Director of Public Prosecutions v Hu

[2024] VCC 1652

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-23-01251

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZHENQIANG HU

---

JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	22 October 2024
DATE OF SENTENCE:	22 October 2024
CASE MAY BE CITED AS:	DPP v Hu
MEDIUM NEUTRAL CITATION:	[2024] VCC 1652

REASONS FOR SENTENCE

---

Subject:Trial - sentencing

Catchwords:          False imprisonment – recklessly cause injury

Legislation Cited: 

Cases Cited:

Sentence:27 months' imprisonment, non-parole period 18 months

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Gray	Office of Public Prosecutions
For the Accused	Mr C. Yang	Paul Vale Criminal Lawyers

HIS HONOUR: 

1Zhenqiang Hu, you have been convicted by a jury of an offence of false imprisonment, for which the maximum penalty is imprisonment for 10 years, and for an offence of recklessly causing injury, for which the maximum sentence is imprisonment for five years.  You have no prior convictions.

2The prosecution presented a case at trial which relied substantially on the evidence of your victim.  In summary, the prosecution case was that on the evening of 2 January 2022, you attended a social function involving, it seems, a group of workmates, including your boss, at an address in Carlton.  Arrangements had been made for some female hostesses to attend the gathering, not to provide sexual services at that stage, but to provide social services and company for those present.

3During the course of the evening the hostesses, including the victim in this matter, fulfilled that function and continued to do so until the early hours of the morning, by which time you and some of the other guests had left the social gathering and attended a karaoke venue in Little Bourke Street in Melbourne.  At that venue you negotiated a separate arrangement with the victim and agreed to pay her the sum of $1,000 to return to your home to provide sexual services.

4During the early hours of the morning, some time after 3 am, you walked with her to your apartment in Collins Street, Melbourne where you engaged with her in sexual activity.  According to her, and it seems beyond dispute on the evidence given in the case, you were unable to achieve an erection having drunk a considerable quantity of alcohol during the course of the evening.  Despite your and her efforts, you were unable to achieve an erection during the period of an hour that you had contracted with her for the sexual services to which I have referred.     

5Shortly before the end of that hour, she indicated to you that she wanted to go home.  You then left the bedroom.  She was naked on the bed.  You apparently went to the kitchen.  She was concerned about your absence and what you were doing.  She went to the kitchen and saw you with what appeared to her to be a kitchen knife.  You walked towards her with the knife in your hand in a threatening manner. 

6You grabbed her right wrist and twisted it into her chest.  You pushed her onto the bed.  You used your body weight to pin her to the bed and pushed the tip of the knife onto her abdomen, causing a slight graze.  You then said, apparently in English, 'Stay another 10 minutes'.

7It is clear that your conduct frightened her to a point where she felt that her life was in danger.  As a consequence, she grabbed the blade of the knife, snapped the blade from the handle, and whilst still holding the handle, managed to extricate herself from you, grabbed some of her belongings and left the premises.  She sought refuge in the EzyMart premises on the ground floor of the apartment building.

8As a result of her grabbing the blade of the knife, she sustained a small cut to the webbing between her left thumb and index finger.  That constitutes the offence of recklessly causing injury.  She also had a superficial injury to the upper mid-left quadrant of her abdomen where the tip of the knife had wounded her slightly.

9Police were called.  You were arrested later.  You did not tell the police the whole truth about the events of the evening and you were eventually charged with a number of offences, including the two offences for which I have to sentence you today.  You were also charged with rape and making a threat to kill.  You have been acquitted by the jury of both of those charges and I disregard those allegations completely for the purposes of sentencing you.

10It is, I think, noteworthy that at the time of your offending your victim was naked, alone, highly vulnerable and defenceless against you as a much stronger male.  In that sense your conduct was at least a mid-range example of the offence, save that the period during which the victim was under your control, in the sense of being subject to false imprisonment, was relatively short and it seems that your intention was that it would not be for a significant period of time.  Rather, you were hoping to persuade her to stay for a bit longer to enable you, if possible, to attain an erection and pursue the sexual services for which you had paid.

11You have no prior convictions.  You have a good work record in Australia and you have family commitments.  It seems highly unlikely that you will offend again.  No doubt this period during which you have been in custody awaiting trial, particularly for the rape offence, has been a period of enormous strain because, had you been convicted of that offence, you could have faced a very significant term of imprisonment, and a long separation from your current partner and your son, as well as from your parents who are now somewhat elderly and unwell.  That would have caused you considerable stress and strain over and above the stress and strain of being in custody in a foreign country without English being your first language.  Your capacity to communicate with others on remand is seriously limited. 

12I have no doubt that you have had few, if any, visits during your period on remand, so that period is a fairly significant period of incarceration already.

13Nevertheless, taking all of that into account and the fact that you want to submit yourself to deportation and would be happy to return to China, to your new family, to your parents and brother and sister, it seems to me that you deserve a significant reduction of sentence for the stress of the period that you have been in custody with a very serious charge hanging over your head which could have resulted in a substantial term of imprisonment in Australia. 

14All of that serves to reduce your sentence.  In addition to the pre-sentence detention which will come off the sentence that I impose upon you in any event, there is another 137 days, which is agreed between you and the prosecution, that I should take into account as a period in custody that should reduce the sentence that I impose upon you.  It is not necessarily a mathematical exercise but it is a not insignificant period which needs to be considered as time that you have effectively already served and which cannot be deducted administratively from the sentence that you will have to serve.

15Taking all of those factors into account, I have already indicated to your counsel what I have in mind and I think that the sentence provides a reasonable balance between the need to punish you, to denounce your conduct, to send a clear message to others who might wish to engage in similar conduct and to consider your rehabilitation.

16On Charge 2 of false imprisonment you are convicted and sentenced to imprisonment for two years and two months.

17On Charge 3 of recklessly causing injury, you are convicted and sentenced to imprisonment for four months. 

18One month of the sentence on Charge 3 is to be cumulative upon the sentence on Charge 2, making a total effective sentence of imprisonment of two years and three months.

19I fix a non-parole period of one year and six months.

20I declare 753 days of pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and to be deducted administratively from the time you will actually have to serve.

21You will soon come to the end of your head sentence.  Of course, you can still apply for parole.  Whether that could be granted in the period between now and the end of your head sentence of two years and three months, I am not sure, but you will not have all that long to wait before you go into immigration detention.  Presumably arrangements can be made fairly quickly with your consent for you to be repatriated to China.

22I make the disposal order in terms of the draft with which I have been provided.

23Are there any other orders, counsel?

24MR GRAY:  No, Your Honour.

25MR YANG:  Thank you, Your Honour.

26HIS HONOUR:  Thank you both.

‑ ‑ ‑