Director of Public Prosecutions v Jia
[2016] VCC 422
•26 February 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01464
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HOULIANG JIA |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 February 2016 | |
DATE OF SENTENCE: | 26 February 2016 | |
CASE MAY BE CITED AS: | DPP v Jia | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 422 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Pleaded guilty to one charge of intentionally causing injury – one charge of extortion – one charge of blackmail –early plea of guilty – aged 18 at time of offence and was immature – no prior or subsequent offending – good prospect of rehabilitation
Sentence: 12 month community correction order, without conviction and payment of compensation to victim of $400.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Duckett | OPP |
| For the Accused | Ms G. Calgaro | Paul Vale |
HER HONOUR:
1 Houliang Jia, you have pleaded guilty to a charge of intentionally causing injury, an offence which has a maximum sentence of 10 years’ imprisonment; and to a charge of extortion and a charge of blackmail, both of which have a maximum sentence of 15 years’ imprisonment.
2 My sentence is based on the Prosecution Opening read out in court[1], footage filmed of some of the events causing the injury[2], photographs of your victim[3], photographs of his injuries[4], and all the matters referred to me by both counsel in court.
[1] Exhibit A
[2] Exhibit D
[3] Exhibit B
[4] Exhibit C
3 I will briefly outline how you offended. In the early hours of 8 November 2014, you were present at Stars Karaoke Bar in Bourke Street, Melbourne. You sent a message to a young man by the name of Xianjin (Tiger) Wu to come to the bar. You had not met Mr Wu, but knew of him through a friend of yours, named Guangpu Ding. Ding knew Mr Wu because in April 2014, he had met and spoken to Mr Wu about contacting Ding’s girlfriend through a chat site, and Mr Wu had agreed not to contact her further. That had been resolved, but it seems that because of that previous contact, Ding became angry with Mr Wu again in November.
4 When Mr Wu arrived at the Stars Karaoke Bar, Ding took him into a stairwell to speak to him. You followed, along with other young men and women. It seems that all participants had been drinking alcohol. Ding punched Mr Wu and you and another man, Hengyang Liu, also known as Tong Zhu, then joined in the assault, hitting Mr Wu around the head and face. Liu hit Mr Wu with a sign, while you threatened Mr Wu, saying that you knew where he lived, which Mr Wu knew was true. You grabbed Mr Wu’s head and smashed it into the wall. (Charge 1 – intentionally causing injury).
5 As a result of the assault committed on Mr Wu by all of you, he had bruising and swelling to the left jaw and cheek, his jaw and neck were ‘clicking’, he had a cut lip, low back pain, and his nose was seen to be deviating to the left. He collapsed after the assault. He took photographs of his injuries between 8 and 12 November.[5] Although you did not cause all these injuries yourself, each person involved in the assault is criminally responsible for all the injuries caused by all of you.
[5] Exhibit C
6 The assault stopped when you suggested everyone should have a drink. You demanded that Mr Wu either pay the bill for the room which your group was using at Stars Karaoke Bar, and drink a bottle of Hennessy VSOP cognac (valued at $600 a bottle) or you and the others would take Mr Wu downstairs and bash him until he was in hospital. (Charge 2 – extortion).
7 When Mr Wu said he would pay the bill of $1224, you ordered two bottles of cognac and made Mr Wu drink a 750ml bottle himself within 20 minutes, while you and Liu drank the other. Mr Wu was later humiliated while he was too drunk to do anything about it, and days later saw photographs of himself in these circumstances[6], which had been posted online. He collapsed again on viewing these.
[6] Exhibit B
8 Mr Wu was unable to pay $1224 that night, so Ding and others paid $800, and Mr Wu left his phone at the bar as security for the balance. He later arranged for a friend to pay the money in order to retrieve his phone.
9 Three days after the assault on Mr Wu, on 11[7] November, you were together with Ding and Liu. Ding rang Mr Wu and put him on speaker phone so that all of you could hear Mr Wu and speak to him. You all demanded that Mr Wu pay you money, saying it was to pay the bill for the room at the karaoke bar. The demand was not at all justified, and was made in a threatening way (Charge 3 – blackmail). Again, all of you participating in this threatening demand for money are criminally responsible for all the things said and done in the offence.
[7] This occasion was incorrectly said to be 14 November in the sentence of DPP v Guangpu Ding [2015] VCC 1981.
10 The facts in this case are serious. There is no excuse for your behaviour. You personally had no grievance with Mr Wu, and joined in the assault for no apparent reason; and then acted in an outrageous fashion in demanding he pay a large amount of money and drink an expensive bottle of spirits in a short time. The offence of extortion is based on a demand alone. The fact that you followed through with this demand makes the offence in Charge 2 more serious.
11 Your offending in all three charges is made more serious by the facts that the crimes were committed by you with others; that you assisted in the arrangements for Mr Wu to come to the bar; the extortion and blackmail were committed on the same victim and in the context of the threats you had made to him about knowing where he lived; none of the offences were provoked by Mr Wu, and your actions caused him a number of injuries.
12 I note that I sentenced Ding on 28 August 2015, when he pleaded guilty to intentionally causing injury, and to blackmail. He was not charged with extortion. During your plea hearing, I learned that I sentenced him on an incorrect basis; that is, that you had been the first to hit Mr Wu[8]. In your plea hearing, I was referred to the statement which Mr Wu made after viewing the footage of the assault, and he said that in fact Ding began the assault. I sentence you on the basis that you did not throw the first punch.
[8] The prosecutor on the plea of Jia was not the one who appeared on the plea of Ding.
13 I was told in court during Ding’s plea hearing that Mr Wu did not want to make a statement about the impact of the crimes on him. No statement was provided by him for your hearing. However, it is clear from the information I have already referred to about his injuries that he did suffer considerably as a result of the crimes. Fortunately, the injuries seem to have not been as serious as they might have been, and I accept that they are towards the lower end of the scale of possible injuries. I have no information about any psychological or emotional impact on him, but at the very least, I take into account that he would have been frightened during the assault on him by a number of people, and worried about the continuing threats and demands for money and whether he would be left alone or the abusive behaviour would continue.
14 Balanced against all of this, there are some factors I must take into account in your favour.
15 The first of these is the fact that you have pleaded guilty. You are entitled to have that taken into account in your favour and I do so. Because of your plea, the community has been spared the time and cost of a trial, and Mr Wu and other witnesses, have been spared the ordeal of giving evidence in your trial. I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.
16 I also take into account in your favour that you stated your intention to plead guilty to these charges at an early time in the criminal process, within weeks of the committal hearing. Therefore I accept that your plea of guilty indicates remorse for your actions.
17 I discussed with the prosecutor and your counsel how I should treat the fact that hours after police executed a search warrant on your house on 9 January 2015, you were discovered at Melbourne Airport attempting to leave Australia for Hong Kong, and were arrested. This was not relied on by the prosecution as a demonstration of a lack of remorse on your part, and so I do not treat it as such.
18 However, it was submitted by the prosecutor that the information had relevance because Liu returned to China in December 2014 and has not been dealt with by a court for his offending. It was submitted that in this sense, your attempt to go to Hong Kong hours after the warrant was executed, may show that you were aware of your guilt. Your counsel submitted that I should see this attempt to leave the country as a sign of your shame and recognition of the seriousness of what you had done; that you did not know how to deal with it, and that your actions reflect your level of immaturity at that time.
19 I need to be satisfied beyond reasonable doubt about a fact before I can use it as making your offending more serious. While there is little difference between the prosecutor and your counsel as both submitted that on 9 January, you were aware that what you had done was wrong, I will sentence you on the basis that the reasons behind your attempt to leave the country were more likely to be as outlined by your counsel. You had just turned 19 in December and were 18 at the time of committing the offences in November, and so you were immature and acted in that way, both at the time of the offending and in January 2015.
20 The next matter that I take into account in your favour is that you had not been in trouble with the police before November 2014. You have been in no further trouble since, which is also in your favour.
21 I have been told something of your personal history and circumstances.[9] You came to Australia from China with your parents 5 years ago, when you were aged about 15. You are now a resident of Australia. After settling here, your parents operated a fish and chip shop, and while you were at school, you worked part time in the business. After finishing your secondary school education, you began working there full time. After you turned 18, I am told that you started going to licensed premises, and late night drinking and karaoke became a regular occurrence. You apparently got into the habit of staying out late, coming home for some sleep before working your shift at the shop, and then going out drinking again. In this scene, you met Ding and other young men also carrying on a similar lifestyle.
[9] Exhibit 1 – Defence Outline of Submissions
22 Since the offences were committed at the end of 2014, you have begun to focus on a return to study. In June 2015, you completed a Real Estate Agents’ course[10], and you are interested in enrolling in Interior Design at Swinburne TAFE. Your family has sold the business, but you continue to work there for the new owners, from Tuesday to Friday. On Mondays, you undertake voluntary work with the Salvation Army and in May 2015, received a Certificate of Appreciation for your involvement in the Red Shield Neighbourhood appeal.[11]
[10] Exhibit 2
[11] Exhibit 3
23 Your family were no doubt shocked to hear about your offending, but they attended court to support you, and you have made efforts to make sure that you do not commit these sorts of crime again. You stopped drinking alcohol; you stopped going to Stars Karaoke Bar or other licensed premises; and you stopped having anything to do with Ding and Liu. In October last year, the condition of your bail that you abide by a curfew was removed, but you have since then still not returned to the reckless lifestyle you were engaged in at the time of the offending. You spend more time with your family and apparently have a new group of friends.
24 The seriousness of your crimes was probably brought home to you when you were arrested at the airport and held in custody for 5 days before being released on bail. That will be an experience you will not want to repeat, and is a strong reminder of the importance of continuing to act like a good citizen and not be the stupid, immature bully that you were in November 2014.
25 At the time of the offences you were 18 years 11 months old, and you are now aged 20 years and 2 months. The law says that your young age means that the sentence I impose on you must reflect that your rehabilitation is the most important factor for me to take into account.
26 The prosecution made application for you to pay compensation to Mr Wu in the amount of $400, being the amount he agreed to pay to Stars Karaoke Bar as a result of your extortion. You have consented to the order for compensation and so I have signed it. I take into account in your favour that you consented to the making of the order.
27 As a result of all the factors in your favour – your plea of guilty, your youth, your family support, your lack of prior convictions and your efforts to stay out of trouble – I am satisfied that the chances of your rehabilitation are good. I find that you are unlikely to reoffend, especially after having 5 days in gaol. I think you have learned your lesson by your contact with the criminal justice system, and I do not think your family will allow you to forget the important lesson you have learned about how to behave properly and not in a criminal way.
28 However, as well as those matters personal to you to which I have referred, I must also take into account what the law calls “deterrence”. I do not think that your young age affects this principle in this case. Young men can be vulnerable to committing offences of violence, particularly when in a group, because of their lack of maturity. Therefore, my sentence must try to have the effect of deterring other young men from committing these sorts of offences. This is known as general deterrence. Because of your age and lack of maturity, although I have found that you are not likely to reoffend, I think that my sentence also has a small part to play in deterring you from reoffending. This is known as specific deterrence.
29 As I said earlier, Liu has left Australia and has not been charged. Ding was sentenced by me on 28 August 2015 and was released without conviction on a community correction order for 12 months on conditions including performing 150 hours of unpaid community work. There are differences between you: Ding did not face a charge of extortion, and there was material before me that showed that his future prospects of employment may have been negatively affected by receiving a conviction. On the other hand, you were both young men with no prior convictions, and played similar roles in the offending.
30 Your counsel submitted that although the offences were serious enough for a sentence of imprisonment to be imposed, despite the seriousness of your offending, the appropriate way to deal with your offences was to release you on a community correction order. She submitted that you should be treated the same as Ding, including sentencing without conviction.
31 The prosecution submitted that the law probably required me to sentence you in a similar way to Ding.
32 You were assessed to determine your suitability for a community correction order. You were found suitable, and also found to be a low risk of reoffending.
33 I have carefully considered what the appropriate sentence is in your case. Although each of the offences has a maximum term of imprisonment, the law is that I must not send you to prison unless I am satisfied that it is the only appropriate sentence, and I accept that you should not be treated differently to Ding. As a result, in your case I do have other options and so I will not be sending you to prison.
34 I must weigh the factors in your favour against the serious nature of your offending. I consider that a community correction order is sufficient to reflect the serious nature of your offending and the court’s denunciation of offences involving injury, extortion and blackmail, but is an order that also recognises your youth and enhances your prospects of rehabilitation.
35 I have taken into account that you are to be sentenced for a serious offence that Ding did not face, but also take into account that, unlike Ding, you have served 5 days in custody. Balancing the need to treat you and Ding in a similar way where there are some differences, I have decided that a community correction order of the same length, 12 months, is appropriate in your case, and that your order should have the same conditions as those imposed on Ding, including the same number of hours of unpaid work, even though you are already undertaking unpaid work with the Salvation Army. The fact that you are doing charity work for the Salvation Army is an important factor in your prospects for rehabilitation, but it is not the same as doing unpaid work under a community correction order. The condition to perform unpaid work is part of the punishment that the court can impose on an offender.
36 Stand up please, Mr Jia.
37 If you agree, I will release you on a community correction order for 12 months on all charges. That order will have the conditions that are attached to every order which are: that you must report to and receive visits from the Secretary to the Department of Justice and Regulation; must notify the Secretary of any change of address or employment; must not leave Victoria without the Secretary’s permission; and must comply with any direction given by the Secretary to ensure compliance.
38 I will also order that you comply with other conditions during that 12 months: you must perform 150 hours of unpaid community work; you must be under supervision by Community Corrections; you must not contact or associate with Guangpu Ding; and you must not attend the Stars Karaoke Bar.
39 A recommendation was made for you to undertake treatment and assessment for alcohol abuse and dependency. I have decided not to make that a condition of the order as I accept that you have stopped using alcohol and there is nothing to suggest that you have an alcohol dependency.
40 Despite the seriousness of your offending, I have decided not to impose a conviction on you for any of the charges because of your youth, to avoid a potential negative impact on your good prospects for rehabilitation and to treat you in the same way as Ding.
41 Mr Jia, do you agree to being released on a community correction order with the conditions that have been outlined?
42 OFFENDER: I do.
43 HER HONOUR: If you are ill or there are exceptional circumstances, the order may be suspended for a time. If your circumstances change, you may apply to the court for a variation or a cancellation of the order. In either case, you must notify the Community Corrections office, and I recommend you also get legal advice.
44 If you do not complete a condition of the order, you will be brought back before me to be re-sentenced on the original charges and you will also be dealt with for breaching a condition. What will happen then will depend on a number of circumstances, but you should be aware that my options are limited, and one of those limited options is gaol. Mr Jia, do you understand what will happen if you do not complete this order?
45 OFFENDER: I understand.
46 HER HONOUR: You are sentenced as follows: on all charges without conviction, you are released on a community correction order for 12 months with the conditions that have been outlined.
47 On Charge 2 of extortion, I order that you pay compensation of $400 to Mr Wu.
48 In the event that it is necessary for me to re-visit this sentence, I note that you have served 5 days in pre-sentence detention for these offences.
49 Application has been made for an intimate forensic sample to be taken from you and through your counsel you have objected to this. He submitted that as you were aged 18 at the time of the offending and have no prior convictions, and as there was no application made in the case of Ding, I should not be satisfied that it is in the interests of justice to make the order. In those circumstances, I agree. The application is refused.
50 Finally, I advise you that if you had not pleaded guilty but had been found guilty after a trial, the sentence I would have imposed would have been a term of imprisonment for four months followed by a community correction order for 18 months.
51 Yes, thank you. Mr Jia and the interpreter, you can come out of the dock and take a seat behind Mr Yang while we prepare the documents that need to be signed just while that's happening.
52 Ms Duckett, the compensation order I had been supplied with referred to Charge 3 of blackmail - - -
53 MS DUCKETT: Yes.
54 HER HONOUR: - - - whereas it did relate to Charge 2, extortion, so - - -
55 MS DUCKETT: It should be Charge 2.
56 HER HONOUR: That's all right, my associate had the order in Word format.
57 MS DUCKETT: Of course, because it was lodged - of course.
58 HER HONOUR: So we were able to amend that - - -
59 MS DUCKETT: No, thank you.
60 HER HONOUR: - - - and I had signed it in that format.
61 MS DUCKETT: Thank you for pointing that out, Your Honour.
62 HER HONOUR: That's all right, thank you.
63 Mr Jia, as you have agreed to being released on this form of order, you need to sign a document to show that you have agreed which will now be provided to you. So this document contains the place that you need to attend at Lilydale Community Corrections Office by a certain date and time, and then it contains the conditions that I read out to you. Just check that you understand each of those conditions that will be in place, and if you agree, yes please sign.
64 (Community corrections order signed and acknowledged.)
65 I have also signed that order, Mr Jia, and a copy will be made available to you before you leave today.
66 Mr Yang, the certificates that were provided on the plea were originals so they are now on the court electronic file and so the originals can be handed back for your client.
67 MR YANG: Thank you, Your Honour.
68 HER HONOUR: Mr Jia, I do hope that I do not see you again in court. This is your opportunity. Yes, all right, thank you.
69 I thank counsel for their assistance in this matter and I will stand down until 10.30.
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