Director of Public Prosecutions v Jiang
[2018] VCC 2177
•19 December 2018
m
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 17 02400
Indictment No.H12338883
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZHEN JIANG |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 August 2018, 30 August 2018, 14 December 2018 | |
DATE OF SENTENCE: | 19 December 2018 | |
CASE MAY BE CITED AS: | DPP v JIANG | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2177 | |
REASONS FOR SENTENCE
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Catchwords: Aggravated burglary; common assault x 2. Entry to restaurant following dispute. Carriage of meat cleaver; Assaults within.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr Ballek on 29 and 30 Aug Ms Hogan on 14 Dec Ms V. Nguyen on 19 Dec | Office of Public Prosecutions |
| For the Accused | Mr Gwynn on 29 and 30 Aug and on 14 Dec Mr K. McLaughlin on 19 Dec | Paul Vale Criminal Lawyers |
HIS HONOUR:
1 Zhen JIANG you have pleaded guilty to three charges laid on the indictment filed in this Court being one charge of aggravated burglary and two charges of common assault.
2 You have no criminal history and nothing outstanding. You entered restaurant premises as a trespasser. You intended to assault. You carried a large meat cleaver, hence it is an aggravated burglary. The common assaults occurred following entry.
3 The maximum penalty for the aggravated burglary charge is 25 years imprisonment. The maximum penalty for the common assault charges is 5 years.
Facts
4 On 29 August, the prosecutor Mr Ballek opened this matter to me in accordance with a written prosecution opening that was dated 19 March 2018. Your counsel Mr Gwynn said that this was an agreed statement of facts. In addition there was CCTV footage which was marked as exhibit B. I viewed the footage on the plea. It is extraordinary footage. I see no need in the circumstances to describe the full factual setting in my reasons. I will incorporate the agreed summary which is exhibit A into my sentencing remarks and will not stray beyond those facts. Plainly on the night in question in July of 2017, there was a disagreement between you and the adjacent restaurant’s proprietors as to the depositing of some of their outside tables into a position near a side door to your premises. They put the tables there as it had been raining. There is no suggestion of any prior hostility in either direction.
5 You spoke to the female staff member (who was also the daughter of the owner) quite abruptly and told her to move the tables. It was a busy Saturday night and she spoke to her brother. He was going to move the tables when he had a chance. In the meantime, you returned and spoke quite curtly to the brother. He said he would move the tables when he had a moment. You abused him and left. He was taken aback. He reported to his father this unpleasant exchange and the exchange involving his sister. The father had been out of the restaurant but had returned and learnt that detail. The father then said he would in fact move the tables and he came outside to do so. He came upon you and remonstrated with you for speaking rudely to his daughter. You swore at him and he swore back. You grabbed him by the neck, he then grabbed you by the shoulder and he then starting hitting you with his left fist. The son who was inside the restaurant was alerted to the disturbance and he came out and separated you and his father. There it should have been left.
6 You were obviously angry. You raised the stakes quite incredibly, running to your shop, obtaining a serious weapon and then running out of the safety of your shop along the footpath and into the adjacent restaurant intending to assault. You were brandishing the weapon. The summary sets out what took place. The footage shows what words cannot fully describe. It shows how serious the attack was. You ran straight behind the counter intent upon assaulting the father. You were seeking him out. He took defensive action as did his daughter and others. No wonder, given the weapon that you brandished. Just as well they did or you could very easily be sitting in the dock of the Supreme Court. It was a matter of pure luck that your victim just happened to be in the vicinity of a metal tray which he picked up and used to defend himself from your attack. It was very lucky for him but also for you actually.
7 The footage shows the path of the meat cleaver which you had raised. Luckily, no significant injuries were caused to your victims. In fact, you sustained serious enough injuries yourself courtesy of the victims taking the entirely reasonable action to defend themselves from your dangerous and threatening assault. You were pulled from the shop by your wife who had followed you in. Police were summoned by both sides. You were taken to hospital and had surgery.
8 You were interviewed in August 2017. It is true that you co-operated and made a number of damaging admissions including admitting entry into the restaurant with the meat cleaver and your intent to actually hurt the father. You gave a self-serving account of being the person attacked. I do not act on your account given in the police interview or the more recent account given to the Forensicare psychologist. I repeat, that the written summary marked as exhibit A was an agreed account.
9 In the police interview, you in fact queried why you were being charged. You said you had been disarmed and then attacked. That is not what happened. You were not attacked. The occupants of the restaurant were defending themselves from your attack. The sequence you provided was not consistent with the CCTV footage, a fact pointed out to you by the interviewing member. However I do not want to get too caught up in that detail. You did cooperate with police and made admissions. I suppose this was a fast moving event, you had received a serious injury and the interview was conducted quite some time after the event. Maybe you felt like a victim. Regrettably though you still do, as the Forensicare report makes plain enough. It is quite disturbing. You still have a quite warped view of this event.
10 You pleaded guilty at what I will treat as the earliest stage. The plea was listed in April of this year but was adjourned to 29 August to allow for preparation of a psychological report following a consultation with an expert in May. No report has been filed. It is plain that at one point, there was to be some contest on the facts predominantly as to the lead up and what was said. Correspondence was sent by the prosecution in the lead up to the 29 August plea date asking if there was still going to be a contested plea and requiring an answer in that respect prior to a nominated date, failing which the prosecution would need to arrange for witnesses to attend. Your solicitor advised that an answer would be provided by the end of that week, it wasn’t and accordingly, the subpoenas were issued and served on the 5 civilian witnesses. That seeming possibility of a contested plea abated on 22 August when your solicitor communicated that fact to the prosecution authorities.
Impact
11 Your victims have chosen not to make impact statements which was their right. As the agreed summary makes clear, this was clearly an extremely frightening and confronting event and one that will not be easily forgotten. Salvatore Siciliano, the son, had never felt so scared in his life and he thought you were going to kill both he and his family. I take the impact of your crimes into account.
Mitigation
12 Your counsel, Mr Gwynn, raised a number of matters in mitigation. He relied primarily upon:
· Your early guilty plea and co-operation;
· On the 29 and 30 August, he did not rely upon the existence of any remorse in this case at all, even the remorse that often enough is to be implied from a guilty plea; he was explicit in that regard. Now that submission altered following receipt of the Forensicare report and what was contained within it. He suggested that there had been at least some slight alteration in the interim which would permit allowance for some very modest remorse;
· He relied upon the existence of the significant injury sustained by you;
· He made submissions as to the relative seriousness of the offending and the obvious role that anger and loss of control played here. Anger that had you act completely out of character;
· He took me to your background. One of full employment, industry contribution and complete lack of offending throughout your life;
· He relied upon a report from a physiotherapist;
· He submitted that you had complied with an intervention order and conditions of bail for a significant period, that this was a single serious blemish and that you had excellent prospects of rehabilitation and low risk of re-offence;
He conceded the seriousness of the offending however argued that there were some unusual features here and that you could and should be dealt with by way of a stand-alone community corrections order.
Prosecution
13 Mr Ballek, who appeared on behalf of the Director of Public Prosecutions conceded on behalf of the Director of Public Prosecutions that a community corrections order fell within the available range of sentences. That stance was maintained by Ms Hogan last week. She confirmed that there had been no issues as between you and your victims.
14 Of course I pay regard to any submission made by either counsel but I am not bound by any submission made by either your counsel or counsel appearing on behalf of the Director. I have to exercise my own sentencing discretion here.
15 Now I adjourned the hearing on the 29 August to the following day and called for a community corrections order assessment. Then on the 30 August I called for a Forensicare report. I warned you at that stage that you were to take no comfort at all from my having had you assessed for a community corrections order or extending your bail pending the Forensicare assessment. That I was considering all options and I wanted to review all of the material, receive the report and then consider what was within my sentencing discretion in this case. Mr Gwynn on 30 August suggested he could obtain another expert report. Given that the case had already been adjourned from April to August to permit the defence to obtain a report and one had already in fact been obtained which was not filed on the plea, I regarded that course as inappropriate. I don’t regard it as appropriate to commission a report from an expert, receive the report, not use it and then just move on and select another expert in the hope of obtaining a report which might be usable. In any event I have now received the Forensicare report and last week I heard further submissions and adjourned the case to today’s date and I repeated the warnings previously issued that you must take no comfort at all from my extending your bail. That this in no way hinted at the outcome of the matter.
Guilty plea
16 Let me turn to the matters raised in mitigation. The first of those is your guilty plea. You have pleaded guilty and at what I will treat as the earliest opportunity. That is what is important here, not whether along the way there has been some hiccup in terms of some desire to pursue some forlorn factual contest. So I put the issue of the potential or possible factual contest completely aside in considering the fact of the plea and the stage it was entered. You did co-operate with the police and did make some damaging admissions. I take these various matters into account in mitigation of sentence. You have taken early legal responsibility for your offending. Witnesses have been spared the experience of coming to court to give evidence. It can be an unpleasant experience reliving the crime when giving evidence and they have been spared that ordeal. The community has been saved the time, the cost and the effort associated with the conduct of a committal hearing in the Magistrates' Court or a trial up in this court. You have facilitated the course of justice, and I reward you for your decision to plead guilty and at the early stage which you did and for taking legal responsibility in the way that you did. Also of course for the extent of your co-operation. So I must pass a lesser sentence upon you than I would have imposed had you been found guilty by a jury.
Remorse
17 As to remorse, you have pleaded guilty at an early stage. Ordinarily that would imply at least some remorse. It does not do so here. Your counsel after all made what were responsible submissions on the 29 and 30 August and explicitly at that point disavowed any reliance on any remorse at that point. We have the Forensicare report which speaks of your present attitude to the offence. There is the police interview where no remorse is on display. As to the November assessment by Forensicare, you still feel you are the victim here. That is amazing really given that you have had over 18 months to reflect on what you did, on your conduct. You have given a self-serving and inaccurate account of the event in that assessment on 13 November. I do not accept for one moment that you were calm during the exchanges about the tables. You weren't. Nor do I accept your account of being abused or threatened or being rendered unconscious. I do not accept your account of grabbing whatever you saw first as though somehow you just ended up with the meat cleaver. This was your restaurant. You ran back to it and chose this weapon. You knew exactly what you were doing. I will act on the agreed summary, not your distorted view of the facts.
18 You have as recently as November maintained that fiction of being the victim here and even asserted in the course of that consultation that you feared for your life. That your violence was justified. The psychologist reminded you of some key facts; that you ran towards the perceived serious threat. You then retracted your claim of fearing for your life. The fact is of course, you had left the safety of your own restaurant and returned to the other restaurant and then entered it. Mr Gwynn spoke of at least some developments evidenced in the Forensicare report. That you had reported that on reflection you now saw your actions as wrong. You are reported as saying, “I think I have overdone it”. That is, if I may say so, something of an understatement. The author says you did not readily express remorse. She also says you were evasive. You were at least able to recognise that the victims would have been terrified and that you would be “not happy” if you had caused them serious physical injury. You are reported as expressing shame and stating that you had been a good citizen and now you had become a bad person with a criminal record.
19 As I have said, your counsel told me on the first two days of the plea that he was in no way relying on any remorse in this case either from the materials then placed before me or from the fact and stage of the guilty plea. He altered that submission given the statements in the Forensicare report and he argued that I could find some very modest remorse here and some developing insight. The problem is that when expressing what you actually think and feel, predominantly it is of being the victim here. It seems that when challenged in that respect that you make statements indicating some alteration to that view. It is hard to know what to make of the issue of remorse here. I am certainly not satisfied on the balance of probabilities that there is any significant actual remorse in play. Nor does your counsel say there is. You are a work in progress. You are displaying some very modest remorse here and I take that into account. It is actually surprising that you are not fully remorseful. You have seen the footage. 18 months have passed. The emotion of the moment has well and truly subsided. You know what you have done. Yet you are not fully remorseful at all. So there is not much remorse here at all. It is actually quite disturbing that you still have this mindset.
Background
20 I turn to your background now and I am not going to work my way through your background in every detail. It was set out in some detail in the written submissions. Mr Gwynn supplemented that with some additional matters in oral argument and it is also of course set out in great detail in the Forensicare report. I have no reason to doubt any of that material. I accept the background placed before me. Nothing in that background explains this extraordinary offending. You are 49 years of age born in China but came to Australia with your family as a 19 year old. You were educated to the equivalent of year 12 in China. You did some TAFE programs in Australia but moved into business working in your uncle’s restaurant before purchasing the business in the late 1990’s. In 2016 you moved to the location in Taylors Hill where this event occurred. You consented to an intervention order in November 2017 and you have been complying with that order. That order runs until at least November 2019. There has also been a bail undertaking which has prohibited contact. Again there is no suggestion of any breach. In fact that was confirmed last week by the prosecutor. You still run the restaurant as do the other family. The lack of any unpleasant follow up is of course a positive. There has been some consideration given to the sale of the business and surely that must be a sensible step. It must be very uneasy for you and your family and the other family to be co-existing side by side after such an event as this.
21 You are also left with the constant reminder of this event as a result of the loss of range of movement to your left arm. Maybe that injury and the impact of it has some role to play in your continuing sense of being the victim here. There is a report from a physiotherapist commenting on your range of movement, that is exhibit 3. Also some photographs of the injury site, exhibit 4. I was told that you may well need some further surgery, it has not happened yet. On a personal level, you are married, you have two grown up children aged 21 and 25 and your wife has some mental health issues.
22 You have no criminal record at all before or since. This conduct was completely out of character. Of course that is highly relevant and I do not lose sight of that. You now call in aid your past good character and the incident obviously arose out of heightened emotion and anger.
Rehabilitation
23 I turn then to your prospects of rehabilitation. Your counsel argues that you have excellent prospects given your past lack of offending and the emotional situation leading in to this sudden loss of control. It would actually be easier to reach that view if you had taken a more reasonable approach to your undoubtedly serious offending. If you actually recognised who was in the wrong. Mr Gwynn points to your unblemished life prior to this incident, with full employment and contribution. He points to your response in complying with bail and consenting to and abiding by the intervention order. The Forensicare report confirms the low level of future risk however there are some negative aspects in that report which I have already mentioned including your lack of insight, the lack of genuine motivation for engagement in the treatment so far offered (see paragraph 24) and a level of evasiveness in the interview process. You appear to have made only minimal progress with respect to understanding the factors and the processes that place you at risk for violence. See paragraph 25. Testing is consistent with someone lacking in self-insight. See paragraph 28. Your problem with self-awareness is a highly relevant risk factor, see paragraph 33. There are also some concerning statements in paragraph 36 of the report. The risk of violence is in your case particularly sensitive to fluctuation. Though the risk of future violent offending is low, should you re-offend, future acts of violence are more likely to be reactive, actuated by emotion and with a risk of opportunistic use of a weapon without consideration of the potential harm to others. Thus the potential severity of violence may be high. So there are some concerning aspects in that report. However, ultimately, I am prepared to conclude that you have very good prospects of rehabilitation and a low risk of offending in this way again. I hope that you will to a degree be deterred by the whole experience of being interviewed, charged and then dealt with by this court. My sentence will surely serve to deter you into the future.
Extra curial punishment
24
I have commented already on the injuries that you sustained. They were quite serious and I can have regard to them. Those you attacked were well entitled to defend themselves. Indeed it is most fortunate that they did given the weapon that you wielded. However you spent several days in hospital and you are left with the constant reminder of this dangerous foray into crime and it can be taken into account as extra curial punishment in the way suggested by
Mr Gwynn.
25 I take into account all of the written material that has been placed before me, as well as the oral submissions of counsel. Also the community corrections order assessment report and the recently received Forensicare report. I have already dealt with that report in my reasons to date in some detail. It is not relied upon in any Verdins type fashion. Mr Gwynn took me to comments in paragraph 41 dealing with the possibility of vulnerability in prison. That is all it is, a possibility. Maybe you will be vulnerable, maybe you will not, but I take into account that a prison term will be your first such experience. It won’t be easy for you and I do take that into account.
The Offences
26 As to the offences themselves, your counsel conceded that the aggravated burglary was serious enough offending but he argued that it was not in the most serious category given the nature of the premises entered and all the surrounding circumstances. Indeed at one point he suggested that it fell towards the lower level of offence seriousness. I simply do not agree with that submission. It is of course true that it did not involve joint entry to residential premises. It was still a serious crime indeed.
27 I do accept that there are more serious instances of aggravated burglary coming before the courts. But in my assessment, this one was a long way removed from the least serious examples of the offence.
28 How does one assess the gravity of such an offence? In the case of Meyers, a number of considerations were set out by the Court of Appeal. They are not exhaustive and they include intent upon entry, the mode of entry, whether a weapon was carried, whether the offender was alone or in company, the time of the day, what the offender knew about who would be inside, and whether the offender was someone of whom the victim was particularly frightened. Well, as I have said, you were not in company. These were not residential premises being entered in the small hours. It was a restaurant, but it was one that was open to the public. In fact, members of the public were present. The event arose quite spontaneously from this small and foolish disagreement. You then escalated it and then the event escalated wildly out of control. You were clearly not in control of your emotions. There was however some premeditation in the sense of returning to your own premises, obtaining the weapon, then running to the other premises and entering them intending to assault. Of course you should not have left your own restaurant. If you felt wronged you should have just rung the police. That is not what you did until after you had entered with the weapon. This would be a very different offence if you had run straight into the restaurant from the altercation on the footpath intending to assault. Or even if you had left your restaurant with that intention to assault without carrying the weapon. However that is not what occurred. You entered intending to assault, you held a menacing weapon which you intended to use to hurt. It was quite incredible conduct.
29 There has been much said in the Court of Appeal and, for that matter, the High Court about the limits of usefulness of applying labels to describe the seriousness of offences. See the cases of Maslen [2018] VSCA 90, Walsh [2018] VSCA 334 and also Weybury. I accept those matters as I am bound to, but we must still as judges consider the nature and the gravity of the instant offence. Your crime is, as far as I am concerned, well above the lowest examples of the offence of aggravated burglary. Well above. I accept that it does represent aberrant behaviour, and plainly was conduct where you were acting under heightened emotions. However the reality is very many aggravated burglaries, especially confrontational ones, are committed with heightened emotions. Your counsel argues that it is a single blemish from a man with an otherwise unblemished life. That is all true but what a blemish it was. This was serious criminal conduct. You have, I regret to say, jumped in very much down at the deep end of the pool. Though there are a large number in prison who have been given many chances by the courts and not taken them, there is still a sizeable enough number in prison who have in one moment, made a single fateful and terrible decision. Often enough, they are people of excellent character, people who have done something foolish behind the wheel of a car or outside a nightclub. Sometimes one blemish is all it takes to propel someone into prison.
30 It is always a serious offence to enter premises as a trespasser. You intended to assault and you were armed. This sort of offending is inherently dangerous. It is impossible to predict the end outcome. How could you possibly know in advance how those who were inside the premises would react to such a threatening situation? Aggravated burglaries can escalate wildly out of control. This was serious offending. It was madness and was lucky indeed to end in the way that it did with you being hurt.
31 Not every aggravated burglary leads into other offending within the premises. Yours did. The two common assaults I note are founded on the creation of fear and in addition in the case of the daughter, the struggle and going to ground. There were some incidental cuts obtained in the act of disarming you. I am not dealing with you for intentionally or even recklessly causing injury but they must surely represent serious examples of common assault given the circumstances producing the apprehension in the mind of the victim. It was like a scene out of a horror movie as you ran around the counter brandishing a meat cleaver. You were a very convincing figure as this was no pretence. You were not playing a role. As you told police, you meant business. You wanted to hurt Mr Siciliano and you had just the weapon to do so. How could it not be a terrifying common assault in those circumstances?
Purposes
32 I have to consider a number of purposes of sentencing. I believe that I can moderate some of those purposes owing to the absence of any criminal history and my favourable views as to your future prospects. I am required to impose a just and proportionate sentence in relation to your offending. You must be punished. You may not accept that, you may think you are the victim here despite your acceptance of legal responsibility, but I must punish you. I must also denounce your conduct. It was extraordinary conduct.
33 There is the need for this court to at least consider the need to discourage or deter you from offending in the future. I can, I believe, significantly moderate that purpose as well as community protection given my very favourable views as to your future prospects and the low risk of re-offence.
34 General deterrence is though a different proposition altogether. It is a significant sentencing purpose in this case and that is so despite the entry being to commercial premises. This court must send a clear message to other individuals in the community who might be minded to commit this sort of serious and illegal entry into another person's premises. Whether residential or commercial premises, this sort of conduct will not be tolerated by the courts and will almost inevitably be met with a sizeable term of imprisonment. That is because of the serious nature of aggravated burglary, a fact which has been spelt out by the Court of Appeal on so many occasions over the last decade.
35 It is a fact also borne out of the sentencing statistics maintained by the Sentencing Advisory Council. I must pay regard to current sentencing practices. It is not a single controlling factor. I have looked at the Sentencing Advisory Council's Snapshot No.211 of June of this year for the offence of aggravated burglary. Now, statistical material always has limitations. It says nothing at all about the individual features of the offence or of the offender. Nothing about whether a weapon was carried or not. Nothing about remorse or otherwise. I accept that there are some unusual features here being the sudden loss of control and entry into commercial premises in the setting of an angry disagreement by a middle aged man with no history before the courts. On the other hand, it was extraordinary conduct with entry brandishing the meat cleaver, a weapon that you had gone back to your own restaurant to obtain. You are pictured in the CCTV footage running towards the Italian restaurant with the meat cleaver in your hand and your wife trailing along behind you, presumably trying to dissuade you.
36 The most common sentence imposed involving incarceration fell between 3 and 4 years. The average sentence disclosed in that material rose to 3 years and 3 months in 2016-2017. I have looked also at the case of Hogarth. That case provides some guidance in relation to sentencing for the crime of aggravated burglary. It included also a large table of cases. The case of Hogarth and many cases since have commented on the seriousness of confrontational aggravated burglaries. Of course, Hogarth dealt with residential premises, I recognise that.
37 Again, I recognise that it can be unprofitable to focus on tags and labels. See the case of Maslen [2018] VSCA 90. Concentrating on the actual event is what is important. That is because I must sentence you for your crimes.
38 Though this was entry to commercial premises, it still undoubtedly was a confrontational aggravated burglary. It was a serious one. It was serious offending. Entry with intent to assault and with carriage of this weapon. It was terrifying. Then the assaults. Again quite terrifying. I have looked at the Sentencing Advisory Council (SACStat) data for that offence of common assault as there is no sentencing snapshot in existence. I have also looked at the Judicial College of Victoria sentencing manual dealing with sentences passed for the offence of common assault.
39 Your counsel argued that it would be open to fine you and admit you to a community corrections order. He then retreated from a submission as to a fine.
40 The prosecution conceded that a community corrections order was open. Of course, that is not the end of the matter. They do not pass sentence. I do. I have said that I do not ignore those submissions. I have not. Of course I do not. I do not ignore any submission made before me. I have considered them but I must exercise my sentencing discretion here.
Boulton
41 Mr Gwynn had argued in his written submissions in favour of a fine or a straight community corrections order. Now of course a fine on its own would be unthinkable in my view and as I said, he did not persist with that submission. It was totally unrealistic. What then of a community corrections order? I am dealing with three offences and the most serious of those is clearly the aggravated burglary. The aggravated burglary carries a 25 year maximum term.
42
Sending any person to prison is always a matter of last resort for any court. It is clear that a court must not confine anyone unless the purposes for which sentence is imposed cannot be achieved by a community correction order.
Mr Gwynn submitted that the purposes could be achieved here by a suitably conditioned community corrections order. The Director of Public Prosecutions of this State accepts that is so.
43 It is obvious that not every offender for every crime can be admitted to such an order. There are some crimes where the purposes of sentencing cannot be given adequate weight by the use of such an order.
44 I have had you assessed for your suitability for a community corrections order. I told you that you should not take any comfort from my calling for that report. I told you that I was considering my position as to whether prison was called for here and if so, the dimensions of any such term and whether they would even permit consideration of a community corrections order in combination. You are judged to be suitable for a community corrections order and you are assessed as having a low risk of re-offending. I am not surprised by your suitability for the order or your low risk. Again though, your being judged suitable for such an order is not the end of my task.
45 Is it actually open to me to place you on such an order in the sound exercise of my sentencing discretion?
46 Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement unless the court concludes that the purposes of sentence cannot be achieved by a suitably conditioned community corrections order. So a court must pay careful attention to the purposes for which sentence is to be imposed and whether they can actually be achieved by a stand-alone community corrections order. There are some crimes of course that are just too serious.
47 The Court of Appeal in the case of Boulton that you may recall was discussed suggested that judges ask the following question:
"Given that a community corrections order could be imposed for a period of years with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment with all its disadvantages is the only option?"
48 I have no doubt that this question must be answered in the positive. Here I regret to say, there are features of your offending which simply demand a term of imprisonment, not just a term of imprisonment but a sizeable term. This was serious offending. I do not even believe it is open to impose a combination type order here. There has been no pre-sentence detention so there is a ceiling of 12 months in terms of any prison component. Again your offending is too serious. Such an order would not achieve the purposes of sentencing in my view. One important purpose in this case of course is general deterrence. I believe that I am left with no option but to impose a significant prison term and then to fix a non-parole period. Your offending is just too serious.
Totality
49 I take into account the principle of totality. There is obviously a relationship between the three offences that you committed. You committed the aggravated burglary and that of course then led in to the two common assaults. It is a tightly grouped set of offences. However they are separate crimes with separate elements and with separate victims. There must be some level of cumulation. I have reviewed the sentences and level of cumulation and the overall sentence to ensure that it is commensurate with your overall criminality and not crushing upon you.
Section 464 ZF
50 I have been requested to make a forensic sample order. That application is not opposed and I pronounce the order in the terms in which it is sought. Pursuant to the provisions of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with the relevant provisions of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. I regard it as appropriate to make this order. I believe it is justified owing to the seriousness of the offending, the fact that it is not opposed and that it is in the public interest. I am dealing now, with a forensic sample that will be taken from you. There will be a swab run around the inside of your mouth by the authorities whilst you are in custody. It is not an invasive process and the authorities can use reasonable force to do that. It should not be a problem but I have not authorised at this stage a blood test.
Sentence
51 Mr Jiang can you stand up please and if these matters could be interpreted directly to him. I know he understands what I am saying but just so there is no doubt about it.
52 On the charge of aggravated burglary, that is Charge 1 on the indictment, I convict and sentence you to 2 years 2 months imprisonment. That is the base sentence. On Charge 2 common assault upon Paul Siciliano, you are convicted and sentenced to 10 months imprisonment. On Charge 3 common assault in relation to Amanda Rizzo, you are convicted and sentenced to 8 months imprisonment.
Cumulation
53 I direct that 2 months of the sentence on Charge 2 and 2 months of the sentence on Charge 3 are to be served cumulatively upon the base sentence and each other.
Total Effective Sentence
54 This results in a total effective sentence of 30 months or two and a half years imprisonment.
Non-Parole Period
55 I fix a period of 14 months during which you will not be eligible for release on parole.
Section 6AAA
56 Had you pleaded not guilty and been found guilty by a jury, I would have convicted and sentenced you to four and a half years imprisonment. I would have fixed a non‑parole period in those circumstances of 3 years. That statement is to be noted in the records of the court.
HIS HONOUR: Have a seat then for a moment please. All right so Ms Nguyen, are there any other matters I need to deal with at all or not?
MS NGUYEN: No, Your Honour.
HIS HONOUR: All right. Mr McLaughlin, you'll go down to see your client downstairs obviously and explain – you've made a note of those sentences so just to repeat them, it's 2 years 2 months on the aggravated burglary.
MR McLAUGHLIN: Yes, Your Honour.
HIS HONOUR: 10 months on common assault, Charge 2, 8 months on the common assault, Charge 3, and 2 months of each of the sentences on the common assault run accumulatively so it produces that total effective sentence of 2 and a half years. And I fixed a non-parole period of 14 months. There's no
pre-sentence detention at all, is there, in this case?
MR McLAUGHLIN: There's none, Your Honour
MS NGUYEN: No, Your Honour.
HIS HONOUR: All right. You'll go and see your client downstairs. Now he's not been to prison before, it's a totally new experience for him. You'll assist him as far as you can in terms of the ins and outs of the place and how he gets people on visitors lists and phone lists and those sorts of things but are there any sort of custody management issues you want me to make a note of at all or not?
MR McLAUGHLIN: Other than the injury you noted, Your Honour, to his arm, I suppose that would be of note. Other than that, his age obviously. Nothing further though, Your Honour.
HIS HONOUR: Well I mean his age will be apparent.
MR McLAUGHLIN: Of course.
HIS HONOUR: It's his first time in custody. I can mention that if you want me to or - - -
MR McLAUGHLIN: Please do, Your Honour.
HIS HONOUR: In terms of his arm injury, let me just consider that.
MR McLAUGHLIN: Just in terms of ongoing treatment I suppose, Your Honour. Maybe to be monitored in the event that it does cause - - -
HIS HONOUR: I'll just dig out that report.
MR McLAUGHLIN: - - - any ongoing stress.
HIS HONOUR: Pardon me?
MR McLAUGHLIN: In the event that it causes ongoing stress or pain.
HIS HONOUR: But is it – I mean I know it's – I know there's a limitation in movement, there's no question about that. Look, I'll make a note of it anyway.
MR McLAUGHLIN: From my understanding, Your Honour, it's just the possibility of surgery.
HIS HONOUR: Yes. Well it was raised as a possibility back in August and that's all it is still at this point, a possibility.
MR McLAUGHLIN: Of course, Your Honour.
HIS HONOUR: Anyway, look, I'll raise it. “This is this man's first time in custody, he has sustained a serious injury to his left elbow and may require treatment in relation to it.”
MR McLAUGHLIN: Yes, Your Honour.
HIS HONOUR: He has a limitation of movement.
MR McLAUGHLIN: Thank you, Your Honour.
HIS HONOUR: And I've put a note down. Anything else at all or not?
MR McLAUGHLIN: Nothing further, Your Honour.
HIS HONOUR: All right. You'll go down and see him downstairs and discuss the matter with him anyway so - - -
MR McLAUGHLIN: I will, Your Honour, yes.
HIS HONOUR: All right well that completes the matter then. So Mr Jiang,
Mr McLaughlin will come down and see you downstairs and talk about what's happened, all right? So that completes the matter, Mr Jiang can be removed, thank you. I've signed that formal order. I've got a couple of appeal matters in the list, I don't think they'll concern you, Ms Nguyen, but I'll come back onto the Bench in about ten minutes I think and we'll get underway with those.
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