Director of Public Prosecutions v Jiang
[2016] VCC 494
•26 April 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-02051
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HENRY JIANG |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 16 March 2016 | |
DATE OF SENTENCE: | 26 April 2016 | |
CASE MAY BE CITED AS: | DPP v Jiang | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 494 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – theft – “dead time”.
Legislation Cited: Crimes Act 1958, s74; Sentencing Act 1991; Criminal Procedure Act 2009.
Cases Cited:R v Renzella [1997] 2 VR 88; R v Kotzmann [1999] 2 VR 123; Warwick v R [2010] VSCA 166
Sentence: Pursuant to s75 of the Sentencing Act 1991, the proceeding is adjourned until 26 April 2017 at 10.30am on condition:
(i)the offender attends before the Court if called on to do so during the period of the adjournment and at the time to which the further hearing is adjourned;
(ii)that the offender is of good behaviour during the period of such adjournment;
(iii)that the offender makes a payment of $200 to the County Court of Victoria, which such money to be provided to a charitable community service.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Piggott | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr R. Malasecca(solicitor) | Malasecca, Kelly & Zayler |
HIS HONOUR:
1 Henry Jiang, you have pleaded guilty to the offence that you, at East Doncaster in Victoria on 2 April 2014, stole property belonging to Felicity Colbert[1]. Such offence is contrary to s.74 of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
[1] A pseudonym.
The circumstances of the offending
2 The charge of theft was one of eight charges on Indictment No.E114435176. The other charges on the indictment were one charge of false imprisonment, five charges of rape, and one charge of indecent assault, all alleged to have occurred on 2 April 2014 and involving Felicity Colbert.
3 When arraigned on 16 February 2016, you pleaded guilty to the charge of theft, Charge 8, and not guilty to the other seven charges. You stood your trial in relation to the other seven charges, and on 10 March 2016, a jury found you not guilty of each of those seven charges.
4 To understand the circumstances surrounding the theft offence for which you have pleaded guilty, it is necessary to refer to some of the evidence at your trial, in order to give some detail of what transpired between you and Felicity Colbert, who I shall refer to as “the complainant”, in the early hours of 2 April 2014.
5 On the night of 1 April 2014, you met up with your regular drug supplier, in order to purchase some methamphetamine, more commonly referred to as “ice”. You met such supplier sometime between 11 pm and midnight, after which you and your drug dealer smoked ice for a period of time. The drug dealer lived with his parents in a suburban street in East Doncaster, next to which was a vacant house with a “for lease” sign out the front. After a period of time, your friend had to leave to attend his business and wishing to avoid his parents who were due to return home, you entered the vacant house through a side window and continued smoking ice, which you described as increasing your sexual desire. In the early hours of 2 April 2014, you contacted the Lace escort agency to arrange for an escort to attend the vacant premises for a one hour service. The cost of such engagement was $350.
6 Over the first hour of such engagement, you and the escort (the complainant) smoked ice, with a small amount of sexual activity. The evidence established that the escort had had two earlier engagements, for which she had been paid a total sum of $700 and that on arrival at the vacant premises, she collected a further $350 from you.
7 At the end of the first hour or so, you enquired as to whether the complainant could stay on for a further period of time, in order for you to obtain some sexual satisfaction. In her evidence, although the complainant acknowledged that there was some discussion about her being engaged for a further hour, she gave evidence that she would leave the premises and be taken home by her driver, who was situated a couple of houses down from the vacant premises.
8 The complainant alleged that when leaving the premises, you handcuffed her and ultimately bound her, causing her to be falsely imprisoned. Furthermore, over the next hour or so, she alleged that she was effectively imprisoned, both by physical restraint and the fear that you engendered in her. During such time, she alleged that you vaginally raped her, anally raped her, digitally raped her in the anus, performed unprotected oral sex and indecently assaulted her, all without her consent.
9 You gave evidence in your trial and described that at approximately the end of the first hour, an agreement was reached with the complainant whereby she would stay on and, for the fee of $150, together with the provision of some of the drug, ice, she would be prepared to engage in light bondage, unprotected oral sex and a variety of sexual activities. Your case to the jury was that the complainant was never falsely imprisoned and that, to the extent that any sexual activity was engaged in between you and the complainant over that second period, such activity was completely consensual.
10 After you had ejaculated and the complainant was taking a shower, you sought to find what was referred to as your “deal bag”, which contained about seven or eight points of ice which you had purchased earlier. Such bag could not be found and you came to the view that the complainant had stolen such ice and when confronted with such allegation, the complainant said, “Oh, we must have used it all”, which you knew to be clearly wrong.
11 In particular, I refer to your evidence in the trial at the point where you are describing looking for a lighter to assist burning off the ties which were still on the arms of the complainant and, in particular, it is recorded:
Q: “What happened when you went to get your lighter?"
A: "When I go back in and get my lighters I just – sorry, ‘cause I looked down and my bag of drugs was gone."
Q: "Yes?"
A: "And on that instant basis, you know, I was just knew – I knew that I was ripped off."
Q: "How much of your drug was still left there?"
A: "At least seven to eight points.""
Q: "That would be somewhere around $448 worth?"
A: "You could say that.
Q: "Did you talk to her about your drug?"
A: "Sorry?"
Q: "Did you ask her anything about your missing drug?"
A: "Yes, I did."
Q: "What did you say to her?"
A: "I asked her, you know, I’ve misplaced it, ‘Have you seen it?’ and then she basically turned around saying that 'we’ve had it all.'"
Q: "You had it all, I see. Yes thank you."
A: "And the minute I heard that, I think that it was just nonsense and then I just knew that it going to end there.”[2]
[2]Transcript (“T”)1123, Line (“L”) 9-26
12 You also gave evidence that you looked through her bag to see whether you could find the drugs and in so looking, found the money you had paid her. In particular, the following evidence was recorded.
Q: “Were your drugs there?"
A: "I couldn’t find anything, so I decided to just grab the" - - -
Q: "You’ve told the court at all times you saw her drop the money into her bag, just drop the money into her bag. Were you, at any stage, aware of another compartment in her bag?"
A: "No, I was in a hurry."
Q: "Did you search her bag for any secret compartments or any zipper compartment?"
A: "No."
Q: "So you looked in the bag, your drugs were not there?"
A: "Yes."
Q: Was your money?"
A: "In fact, I couldn’t even look through the bag clearly or anything, you know, I just had a quick look."
Q: "Was your money there?"
A: "The money is on the surface."
Q: "Then what did you do?"
A: "I grabbed it. I took it."
Q: "Why did you take the money?"
A: "Because I think, you know, she pinched my drugs and I just thought that – I didn’t like that, I really didn’t like that. I thought that, you know, it’s even, just make it even, sort of thing, and I took it.”[3]
[3]T1124, L13-30
13 You gave evidence in the trial that such money was $500, being the initial $350 paid to the complainant and the later $150 involving the second period. It was asserted by the complainant that you stole $1,000 or $1,100, that being the moneys also obtained from the earlier two engagements. To such allegation you replied, “nonsense”.
14
You also gave evidence that on seeing her phone on the floor, you took such phone, which was later thrown in a bin outside the unoccupied premises. You told the court that the reason you took the phone was because you were worried that she may call “the minder” and there may well be “dramas”. You stated
“I know it’s wrong, but I did it”.
15 The complainant gave evidence that she had two phones with her and both phones were stolen.
16 I interpret the jury verdict to mean that it was not satisfied that the prosecution had proved beyond reasonable doubt any of the seven charges to which you pleaded not guilty. Although it does not necessarily follow, I ultimately find that the jury accepted the version of events which you said occurred during the extra time with the complainant.
17 To this end, I do find that the extent of the theft is limited to the sum of $500 and one telephone. I further accept that the basis of the theft of money was effectively in lieu of what you considered to be stolen drugs of roughly that value. Furthermore, I accept that the theft of the telephone was for no other purpose other than to give you some protection when leaving the premises and to avoid the minder who, you knew to be in the vicinity, but had no idea of his physical stature or what his attitude would be to taking the money.
Victoria Police criminal record
18 Your criminal record was tendered (Exhibit 1). You accepted that at the Melbourne Magistrates’ Court on 6 August 2007, you were found guilty of assault by kicking. At that time, the proceeding was adjourned without conviction for one year with you to pay $200 to the Court Fund.
Your personal circumstances
19 Your solicitor tendered a document setting out various submissions in mitigation of your sentence, (Exhibit B), and also reports from the psychologist, Dr Michael King, dated 28 November 2014, and from the consultant psychiatrist, Dr Adam Deacon, dated 28 July 2014, (Exhibit A). I also refer to parts of your evidence-in-chief during the course of this trial.
20 On the basis of the matters I have referred to and various other information put to the court during the plea, I note the following:
(a)You were born in the Guangdong Province of China on 24 December 1981, making you currently 34 years of age. You are an only child, with your parents living in China, but they are in the process of migrating to Australia. You described that you were raised by caring and nurturing parents, with your father being involved in the import and export of building contracts and also working as a stockbroker, and your mother working in human resources and banking;
(b)You came to Australia at the age of 17 in 1999 to pursue your further secondary school studies. You have continued to maintain close relationships with your parents and your mother has attended most days during the course of your trial;
(c)On coming to Australia, you attended Taylors College in Year 11 and what is referred to as a Foundation Course at Latrobe University for
Year 12, after which you completed two years of a business marketing degree at the Melbourne campus of the Queensland University, but unfortunately performed poorly and left to pursue a career in real estate;
(d)You were married for a few years in the early-2000s, but considered the marriage failed because you felt inadequate being married to a very career-minded woman. You had two further relationships lasting for about a year, and more recently, commenced a relationship with “Bonnie”, who has remained supportive of you to date. You did give evidence at the trial that Bonnie was on a Disability Support Pension, causing her to be sexually inactive with you;
(e)After quitting the business marketing degree, you pursued a career in real estate and worked in security and gaming, while studying for the appropriate qualifications in real estate. You have successfully worked in real estate since 2008 and you consider that working as a real estate agent has enhanced your self-esteem and you consider that you have been a productive employee in the real estate industry in the six or seven years leading up to your offending;
(f)When working in security and gaming, you did work in such places as Bar 20, Men’s Gallery and various brothels such as the Daily Planet. Over a period of time, you obtained a fascination and interest with what these girls were doing in the sex industry and over time, you sought out your satisfaction of your sex life through the attendance at brothels and the use of escorts;
(g)You smoked cannabis for about six months in 2008 and 2009, but did not like the effect of such drug and approximately six years ago, commenced using ice in the company of friends and was using such drug approximately two times a week leading up to the offending. You described that such drug heightened your sexual desire, but it caused erectile dysfunction;
(h)You also described to Dr Deacon the circumstances around the kicking offence in 2007. Apparently this occurred when working in security at a night club, and as a result, you lost your security licence which caused difficulty in finding work;
(i)Subsequent to the offending, you were interviewed and charged on
3 May 2014, at which you were remanded in custody until
26 August 2014, on which day you were bailed on various conditions.
I was informed by counsel for the prosecution that you were remanded for 116 days;
(j)Upon being bailed, you came under the care of the psychologist,
Dr Michal King, who initially had a consultation with you on 4 September 2014. According to Dr King, you were medically referred to him to seek assistance to “reformulate your life following a period of instability which had included the use of illicit substances";
(k)As at the date of his report, 28 November 2014, you had been attending approximately on a weekly basis. Over this time, there had been random urine checks for drugs and Dr King reports that there has been no evidence of drug use;
(l)Dr King also describes how you have had the support of your mother and father, but also have been the subject of what is described as "intense media attention", given the nature of the original accusations. At that time, Dr King notes that you had been unable to continue on your previously successful path in real estate, which in turn, had a negative effect upon your economic life and your mood state;
(m)Dr King describes you as someone who is a “significantly quieted man” and who, at that time, was dramatically remorseful and ashamed of his involvement in a situation which has led to the previous charges.
21 During the plea, your solicitor also called Ms Amanda Brown, who described herself as a senior clinician in the area of drug and alcohol counselling, for which she has a specialist qualification. Ms Brown described how you initially attended on 22 June 2015, on referral from your solicitor and, thereafter, you have had 16 appointments, initially weekly appointments, sometimes with gaps of three to four weeks between appointments.
22 Ms Brown described that the publicity and the alleged offending has been a real “wake-up call” for you and that you have been very determined to overcome any particular drug problem. She describes that over the period of time that she has been treating you, you have rendered negative urine tests and that you have showed no signs of being involved with drugs. Ms Brown is prepared to continue to treat you as required.
23 Over a period of time she has noticed that you have had periods of depression and low mood but, ultimately, considered that you did not require any further engagement with specialists. Ms Brown last saw you on 9 February 2016.
24 It is your desire to re-establish yourself as an estate agent and return to that industry.
Submissions made by your counsel in respect of your plea in mitigation:
25 Your solicitor made the following submissions in respect of your plea in mitigation:
(a)Obviously enough, the plea to the charge of theft must be viewed as a stand-alone charge, given your acquittal in relation to the other seven charges on the indictment. Furthermore, so it was submitted, if the charge of theft had been at all times a stand-alone charge, it would have been dealt with in the Magistrates’ Court in a summary manner or, more likely, be the subject of a Criminal Justice Diversion Program, as governed by s.59 of the Criminal Procedure Act 2009. If such a diversion had occurred, you would have had no record in relation to the theft;
(b)You have no prior convictions for any dishonesty offences and, in particular, no prior convictions for any theft offences. Your only court appearance was in relation to the kicking offence, for which a conviction was not entered and you were placed on a good behaviour bond. This offence occurred during such time that you were working in security;
(c)That you have pleaded guilty to such offence and, according to your solicitor, have always indicated you wanted to plead guilty to such offence, that is, the theft. Of course, it must remembered that the plea of guilty was only entered when you were arraigned at the beginning of your trial;
(d)Although it is clearly conceded that the offence took place in circumstances where you were trespassing in a suburban property and using illegal drugs, the theft of the $500 was in lieu of what you perceived to be the theft of your drugs by the complainant of roughly the same value. Furthermore, the theft of the telephone was disposed of shortly after leaving the uninhabited premise to avoid the involvement of the minder who you knew to be in close proximity to the house;
(e)That you are remorseful, not only in relation to the subject offending, but indeed, your use of drugs, and in particular, your use of ice. Since being on bail, you have actively sought treatment from a treating psychologist and also have actively pursued treatment from the drug rehabilitation consultant, Ms Amanda Brown;
(f)Importantly, you were remanded in custody for 116 days after your arrest in relation to all the charges on the indictment. Again, it is submitted that if the offence of theft was a stand-alone charge, you would not have been remanded and that the period of 114 days must clearly be seen as “dead time”, which can be taken into account in coming to an appropriate sentence. Reference was made to R v Renzella [1997] 2 VR 88;
R v Kotzmann[1999] 2 VR 123 at 137; Warwick v R [2010] VSCA 166.
26 Your solicitor submitted than an appropriate disposition would be a finding of guilt without conviction. When queried by the court whether you would be prepared to undertake various conditions if a disposition was made under s.75 of the Sentencing Act, I was informed by your instructor that such would be the case.
27 Counsel for the prosecution submitted that although there was a plea of guilty, such plea did not occur until your arraignment during the empanelment of the jury process. Prior to that there had been no offers to plead guilty in relation to this particular offence.
28 Furthermore, counsel pointed out that the diversion program, as contemplated by s.59 of the Criminal Procedure Act 2009, is only open in the Magistrates’ Court and is dependent on consent being given by the prosecution, which would not be forthcoming in any event.
29 Counsel for the prosecution tendered a sentencing snapshot in relation to theft over the period from 2009/10 to 2013/14. Both counsel accepted that such statistics are of little assistance, partly because no distinction is drawn between sentences following a plea of guilty and sentences following a trial. Furthermore, there were many differences in the circumstances of the thefts and the amount of money stolen.
30 It was further submitted by counsel for the prosecution that there were what was referred to as “aggravating circumstances” in relation to the subject offence of theft. They were said to be:
(a)You were illegally in the vacant premises at the time of the offending;
(b)It was in the early hours in the morning when the driver was directed to be further away, presumably to mean he was not in the vicinity when the theft occurred;
(c)At the time of the theft, the complainant was still restrained to some extent and unable to get assistance quickly;
(d) There was illicit drug use at the time;
(e)According to the complainant, there were children’s photos on one of the cameras.
Conclusions
31 As I have already recorded, I accept that the extent of the theft consisted of stealing $500 which had been paid by you- initially $350 and later $150- and one telephone. Furthermore, although I accept the drugs had been used during the last couple of hours prior to the theft, the theft did not involve an opportunistic chance to buy further drugs, but rather occurred in circumstances where you considered that your seven to eight points of ice had been stolen by the complainant and that the sum of $500 was compensation. Similarly, the theft of the telephone, I accept, was to help avoid the risk of being confronted by the minder after leaving the premises.
32
True it is that illicit drugs were being consumed by you and the complainant,
I do not consider that such, in the circumstances, can be appropriately viewed as an aggravating factor. The theft occurred in this context, it was not made worse by the fact that you were consuming drugs. Similarly, accepting your version of events as to what occurred in the second period, the fact that the complainant was partially restrained at the time of the theft, is not to the point as she consensually agreed to be in that state. Also, I do not consider the driver being some two houses away, an aggravating factor. It also must be remembered that the complainant said she had two phones, one of which contained the children’s photos, and it is unclear whether this is that phone or not.
33 You have no prior convictions or findings of guilt in relation to any dishonesty offences. I also accept that, in this context prior to the subject offending, you had achieved a degree of self-esteem, that you were a successful real estate agent, and that you well appreciate that a conviction for theft would, no doubt, impact significantly on your ability to resume that type of work. I do consider it is of some significance that when you were charged with the original eight charges, you were remanded in custody for 116 days, which can only be viewed as dead time. As the authorities make clear, this can well be a factor to be taken into account when assessing an appropriate disposition in such circumstances such as this.
34 I also accept that you have a degree of remorse about your offending in relation to the theft and, indeed, a degree of remorse about the lifestyle that you were conducting at or around the time of the offending. You appear to have made significant inroads in getting your life back in order through your contact with the psychologist, and more particularly, seemingly at this stage at least, overcoming your drug habit through the intervention of Ms Amanda Brown, the drug rehabilitation consultant. In my view, this all bodes well for your prospects of rehabilitation and getting your life back on an even track. I also note that you continue to have, seemingly, the strong support of your partner and indeed your parents, who have stood by you.
35 It is important to keep in mind, as I frequently inform the jury, that the presiding court is a court of law, not a court of morals and it is not to the point that at and around the time of this offending, you had seen fit to commercially engage an escort for sexual services, or indeed, the subject of your theft was an escort who performed sexual services.
36 According to the prosecution, and indeed the record before me, there has been no indication by you prior to your arraignment, that you would plead guilty to the theft charge. I tend to the view that although you may well have intended to plead to the theft charge prior to that date, it was a forensic decision made by your legal advisers that such plea of guilty be made to the jury in the context of pleading not guilty to the other offences. However, it should be added that a plea of guilty to the theft charge at an earlier time would not have avoided the committal hearing, or indeed, made any material different to the length and nature of the trial.
37 Even though you considered that you had some “basis” for the theft that you committed, it cannot be gainsaid that you stole from the complainant. I do accept that given the amount of money involved and the circumstances surrounded the theft, I consider such theft to be in the lower spectrum of that type of offending. Furthermore, as I have indicated, I consider that you have reasonable prospects for rehabilitation, given your commitment to attend both the psychologist and drug counsellor, together with the support of your partner and parents.
38 Taking all these matters into account, I do not propose to convict you, but rather, adjourn the proceeding for a period of 12 months upon certain conditions. I also intend to make a compensation order in favour of the complainant. To this end, I have put a value of $200 on the valuation of the phone.
39 Accordingly:
(a)Pursuant to s.75 of the Sentencing Act 1991, the court being satisfied that you are guilty of the offence of theft, adjourns the proceeding for a period of 12 months, to 26 April 2017, and releases you on you giving an undertaking that you will comply with the following conditions:
(i)That you will attend this court if called upon to do so during the period of the adjournment and if the court so specifies at the time to which the further hearing is adjourned;
(ii)That you be of good behaviour during the period of adjournment; and
(iii)That you pay to the County Court the sum of $200 for payment to a charitable community service to be chosen by the court.
(b)That you are to pay compensation to the complainant in the sum of $700, being the sum of $500 stolen from her purse, together with a further sum of $200 representing the estimated value of the stolen phone.
Yes.
MR MELASECCA: May it please Your Honour.
MS FITZPATRICK: As Your Honour pleases.
HIS HONOUR: Now, as I would understand it, Mr Melasecca, your client will have to formally agree to those terms.
MR MELASECCA: Yes, he'll - I'll - might I approach my client, Sir?
HIS HONOUR: By all means, yes.
MR MELASECCA: Yes, he does agree to those terms, Your Honour.
HIS HONOUR: Yes, very well. Yes, your client has to sign it. We will - I will just temporarily adjourn.
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