Director of Public Prosecutions v Jiang

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR 15-01251

DIRECTOR OF PUBLIC PROSECUTIONS

NICK JIANG

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	14 October 2015
DATE OF SENTENCE:	16 October 2015
CASE MAY BE CITED AS:	DPP v Jiang
MEDIUM NEUTRAL CITATION:	[2015] VCC 1494

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW

Catchwords: Sentence – Pleas of guilty – Aggravated burglary – Recklessly cause serious injury – Context of offending collection of debt - Level of pre-planning – Young offender – No criminal record alleged
Cases Cited: Boulton & Ors v The Queen [2014] VSCA 342

Sentence:Combined imprisonment and CCO – 12 months’ imprisonment with CCO of 2 years’ duration with mandatory and program conditions – Pre-sentence detention declared 182 days – s.6 AAA Sentencing Act 1991 – Ancillary orders Disposal and Forensic sample orders
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Wallace	Solicitor for Public Prosecutions
For the Offender	Ms T. Hartnett	Galbally & O’Bryan

Pages 1 - 9

HER HONOUR:

Nick Jiang you have pleaded guilty to one charge of aggravated burglary which has a maximum penalty of 25 years’ imprisonment and one charge of recklessly causing serious injury which has a maximum penalty of 15 years’ imprisonment. The maximum penalties reflect the seriousness with which Parliament regards these offences.
The form of aggravation pleaded to in respect of the aggravated burglary is possessing of an offensive weapon, namely a machete.
At the time of the offending you were 21 years old and you are still 21. The victim was 20.
In the months leading up to the offence, the victim had been buying methamphetamine or ice from you and owed you $2300. However, I am not dealing with you for a trafficking charge as well, albeit that this is the background to the matters before me.
In the days leading to the offences you had sent text messages to the victim about the debt.
On 2 March 2015 the victim was at home alone and was sleeping, when at about 8.00pm, you and two other males entered the house. You were armed with a machete. You went to the victim’s bedroom and demanded money owed to you. The victim woke up and said he did not have the money. You then attacked the victim with the machete as he lay on the bed, striking his left leg which caused no injury and then striking his right lower arm which caused a small cut. Then you slashed his left hand and wrist. This resulted in serious injury. Soon after this, you and your co-offenders left the house.
The victim placed a towel on his bleeding arm and called for an ambulance. The victim’s girlfriend arrived home shortly afterwards and helped the victim.
The victim was taken by ambulance to the Western Hospital where his injury was surgically repaired. The victim had suffered a serious laceration of his left hand involving damage to the flexor tendons of the wrist and the 4^th and 5^th fingers and to the ulnar nerve and artery. He reported a full loss of movement to the left hand and a loss of sensation to the ring and little fingers. He will require ongoing rehabilitation to regain the full use of his hand.
Police became involved and on 17 April 2015 they arrested you at your home and conducted a search where weapons were seized. You took part in a record of interview on that day and admitted knowing the victim and being aware of the offending against him. You also admitted that the victim owed you money but denied that this was for drugs. You denied any involvement in the aggravated burglary and assault, and refused to provide a forensic sample in the form of a buccal swab when asked to do so.
You were then placed in the police cells and you admitted to a covert operative that you had chopped the victim’s arm with a machete over a drug debt, and had spoken to the victim since. The prosecution opening does not record what this conversation was about and I do not speculate about this aspect.
Mr Jiang, your offending is most serious. You entered the victim’s premises, where he was entitled to feel safe, and you went in numbers armed with a machete. You attacked the victim whilst he was in a completely defenceless state, causing him serious injury. You are fortunate that you are not facing the even more serious offence of intentionally causing serious injury as I must say that it beggars belief that you could not have contemplated causing the victim anything other than a serious injury in behaving as you did. However, I sentence you on the basis of you having a reckless mindset and of the applicable penalty for this lesser offence.
Having said this, I regard this as a serious example of the offence of recklessly causing serious injury. Attending the house in numbers and with a level of pre-planning which was necessarily involved are aggravating features of your criminal conduct. You behaved like a thug, trying to collect money for your drug sales, like some gangster from a B grade movie quite frankly. The injury which you caused is dreadful. The photos of the wound are most distressing. You have nothing to be proud of Mr Jiang. Your actions were shameful and cowardly.
Your offending calls for a punishment which is just in all of the circumstances, and your conduct must be denounced. I must place strong weight on the principle of general deterrence in a bid to deter others who are tempted to behave as you have.
You are 21 years old and have no prior convictions. These are both matters which count in your favour. You have been in custody since your arrest on 17^th April 2015, so you have been on remand for about 6 months now. There are no subsequent or pending matters. Time in custody has been especially difficult because a good deal of it has been spent in lockdown conditions. You were locked in your cell when the riots began and these caused you a good deal of fear. Perhaps this might help you appreciate what your victim has gone through. In any event, gaol has been a salutary experience for you and I factor in that time in gaol thus far has been far harsher than might have otherwise been the case because of the lockdown and its consequences for you, including being deprived of programs that you had embarked upon or wished to embark upon.
You have a history of binge drinking in your teenage years and you commenced cannabis use when you were 15 and used ecstasy when 16. You used cocaine when you were 20. I was told that you used cocaine before the offending but this did not contribute to your conduct. You were not addicted to any substance as at the time that you committed these offences. If you had been, this would not have been mitigatory but it may have helped explain your actions. In the absence of a drug problem, the only explanation for your actions is that you were prepared to behave as you did in a bid to collect a drug debt, or punish someone who could not repay you. I regard your moral culpability as high.
In your favour, you pleaded guilty at the earliest opportunity which entitles you to a significant discount in the sentence you would otherwise receive as you have saved the witnesses, especially the victim, the time and trouble of giving evidence and you have saved the community the time and expense of contested proceedings.
In an exemplary plea, which is her custom I must say, Ms Hartnett told me that you were yet to develop heartfelt remorse for your victim. This is most unfortunate, Mr Jiang, because what you did to him was barbarous and has caused him a great deal of suffering. You are no doubt regretful of your situation, that is the situation you have placed yourself in, and I hope that in time, and with the benefit of developing maturity, you grow to appreciate and regret the harm that you have caused another human being. Such insight will assist with your rehabilitation. However, that being said, you have taken responsibility for your actions at an early stage which is to your credit and entitles you to a significant discount to any sentence that might otherwise receive, as I have already said.
I take into account your background. You were born in China and your parents divorced when you were very young. You came to Australia when you were 8 years old. Your father remained in China and you had a level of contact with him over the years until you were 15, when unfortunately, your father passed away. Ms Hartnett told me that you visited your father every 18 months or so and when you did, you were treated to a lavish lifestyle, which contrasted with your life at home where the focus was reward for hard work. You were a strong student but things started to fall apart for you when you were in Year 9 because of bullying at school the previous year, and because of your father’s death and also because you met some peers who were a negative influence on you at about that time.
Mr Jiang, it may be that you thought that your father’s lavish lifestyle was something you could achieve by illegal means, but clearly it is not. It may be that the people you were mixing with at the time of the offending gave you a sense of belonging and identity, but these are not the influences which will serve you well in life. Do you understand that?
You have strong, loving family support which is a positive factor in your rehabilitation. Your mother and stepfather have been with you through thick and thin. They are still highly supportive of you. You are very lucky to have this support, Mr Jiang, as many people who commit offences and appear in this Court do not. They have worked tirelessly to get you back on the rails. You owe it to them and to yourself to do so. They will welcome you back to their home upon your release from gaol, which is another protective factor in respect of your rehabilitation.
You have worked in the past at various food outlets or else at a call centre when you were about 20. You were a student of some ability and I was pleased to hear that you intend to return to school upon your release to complete your education. With your brains and language skills, you have the capacity to make most positive contributions to the community. Do you understand that?
I accept that you have made some genuine efforts to reform whilst on remand, and it is to be hoped that you continue to make such efforts.
You are still a young man and I must do what I can to maximise the chances of your complete rehabilitation.
I also take into account that this will constitute your first time in gaol.
In view of these matters, your early plea of guilty, your efforts to reform over the past 6 months, your strong family support and lack of criminal history or subsequent matters, but also bearing in mind your criminal conduct and the context in which it occurred, I find that your prospects of rehabilitation overall are fairly good.
I place fairly minimal weight upon specific deterrence and the need to protect the community. You have the intelligence to know that gaol is no place for you if you want to have a decent future. Hopefully, some maturity is starting to kick in which will also help you to make a positive and meaningful contribution to the community.
In 2012, the Court of Appeal of Victoria made it clear that sentencing practice for confrontational aggravated burglaries was inadequate and that greater heed should be paid to the maximum penalty which had been increased by Parliament in 1997 from 15 years to 25 years imprisonment. Since then, we have had the decision of Boulton & Ors v The Queen [2014] VSCA 342 in which a full bench of the Court of Appeal delivered a guideline judgment where it was held that community corrections orders had dramatically changed the sentencing landscape and that these could be crafted in appropriate cases to address all relevant sentencing principles. Where the offences were too serious for this to be achieved by a Community Corrections Order alone, this could be achieved in an appropriate case, by a sentence of imprisonment of up to 2 years, combined with a CCO.
On your behalf, Ms Hartnett submitted that a CCO combined with an immediate term of imprisonment was appropriate and the prosecution agreed. Ms Hartnett most properly agreed that time served was not adequate, which was also the submission of Mr Roper on behalf of the Crown. If you had a criminal history or were older, you might well have been facing a far heftier gaol term, Mr Jiang. Make no mistake, if you re-offend, you will be spending ever increasing periods of your life in gaol.
Please stand up, Mr Jiang.
You are convicted in respect of each of the offences and I make the disposal order sought by the Crown which is not opposed by you.
I make a forensic sample order in the nature of a buccal swab of saliva from the mouth because of the seriousness of the offences, because you do not oppose the order, and because it is in the public interest to make the order. I warn you that if you do not co-operate in the taking of this sample, then the authorised officer may use reasonable force to obtain it.
I intend to sentence you to a gaol term in addition to a community corrections order. I will first tell you about the community corrections order that I propose as I can only make such an order with your consent, so please listen carefully to what I am about to say.
I intend to place you on a community corrections order for a period of two years. As you will have served a gaol term, I do not propose to require you to perform unpaid community work. When you are released I want you to pursue your education, as you have indicated you would do.
The mandatory terms that apply to all community correction orders are:
You must not commit any further offence for which you could be imprisoned during the time that the order is in force;
You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;
You must report to, and receive visits from, the Secretary to the Department of Justice and with his or her delegate;
You must report to the Werribee Community Corrections Centre before 4 pm within two clear working days of your release from gaol;
You must let a community corrections officer know within two clear working days of you changing your address or job;
You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice or his or her delegate; and
You must obey all lawful instructions from and directions of the Secretary to the Department of Justice or his or her delegate.
The conditions that apply in addition to the mandatory terms listed are:
Supervision
43You must be under the supervision of a community corrections officer for a period of 2 years, that is, for the entire duration of the order.
Treatment and Rehabilitation
You must undergo assessment and treatment, including testing, for drug abuse or dependency as directed by the Regional Manager.
Although not recommended. I require you to undergo mental health assessment and treatment including, but not limited to mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, if necessary, as directed by the Regional Manager. The reason for this condition is to explore whether there are some demons such as the loss of your father, or underlying anger issues that you need to deal with, Mr Jiang.
You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager.
Judicial Monitoring
You must attend the Melbourne County Court on Friday 20 May 2016 at 09:30 am to be reviewed by me, and you will be required to attend for further reviews by me from time to time for the duration of the community corrections order.
Mr Jiang, having heard all of those proposed conditions of the two community corrections order, do you consent to the terms and conditions of the order?
OFFENDER: Yes, I do.
HER HONOUR: I should tell you that if you do not comply with all of the requirements of the community corrections order then you will face breach proceedings before me. You will then be sentenced in relation to the breach and you will be re-sentenced in relation to the charges. In which case you may well be sentenced to a further period in gaol. I would regard a breach of the CCO as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.
Do you understand this?
OFFENDER: I do.
HER HONOUR: Do you maintain your consent to the order?
OFFENDER: Yes, I do.
HER HONOUR: Therefore, in relation to the charges, you are convicted and sentenced to a community corrections order in the terms and conditions that I have just set out which will be in combination with the gaol term of which I will advise you in a moment. But at this stage I ask that Ms Hartnett approach the dock and assist you with the signing of the community corrections order.
In addition to the community corrections order, I sentence you to 12 months’ imprisonment and I declare that you have already served 182 days as part of this sentence. You have got about six months to go.
57If not for your pleas of guilty, I would have sentenced you to a total effective sentence of 4 years’ imprisonment with a non-parole period of 2 years’ imprisonment.
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[2015] VCC 1494

16 October 2015