give evidence in accordance with your statement, Exhibit E, if called upon to do so in criminal proceedings in accordance with that statement.  I treat your cooperation as at a similar level to that of your co-offender Mr Chen and the mitigating effect of your undertaking to give evidence at a similar level.

26In relation to your undertaking there are clear public policy considerations in encouraging people to cooperate in the way in which you have.  The information contained in your statement has the potential to assist in the prosecution of another offender, and you are entitled to a significant discount on the basis of the information you have provided, combined with your undertaking.

27I note that given you have overstayed your visa it is probable that you will be deported upon completion of the sentence that I will be passing upon you, but it is not suggested that the impact of the prospect of your deportation is having or is likely to have an effect on your ability to cope with the prison sentence that I must impose upon you.  In other words, that prospect is not one that is likely to make serving that sentence more onerous.

28Your counsel has pointed to a number of matters you are entitled to have taken into consideration.  Firstly, you have pleaded guilty and have indicated your plea of guilty at the earliest reasonable opportunity.  You have by your plea of guilty saved the witnesses in this case the ordeal of having to give evidence and saved the community the time and expense of a trial.  You are entitled to the full benefit of that plea.

29You have no prior convictions.  You are a young man still, and the community must have a real interest in promoting your rehabilitation.  Facilitation of your rehabilitation consistent with the balance of other sentencing objectives must be given substantial weight in the sentencing process, and I have approached

30the assessment of an appropriate sentence in your case on that basis.  Indeed, I perceive that Her Honour Judge Hannan approached the sentencing of your co-offender Mr Chen on a similar basis.

31The seriousness of your offending and your lack of remorse clearly makes other sentencing considerations, including general and individual deterrence, important in the sentencing exercise, but I have still regarded rehabilitation as a matter which should be given significant weight.

32

This is your first time in custody, and that experience is like to have a significant deterrent effect upon you, whatever the duration of sentence. 

I accept for the purposes of sentencing you that your time in custody is made more onerous by your isolation from your family, by your lack of English language skills and by cultural differences which you have inevitably encountered in the prison environment.

33I also take into account that the report of Mr Bilyk, insofar as it identifies mental and emotional issues, which will further reduce your capacity to cope with your stay in prison.  I am not sure that the principles arising from cases including the case of Verdins, have any application in this case.  However I am prepared in your favour to assume that they do to the extent that your mental impairment, as identified by Mr Bilyk, is likely to make your sentence more onerous for you than for a prisoner without such condition.

34In my opinion, those factors which make serving your sentence unusually onerous should reduce the sentence which might otherwise have been appropriate.  I propose to give you a discount which in my view is proportionate to the likely impact of those matters upon you.  Your undertaking to give evidence in accordance with your witness statement is also relevant for the reasons to which I have already referred.

35I further accept that you have concerns for your safety in custody and for the safety of your family in China, given that the co-offender, against whom you have undertaken to give evidence, is apparently from the same province in China as yourself.

36On any view, your offending conduct is inexcusable and deplorable.  Your attack upon your victim was utterly callous.  It was premeditated.  You attacked him with a deadly weapon, you left your victim very seriously injured, knowing that you had stabbed him twice in the abdomen.  For all you knew, when you left him, he could have died.  Thereafter you took no steps to enquire about his welfare.  It seems that you did not care.  You then avoided capture for almost 12 months.

37The court and the community cannot and will not tolerate offending which so seriously damages the lives of other members of the community.  I note that the victim was simply doing his job.  It can be a dangerous job.  The court should, in my opinion, be concerned to see that those undertaking similar work are offered some protection from the criminal justice system.  Your sentence must manifest the community's denunciation of your offending conduct and it must impose just punishment upon you.  I must seek to deter you from future offending and to deter others from committing like offences.

38The prosecution submits that the appropriate sentencing range is a head sentence of between four and five years' imprisonment with a non-parole period of between two and two and a half years.  I am urged by your counsel to apply the principle of parity with the sentence passed upon your co-offender Mr Chen.  In my opinion, the absence of remorse or concern for your victim and what I assess as a less favourable prospect of rehabilitation than that assessed by Her Honour Judge Hannan in relation to Mr Chen lead me to conclude that a proper application of the principle of parity requires me to pass upon you the same sentence as that imposed upon Mr Chen.

39I regard the sentence passed upon him as being at the low end of the range. 

40Indeed, I regard the sentence passed upon Mr Chen as merciful.  I conclude that a similar range of sentences applies in your case.  In the circumstances, I have no option but to impose a term of imprisonment upon you and indeed your counsel has not suggested otherwise.  Mr He, would you stand now please?

41On the charge of intentionally causing serious injury, I convict you and I sentence you to imprisonment for four years.  I direct you serve two years of that sentence before you become eligible for parole.

42How many days pre-sentence detention was it?

43MS COGHLAN:  One hundred and twenty, Your Honour.

44HIS HONOUR:  One hundred and twenty.  I direct that 120 days be reckoned as time served on that sentence, and I direct that that fact be noted in the records of the court.

45But for your plea of guilty to this offence, I would have sentenced you to a term of imprisonment of five years and six months, with a non-parole period of three years and four months. 

46The prosecution have made application for the obtaining of an intimate forensic sample to be taken from you.  I understand that you do not oppose that order.  I must warn you that, when you are requested to provide an intimate sample by taking of a scraping from inside your mouth by an authorised member of the police force, if you do not consent to the sample being taken in that way, then the sample will be taken by obtaining a blood sample, and the police may use reasonable force to enable that blood sample to be obtained.  Do you follow?  I am sure you will consent to the obtaining of a scraping from the inside of your mouth.

47I think I have got six copies of the order; is that correct?

48MS COGHLAN:  Your Honour, there is probably one in custody and one not in custody.

49HIS HONOUR:  Yes, I see. 

50MS COGHLAN:  Your Honour, if you would like to pass it down, my instructor can sort through it.

51HIS HONOUR:  Do you mind?  I have probably muddled them up, so they might take a little bit of sorting out.

52MS COGHLAN:  There should be three in custody.

53HIS HONOUR:  Yes.  Anything else, counsel?

54MS NAPIER:  No, Your Honour. 

55HIS HONOUR:  Thank you for your help.

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