Director of Public Prosecutions v Ka Ming Chong

[2021] VCC 1933

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-21-01378
Indictment No: L11325004

DIRECTOR OF PUBLIC PROSECUTIONS

v

KA MING CHONG

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	4 November 2021
DATE OF SENTENCE:	2 December 2021
CASE MAY BE CITED AS:	DPP v Ka Ming Chong
MEDIUM NEUTRAL CITATION:	[2021] VCC 1933

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              One charge of kidnapping – 28-year-old male offender who orchestrated the kidnapping and hired a co-accused, Ms Lu, to lure the victim into moving furniture so that he could be kidnapped and also hired a team of three people to carry out the kidnapping and assault victim – financial motive for the offending, in that the offender wrongly believed that the victim, a truckdriver, had misappropriated illegally-imported cigarettes valued at approximately $500,000 – victim brutally assaulted by three hired males, who then bound his hands and feet and held him captive in the rear of his own truck, which was driven from the scene – offender believed he was going to die and escaped from the rear of the truck – offender is a Malaysian national who had been in Australia as the partner of his wife who had a student visa – limited criminal history – plea of guilty during COVID pandemic – period on remand during period of pandemic restrictions – risk of deportation.

Legislation Cited:      Migration Act 1958 (Cth)

Cases Cited:Guden v The Queen [2010] 28 VR 288; Lowe v The Queen (1984) 154 CLR 606; The Queen v Hildebrandt [2008] 187 A Crim R 42; Sikoulabout v The Queen [2018] VSCA 268;

Sentence: Total effective sentence of 7 years and 8 months’ imprisonment, with a non-parole period of 5 years and 6 months. s6AAA: 10 years and 6 months’ imprisonment with a non-parole period of 7 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D Plummer	Solicitor for the Office of Public Prosecutions
For the Offender	Mr G Hughan	Tao Jiang Lawyers

HER HONOUR:

1Ka Ming Chong, you have pleaded guilty to one charge of kidnapping, which carries a maximum penalty of 25 years’ imprisonment.  You have also consented to a summary charge being heard in the County Court and have pleaded guilty to it.  It is a charge of possession of an imitation firearm, which carries a maximum penalty of two years’ imprisonment or 240 penalty units.

2The circumstances of your offending are detailed in the Summary of Prosecution Opening (Exhibit “A”).

3In essence, you had been involved in the illegal importation of cigarettes.  These were supposed to have been contained in a package which had been delivered to an address by your victim, Mr Yu-Wen Chen (known as “Tom” Chen), who was employed as a truck driver.  When you and unknown associates checked the package, you discovered that the cigarettes were missing and you (wrongly) considered your victim as being in some way responsible.

4You knew your co-accused, Ms Wenting Lu (“Lu”), as she was a receptionist at an online escort agency which was regularly used by you.  You used to chat with her via WeChat and you became aware that she apparently needed some furniture moved.  In a series of messages over a period of approximately one week prior to the offending on 24 May 2020, you asked her to contact the victim to ask if he would move a bedframe for her.  You gave her the victim’s WeChat account and she contacted him with a request using the name of “Cindy”.  Amongst the messages between yourself and Lu was one on 18 May 2020, where you indicated that two teams of people were interested in this job, one being “blacks” and other “Arabs”.  You told Lu this was necessary “[b]ecause need to capture and kidnap him for a few days until he confesses who is the instructor. Quite brutal”.  Thereafter, Lu built up a relationship of trust with the victim via a series of messages and ensured that he would be alone when he came to move the bedframe on Sunday, 24 May 2020, for which he was to charge $120.  He was to use his employer’s truck and had the permission of his employer to undertake this job privately outside his normal employment.  You asked Lu to confirm the victim’s car registration and to ensure the bedframe was downstairs when he arrived to collect it.

5On 24 May 2020 at 12.45pm, the victim arrived at the address appointed by Lu, 60 A’Beckett Street, Melbourne.  After the bedframe was loaded onto his truck, via WeChat, she sent to him a delivery address supplied by you, namely, 4 Weemala Court, Meadow Heights.

6The victim drove to the delivery address, where he arrived at about 1.45pm.  CCTV footage shows that you had arrived nearby in a black BMW and had stood on the footpath about 15 metres from Weemala Court, smoking cigarettes.  After the victim delivered the bedframe, he returned to the back of his truck.  A Toyota vehicle had parked directly behind him.  This vehicle contained three men who had been hired by you.  The three men approached the victim.  One had a baseball bat, with which he struck the victim, who raised his arm to protect his head.  Shortly thereafter, he fell to the ground and covered his head with his hands as he was punched, kicked and hit with the bat.  He estimates that, overall, he was struck twenty to thirty times by the three assailants, mostly to his upper body, arms and head.  When the victim initially resisted, he was hit with more force, so he gave up protecting himself.  He was very dizzy and thought he was going to die.  The three men then grabbed him by the arms and legs and put him into the back of the truck, where his hands were bound together with white plastic cable ties, as were his ankles.  The victim asked why they were doing this to him and one of the men told him to “[s]hut up, you will meet someone later”.  He was then left alone in the back of the truck, which drove off from the delivery address.  You left the area in a black BMW shortly after the victim was put into the rear of the truck.

7Inside the rear of the truck, the victim noticed that the Toyota vehicle was following the truck.  He ultimately managed to loosen the cable ties which bound his hands together, but noticed that fingers on his left hand were broken because they were out of place.  He pulled the tie off, which hurt a great deal.  He then managed to take off his boots and slipped his feet out of the cable ties which bound his feet together and put his boots back on.  He lay down and looked through a gap in the truck door and, when he was sure that the truck was on a main road, he squeezed his body through a gap in the door and jumped out of the truck.  The Toyota vehicle behind was tooting the car horn. 

8The victim managed to flag down some assistance and was taken by ambulance to the Royal Melbourne Hospital.  There, he was found to have suffered the following injuries: a fractured elbow, a displaced fracture of two fingers, defensive wounds to the back of the left forearm, bruising to the head and arms, and swelling and pain to the spinal region.

9After the victim had escaped, at about 3:00pm that same afternoon you met with Lu and gave her $500, which Lu understood to be payment for her bedframe.  Lu had asked you if you were aware that a car had been following the victim from the apartment where he had picked up the bedframe and you told her “that was my people”.  You also told her that the victim had jumped out of the truck and that you knew this was because ”I was there”.  You told Lu to delete all message history between the two of you.  A few days later you again contacted Lu on WeChat and asked her to come and work for you at your company called Bruvver’s Trading.  Lu stated that she was interested in the job and, subsequently, at your request she attended your new office in Bourke Street to do some administrative tasks.  On that day you told Lu that you had to go to meet “the people who did the job”.[1]  On 2 June 2020 police executed a search warrant at Lu’s residence and seized various items, including her iPad.  Examination of it revealed the WeChat conversations between yourself and Lu in Mandarin during the leadup to the offending and these were subsequently translated into English. 

[1]        First Statement of Wenting Lu, dated 19 July 2021 (12:56pm) at [26]-[28]

10On 2 June 2020 you were arrested and police executed a search warrant at your home.  During that time police located an imitation firearm which is the subject of the summary charge to which you have pleaded guilty.  You were interviewed on that day and answered “no comment” to the allegations regarding kidnapping, as is your legal entitlement.  As far as the imitation firearm is concerned, you stated that it was a toy gun which you had purchased online “just for collection”.

11You were remanded in custody on 2 June 2020 and have remained there until the present time. 

12Lu was charged with kidnapping and remanded in custody on 3 June 2020 but, nine days later on 12 June 2020, was granted bail.  Her matter proceeded by way of straight hand up brief to this Court on 19 November 2020 and, following a sentence indication hearing on 15 June 2021, she pleaded guilty to the offence on 18 June 2021.  At a plea hearing on 5 July 2021 she indicated her willingness to cooperate with police by providing a statement in relation to your role in the offending.  The prosecution described the value of her assistance to law enforcement authorities as being “less than moderate”.  Nevertheless, she was entitled to a discount on her sentence for that assistance, as well as for her plea of guilty.  Her plea was not at the earliest opportunity, but over a year after the offending occurred, and, as previously stated, after an application for a sentence indication had been made by her.  On 4 August 2021 she was convicted of kidnapping and sentenced by myself to a period of 18 months’ imprisonment with a non‑parole period of 9 months. 

13In my sentencing remarks, I found Lu to have a crucial role in enticing the unsuspecting victim to be dealt with by you and that she had a financial incentive to do so.  Her financial incentive involved keeping on good terms with yourself so that you would continue to use the services of the escort agency where she worked as a receptionist and earned 10 to 15 per cent on all booking fees.  You were a regular client who used those services once or twice a week for an amount of $500 to $1,000 for each booking.  In addition, you had offered her $10,000 to do the job of luring the victim into your hands.  Finally she was hoping to get employment with you in your new international trading business known as Bruvver’s Trading.

14You conducted a committal hearing on 24 June 2021 at which your counsel, Mr Hughan, cross-examined the victim.  You were committed to stand trial on 24 June 2021 and entered a plea of not guilty at that point.  You kept a close eye on what was happening in relation to your co‑accused Lu, both at her sentence indication and plea hearings.  You had become aware on 5 July 2021 that Lu’s plea hearing had been adjourned as she had indicated a willingness to cooperate with police by providing a written statement in relation to your role in the offending.  On 22 July 2021 your legal representative indicated your intention to plead guilty to the charge of kidnapping and the summary charge of possessing a prohibited firearm.  Later on that same day the prosecution served the statements made by Lu to police.  On 23 July 2021 you were arraigned and entered pleas of guilty.

15You are presently aged 30 years having been born in October 1991.  You come before the Court with a limited prior criminal history which you have admitted.  On 6 December 2019 you appeared before Broadmeadows Magistrates Court on one charge of failing an oral fluid test within three hours of driving and one charge of driving while disqualified.  On that date, without conviction, the charges were adjourned to 5 March 2020 on condition that you complete a first stage of a behavioural change program.  Your licence to drive was cancelled and you were disqualified from obtaining a licence for a period of six months.

16In a plea on your behalf by Mr Hughan, the Court was told that you were born in Malaysia and were aged 28 years at the date of this offending.  You are the only child of your parents, who separated when you were very young.  You remained living with your mother, whom you described as having been physically and psychologically abusive towards you when you were growing up and you had only sporadic contact with your father, before he died in 2019.  Your mother’s abuse of you caused you to regularly abscond from home and associate with negative peers and generally display oppositional and aggressive behaviour towards others.  You began drinking alcohol when you were approximately 15 years of age and used cannabis for a short time when you were 18 years old.  You developed an ongoing dependence upon alcohol and Mr Hughan told the Court that you would drink two bottles of whisky a week and this continued right up until the time of your arrest.  In addition, in early 2020, you began using “ice” and would use it, on average, once a fortnight up until the time of your arrest. 

17Apparently you attended primary school in Singapore and middle school in Malaysia, but truanted and did not apply yourself.  After leaving school, you attended a technical school and qualified as a hairdresser and worked in that industry for seven years.  You then completed a personal training course and worked as a personal trainer for about four years.  This took place in Taiwan where you moved to live in your early twenties.  In 2017 you married Ms Elysia Eui, whom you had met whilst in living in Malaysia.  Ms Eui obtained a visa to undertake study in community services in Australia.  You both decided to move here to start a new life and your counsel stated that you “piggy backed” on her visa application as a secondary applicant. 

18After arriving in Australia in 2017, you worked for a couple of years in casual jobs as a kitchen hand and Uber driver and, then, in 2019 you and your half-brother (who was born to an earlier relationship of your mother) decided to set up an import/export business, Bruvver’s Trading.  Mr Hughan stated that this business was only in its embryonic stage and had not commenced trading at the time of the offending for which you must be sentenced.  It was intended that this business import legal items from Asia.  He stated that, although you were clearly involved in the illegal importation of cigarettes which led to you committing the offence of kidnapping, this was not part of the business intended to be conducted with your half-brother.

19Mr Hughan stated that your marriage to Ms Eui is now over.  She has commenced a new relationship and instituted divorce proceedings.  Apparently, you and Ms Eui were experiencing financial difficulties at the time of your offending.  Notwithstanding such difficulties, you were spending considerable sums on the online escort agency services where your co‑accused, Lu, worked as a booking agent. 

20Your counsel told the Court that you still have a troubled relationship with your mother, although she did travel to Australia from Malaysia in order to visit you in custody and then became stranded here for a time during the lockdown occasioned by the COVID‑19 pandemic.  He stated that you had had some visits from your estranged wife and mother for a brief period in April and May 2021 when contact visits in prisons were possible. 

21Mr Hughan stated that, since being remanded in custody on 2 June 2020, due to being moved within the prison system you have undergone mandatory periods of isolation in quarantine relating to measures put in place to control the potential outbreak of COVID-19 in prisons.  These have comprised three periods of 14 days each, together with two shorter periods of three days and eight days respectively.  He stated that, from September 2020 to July 2021, you were working in custody as a hairdresser, usually for two hours each day on four days per week.  However, in August 2021, you were the subject of a physical assault and harassment by prisoners at Barwon who were endeavouring to pressure you into joining a gang.  You asked to be moved for your own protection and were subsequently placed in a separation unit and, thereafter, transferred to Hopkins and then to Ravenhall, where you are currently held in protective custody.

22Mr Hughan agreed that it would be appropriate to seek confirmation from Corrections Victoria in support of the instructions which you had given him concerning your experience as a remand prisoner.  In response to a request from the Court, an affidavit from Jennifer Ann Hosking, Acting Deputy Commissioner, Corrections Victoria, sworn on 24 November 2021 was supplied to the Court.  This has been marked today as Exhibit “D”.  The affidavit confirms that you have been moved on quite a number of occasions within the prison system and undergone multiple periods of isolation in quarantine as part of Corrections Victoria’s COVID-19 response.  It does not confirm that you were the subject of physical assault and harassment in August 2021 but did note that, on 13 January 2021, you were present at an incident where several prisoners assaulted each other, which resulted in you being moved to a management unit whilst the incident was investigated.[2]

[2]Exhibit “D” paragraph 26

23In a meeting with a sentence management panel concerning the incident, you had claimed that you were walking up a set of stairs towards a group of prisoners when one of them raised a fist at you and you raised your fist to defend yourself, but did not punch anyone as prison officers intervened.  You claimed not to know why the assault occurred.  The panel challenged your account and indicated that you should remain separated for a further seven days.[3]  At a subsequent meeting on 27 January 2021, the panel noted that CCTV footage showed that you were involved in the incident but the panel indicated that that you would be cleared back to the mainstream unit.  You had been asked whether you had any issues with being placed back in a mainstream unit and you stated that you did not and were happy to return to a mainstream unit.[4] 

[3]Ibid. paragraph 27

[4]Ibid. paragraph 28

24The affidavit states that, after you were transferred back to a mainstream unit, on 17 March 2021, you stated that you had decided not to work and, on 25 March 2021, you asked that your security rating be lowered.  It was reported that you got on well with most prisoners, were polite to prison officers and often translated for other prisoners and were willing to help out when asked.[5]  Subsequently, on 2 June 2021, you indicated to a case management review committee that you now wanted to work and, on 9 June 2021 were placed in work as a barber in a mainstream unit.  Thus, it is not quite accurate to say, as the Court was told, that from September 2020 to July 2021 you were working in custody as a hairdresser, as you appear not to have worked in that capacity from 13 January 2021 to 9 June 2021.  Your counsel, Mr Hughan, acknowledged this factor.  Nevertheless, I acknowledge that you recommenced working as a hairdresser again from 9 June 2021, but had to cease such work on 18 August 2021 because you were placed in protection.

[5]Ibid. paragraphs 32 and 33

25The affidavit reveals that on 18 August 2021 you informed a prison officer that you had concerns for your safety.  Contrary to what the Court was informed, namely that this was related to you being pressured into joining a gang, you advised a sentence management panel on 25 August 2021 that several prisoners, who had found documents in your cell relating to you having worked with the State Emergency Service, had concluded that you were working with police.  They cornered you, cut off your clothes using an improvised cutting device and placed a bag over your head and began to choke you.[6]  On 18 August 2021, you had been separated into a management unit for your safety whilst your concerns were being investigated.  On 30 August 2021, you were transferred to Hopkins Correctional Centre, which only accommodates protection prisoners. 

[6]Ibid. paragraphs 40 and 41

26I note that the panel lowered your security rating to medium due to your recent incident-free behaviour and the lack of adverse intelligence reports.  Thus, although the incident which led to your being placed in protection was not quite as conveyed to the Court, I nevertheless take into account the anxiety that such an incident would cause whilst you are in prison and the fact that it has necessitated your remaining in protection until the present time.  I here note that, on 1 September 2021, you were transferred to protection at Ravenhall Correctional Centre as you had become aware that a relative of someone who was involved in the assault incident back in January 2021 was also a prisoner at Hopkins.  This necessitated you having been temporarily separated to a management unit at Hopkins before your transfer to Ravenhall.[7]  After completing a short period of quarantine at Ravenhall, you were transferred to the Drummond Protection Unit on 12 September 2021 and, since that time, have received at least 11.5 hours per day out of your cell.[8] 

[7]Ibid. paragraphs 42 to 44

[8]Ibid. paragraphs 46 and 50

27The affidavit states that your protection status does not require restricted living conditions but may limit the number of prisoners who are available with whom to mix, in that you are typically placed with other classified protection prisoners.  Nevertheless, you are still able to access programs and services at a generally equitable level to mainstream prisoners and are provided with the same out of cell time as mainstream prisoners.[9]  The affidavit also confirmed the current Covid-19 precautions in prisons whereby personal visits continue to be only available remotely, as are non-essential programs and services, such as prisoner education and training.[10] 

[9]Ibid. paragraphs 54 and 57

[10]Ibid. paragraph 63

28On 20 September 2021, when a case management review committee met with you at Ravenhall, you were allocated a prison case officer to discuss a local plan, work and education opportunities.  However, I note with some concern that you stated that you were not interested in participating in any education programs.  Nevertheless you were referred to a range of programs, including alcohol and drug screening.[11]  Earlier, in July 2021, case management had approved your application to purchase a computer to assist you in your defence and, also, you were using it to undertake courses in Business, English and IT at Box Hill Institute.  At that time, you had been using the gymnasium and spent time playing cards, attending the pool, and walking around the prison compound.[12]  It seems to have been something of a theme during your period on remand that you were not interested in drug and alcohol programs.  Apparently, you have remained in contact with your family and friends through Zoom and telephone calls.[13]

[11]Ibid. paragraph 47

[12]Ibid. paragraphs 38 to 39

[13]Ibid. paragraph 21

29A report from Dr Michael Barth, psychologist, dated 27 October 2021 was tendered on your behalf.[14]  At the request of your solicitor he had conducted a psychological assessment of you on 5 October 2021.  He stated that you have a history of noteworthy interpersonal and behavioural problems which could be traced back to your dysfunctional childhood and these had become entrenched and intensified by your subsequent lifestyle.  This had involved overcompensating for your fragile self-esteem by displaying an overtly masculine and dominant persona to others in order to recruit attention amongst antisocial peers.  He noted that your use of substances, mainly alcohol and ice, further destabilised your emotions, relationships and your behaviour.  He considered that your maladaptive personality traits show features indicative of an Antisocial Personality Disorder but you do not meet the full DSM-5 diagnostic criteria for a personality disorder.  He considered that you do meet the DSM-5 criteria for an Alcohol Use Disorder of moderate level and also a Stimulant Use Disorder of a mild level.  He opined that your ongoing symptoms of depression and anxiety have existed in some form since your childhood and are sufficiently severe to warrant the diagnosis of an Adjustment Disorder with Depressed Mood according to the DSM-5 criteria.  He thought that your current depressive symptoms are primarily due to the stress associated with your legal situation.  These had become layered upon your longstanding poor self-esteem and had exacerbated your feelings of inadequacy and self-doubt.  He expressed concern that there was a risk that your mental state could deteriorate in the time immediately following the final resolution of this matter and that you should be provided with professional support at that time to prevent further deterioration in your mental health.

[14]        Exhibit “1”

30Dr Barth reported that you had stated that this offending occurred in the context of you experiencing financial problems and drinking heavily and using ice.  You had admitted that you had developed associations with individuals from China and agreed to covertly import cigarettes.  When you found that the cigarettes were missing from the consignment you became upset because they were worth a considerable amount of money.  You told him that there was a lot of pressure on you and you became convinced that the victim had stolen them.  Although he noted that you had expressed remorse for what you had done to your victim, he expressed his concern that you appear to have relatively limited insight into your substance abuse and that you lack any realistic plans to remain abstinent.  He considered that your impulsive decision making and poor behavioural control indicate that you have an elevated risk of relapsing when you are released into the community.  He opined that you require extensive substance abuse treatment at the earliest opportunity and also noted that, in the light of having used alcohol and illicit substance abuse as a coping mechanism for your low mood and never having consulted a mental health care professional or been prescribed psychotropic medication, you would benefit from ongoing supportive counselling to improve your general coping skills when faced with personal stressors.  He considered that you also should have treatment to improve your emotional and behavioural regulation, undertake violence prevention training and be taught to implement solid consequential reasoning skills to address your impulsive decision making.  In addition, treatment should include a lengthy period of highly intensive closely structured/supervised detoxification with regular urine screen testing to enforce prolonged abstinence. 

31It was not contended by your counsel, Mr Hughan, that Dr Barth’s report provided the necessary evidentiary nexus between an impaired psychological state and your offending so as to attract the principles in The Queen v Verdins[15] or that your dysfunctional background attracted the application of the principles in Bugmy v The Queen[16].  Rather, he relied upon them as part of your personal circumstances.  I do take into account in a general way that you have had a difficult upbringing which has left you with poor self-esteem and anxiety and depression, although it is plain that Dr Barth indicates that the severity of your symptoms at the present time are primarily related to your legal situation.  Nevertheless, I accept that it is more onerous for a person, like you, who suffers such psychological problems to serve a term of imprisonment than it is for a person who does not have those problems.  I particularly take into account Dr Barth’s concern about a potential deterioration in your health around the time of sentence and your need for psychological support at that time and will urge that this be made available to you in custody.

[15](2007) 16 VR 269

[16](2013) 249 CLR 571; HCA 37

32It was put on your behalf that your limited criminal history, coupled with the fact that you had worked as a volunteer with the State Emergency Service from September 2019 to March 2020 (on approximately 20 occasions as illustrated by documents tendered as Exhibit “2”), showed that you were hitherto a person of good character.  Whilst your volunteering for State Emergency Services may show that you do have some decent character traits by being prepared to assist in situations involving such things as fallen trees or flood damage, your own admission to long term substance abuse, particularly alcohol and ice, along with the fact that you had become engaged in the illegal importation of cigarettes and knew how to recruit a gang of thugs to kidnap and assault the victim, tends to suggest that you were not a person of particularly exemplary character.  I here interpolate that, in sentencing you, it is no part of my task to punish you for your role in illegally importing cigarettes.  In your favour, I do take into account that, since being remanded in custody, you have worked as a hairdresser albeit that there is a concern expressed by custody management and Dr Barth that you are not realistically committed to a life of abstinence as far as your long term substance abuse is concerned. 

33Other factors which I take into account are that your pleas of guilty were entered during the time of the restrictions occasioned by the COVID‑19 pandemic when it has been very difficult, and mostly impossible, to conduct criminal trials in the State of Victoria.  By reason of that fact, alone, you are entitled to have an increased utilitarian value placed upon your pleas.  The pleas, in themselves, are capable of indicating some remorse, and you have expressed contrition to Dr Barth.  I take that into account, but note that it must be a recent development as it had not stopped you putting the victim through the ordeal of cross-examination at committal, even though the prosecution case against you was a relatively strong one.  Although it was not particularly extensive cross-examination, he was required to turn his mind to the circumstances of his capture and being thrown into the back of a van and the horror of having the vehicle with the assailants in it following close behind. 

34Although your co‑accused, Lu, did not conduct a contested committal, there is not a great deal of difference between the date upon which she indicated that she proposed to plead guilty (18 June 2021) and your indication given a month later (22 July 2021).  By reason of your pleas of guilty you are entitled to a meaningful and tangible discount on the sentence which otherwise would have been given, particularly taking into account their additional utilitarian value in accordance with the principle in Worboyes v R[17].

[17][2021] VSCA 169; 96 MVR 344

35Another factor which I take into account in sentencing you is that the sentence of imprisonment to be imposed for your offending must inevitably exceed 12 months or more. Thus, you face mandatory cancellation of your visa pursuant to s501(3A) of the Migration Act 1958 (Cth). Although you can seek revocation of a cancellation of your visa pursuant to s501CA, your counsel conceded that your prospects of achieving such a revocation were not promising. Obviously, it is inappropriate to speculate in relation to this matter, but I accept that the prospect of deportation following your release from custody is a real risk and it may mean that the burden of imprisonment will be greater for you than for someone who does not face such a risk. In addition, you would thereby lose any opportunity you had of settling permanently in Australia.[18]

[18]Guden v The Queen [2010] 28 VR 288 at 295

36I give these matters some weight, but note that, as Mr Plummer on behalf of the prosecution pointed out, you came to Australia on your wife’s visa and that marriage has now ended.  You would be returned to the country of your origin where you grew up and still have family, namely your mother and a half-brother.  It is not a situation where you arrived in Australia as a child and have grown up here or established yourself in any significant way here.  Indeed, Dr Barth noted that you had struggled to establish yourself in a foreign culture here in Australia.[19]  Your counsel also stated that the import/export business, Bruvvers Trading, which you had set up with your half-brother, was still in its infancy at the time of this offending and had never really got off the ground.

[19]Exhibit “1”, page 6, paragraph 32

37In his submissions on your behalf, Mr Hughan reminded the court of the application of the principle of parity in sentencing you.  This principle involves the concept that like offending should be punished equally in order to give effect to the notion of equal justice.  However, it is plain that this principle involves the court undertaking an analysis of the respective culpability and circumstances of co-offenders.  In particular, comparison of the role of each co-offender is important and, generally speaking, someone like yourself who was the architect of this offence of kidnapping, bears a heavier moral culpability than a co-offender like Lu, who did not conceive the plan.[20]

[20]Lowe v The Queen (1984) 154 CLR 606 at 610-611 (per Mason J); The Queen v Hildebrandt [2008] 187 A Crim R 42 at 49; Sikoulabout v The Queen [2018] VSCA 268 at [87]-[89]

38When sentencing your co-offender, Lu, I stated that her role in luring the victim into your clutches could not be characterised as a peripheral role, as she was a crucial line of communication between him and you, the undisclosed organiser of the kidnapping.[21]  I referred to her financial incentive in having you continue to use the escort agency where she received a commission for all bookings, her having been promised $10,000 by you to entice the victim into delivering the bedframe, also that she hoped to get employment with you.[22]  However, I regard there as being a very large disparity in the role played by Lu and the role played by you.  The reasons for my concluding that such a disparity exists are as follows:

·        You were some years older than she was, namely, 28 years and 7 months compared to her 22 years and 1 month.  You presented to her, a single young woman working as a booking receptionist for an escort agency, as something of a man of the world, who was married and had a business which was a potential employment opportunity for her.

·        You devised the plan to kidnap the victim and, as your counsel pointed out, it was not some impulsive drug or alcohol-fuelled act.  It was something that you planned and put into place with some care because you believed (wrongly) that your victim was responsible for depriving you of illegally imported cigarettes which were worth a great deal of money.  Hence, when it became apparent to you in some casual conversation with Lu that she was proposing to move address, you seized on this information in order to use it as a ruse to get hold of your victim.

·        Whilst Lu showed callous indifference towards the victim, whom she neither knew or had any interest in, you hatched a very specific plan to capture and assault him in order to extract what you thought would be information to your benefit, namely, the identity of his boss or instructor whom you believed to be behind the theft of the illegally imported cigarettes.  Prior to contacting Lu, you already had in mind getting a “team” of people to capture and assault the victim and had apparently discussed with such “team” how much they would charge for their depraved service.[23]  The scheme which you devised was a brazen taking of the law into your own hands in a manner which you described in no uncertain terms to Lu as a “capture and kidnap … for a few days until he confesses who is the instructor. Quite brutal”.[24]  It is apparent that you had many WeChat discussions with Lu for approximately a week prior to the date of the offence.  You also recruited the hired thugs and stood nearby at the delivery address, like a coward ostensibly devoid of any human decency, whilst they punched, kicked and struck the victim with a bat.  As previously mentioned, they used the bat, their hands and feet to hit him about 20-30 times, mostly to his upper body, arms and head.  They then grabbed him by the arms and legs and put him into the back of the truck where his hands were tied together, as were his ankles.  You were in the proximity as he was taken off as a prisoner in the back of the truck.  You admitted as much to your co-offender, Lu, later that day.[25]  As the architect of this inhumane treatment of the victim who hired, not only Lu, but the “team” of three thugs to carry it out, and stood by whilst it was carried out, you bear a very markedly more serious moral culpability for this offending than Lu.

·        The reason for your offending involved your hope of recovering illegally imported cigarettes which were valued at $400,000-$500,000.  Although it is unclear what your net profit may have been had the cigarettes been recovered, clearly their value, as you articulated it to Lu, was likely to be very much in excess of the $10,000 you promised her, or any ill-defined future commissions she might have earned from you booking the escort agency or giving her some employment.

·        Unlike Lu, you ran a contested committal where, by reason of questions asked on your behalf, the victim was made to relive the ordeal that he endured.  As I have stated, he was asked about the presence of the people in the car who had assaulted him and thrown him into the back of the truck and about him being driven away, with the car following the truck.  He was also gratuitously cross-examined about his visa status here in Australia.[26]

·        Lu pleaded guilty on 18 June 2021, approximately five weeks prior to you pleading guilty on 23 July 2021.  You had closely watched the progress of Lu’s sentencing indication and plea hearings, and had become aware on 5 July 2021 of the fact that she indicated that she was prepared to assist law enforcement authorities, albeit that you had not received Lu’s written statements made to police until the afternoon of the day of 22 July 2021 after you already had indicated that you would plead guilty earlier that day.  The fact of her providing assistance to law enforcement authorities is another important distinction between her situation and yours which merited a discount on the sentence given to her.

[21][2021] VCC 1148, page 15, paragraph 39

[22]Ibid, pages 12-14, paragraph 35

[23]        Depositions pp.151-153

[24]Paragraph 9 of Exhibit “A”, WeChat message on 18 May 2020

[25]Exhibit “A”, page 8, paragraph 26

[26]See transcript of committal proceedings on 24 June 2021, pages 22-24

39Mr Chong, the very serious adverse impact upon your victim is a matter which I take into account in sentencing you.  This is apparent from a Victim Impact Statement made by Mr Chen on 16 June 2021.  It describes how he had come to Australia, worked as a delivery driver and spent four years studying to get his heavy-combination licence with a view to obtaining work as a heavy-combination driver.  As a result of the brutal injuries inflicted at your behest, he was unable to work and lost his job.  Due to fractured fingers, he was unable to lift heavy items anymore and suffered fear, anger, flashbacks to being kidnapped and hurt, had trouble sleeping, and general feelings of insecurity, which made him afraid to go outside anymore, to the point that he even had to have food delivered.  Having lost his job, he had no income and was unable to continue his study and had his enrol cancelled, and could not pay his outstanding school fees.  Then, his student visa expired on 9 June 2021.  He described that this crime has destroyed his dream and his life.  Had it not been for the kidnapping and the terrible consequences he has suffered, he believes that, by now, he would have graduated and applied for a two-year working visa and hopefully found a sponsor so he could remain in Australia and achieve his goal of working as a driver of a heavy-combination vehicle.  Instead, he feels his life is without purpose, he is angry and afraid and has lost connection with people.  He is in a desperate state financially, unable to work or study, and has had to endure the long, drawn-out process of remaining in Australia, waiting for the resolution of the criminal offending against himself, which up until a few months ago, was anticipated to go to trial.

40As I stated when sentencing your co-offender, Lu, Australia is a country which prides itself on its rule of law.  We have good reason to be proud of our criminal justice system, which calls people to account for their actions.  In this country, freedom and safety are values we hold dear, and your behaviour has grossly violated the freedom and safety, and health, of Mr Chen, who was a young man who was doing his best to study and work hard, and improve his lot here in Australia.  When people like you take the law into your own hands and brutally and high-handedly infringe the laws that protect those values, such criminal behaviour impacts not only on the victim who has suffered a great deal, but also upon the sense of security of the whole community.  It is deeply offensive that, you, who had been given the hospitality of a visa to come to Australia while your wife was studying, would so have abused that hospitality.  You have demonstrated a serious lack of morality and fundamental sense of decency and respect for another human being, and all for the purpose of pursuing the financial gain which you anticipated from the illegal importation of cigarettes in which you participated.  I have made it plain that your illegal behaviour in importing those cigarettes forms no part of my role in sentencing you.

41The gravity of the crime of kidnapping is indicated by the maximum penalty of 25 years’ imprisonment which applies to it. It is also a Category 2 offence pursuant to s.5(2H) of the Sentencing Act which (unless there are certain exceptions that do not apply to you) makes it mandatory to impose a term of imprisonment (other than a sentence of imprisonment imposed in addition to making a Community Correction Order). I regard this as a serious example of kidnapping involving gross violence inflicted upon the victim by your three hired thugs while he was down and disabled, and trying to protect himself. The Court must denounce your appalling conduct in orchestrating this vicious and frightening crime, and must place emphasis upon general deterrence. This means that, in sentencing you, the Court must send a message to others who might be minded to take the law into their own hands and engage in the sort of conduct you engaged in to intimidate people in the hope of bettering their own situation. That message is that anyone who behaves in the unscrupulous, inhumane fashion in which you did will be appropriately punished. Otherwise, our society would be a chaotic one without a rule of law. People must know that they will be brought to justice if they break the law, and victims of their crimes must feel vindicated by the enforcement of laws against people who perpetrate crimes against them.

42I have looked at other sentences in relation to kidnapping, but not gained much assistance from them, because the facts of each crime are different, as are the personal circumstances of the offender.  In a number of the sentencing decisions the offender has been charged with, not only kidnapping, but also assault charges, including intentionally causing injury or intentionally causing serious injury, as well as false imprisonment.  Plainly it is important where there are multiple charges, involving an overlap of the conduct charged that there not be double punishment.

43In your case, you have been charged only with kidnapping, and not with any other offence of assault or false imprisonment, yet the summary of prosecution opening, with which you have not taken issue, embodies both the serious assault and the imprisonment of the victim in the back of his truck as part of the kidnapping.

44Although the period of false imprisonment in the back of the truck was relatively short-lived, it is relevant to note that it only came to an end because Mr Chen, believing that he was going to die, and having no comprehension of why he was being so appallingly treated, took the extraordinary and desperate step of escaping through a space in the back doors by jumping out when he could see that the truck was on a main road.

45The brutality of the assault in particular adds to the gravity of the kidnapping charge which caused such fear to the victim.  Although you, personally, did not carry out the assault, you are responsible for all that occurred because you devised the entirety of the offending and highlighted in advance to your co‑offender Lu that it would be a scenario which involved capture, possibly for a few days, and would be quite brutal, and would involve a team of people to carry it out.  You were right there near the scene as the victim was being attacked by the three thugs and thrown into the back of the van, and did nothing to intervene or protect him as the thugs carried out your instructions.

46There is no doubt that the only appropriate sentence is a significant term of imprisonment with a non-parole period, albeit discounted for your plea of guilty, which, as I have earlier stated, has added utilitarian benefit as it was entered at a time when the running of criminal trials in the State of Victoria was very close to impossible.  I have also acknowledged the mitigatory factor of the more onerous conditions of imprisonment because of the restrictions occasioned by the pandemic, particularly given your vulnerable mental health and the impact upon you of your likely deportation.

47As far as the summary charge, possession of an imitation firearm, is concerned, you told police that you had purchased it online “just for collection”.  It is an unpleasant sort of item to choose to collect.  The photographs of it tendered as Exhibit “C” show it to have the appearance of a real firearm which could have a menacing impact.  Your counsel, Mr Hughan, agreed with this, but emphasised correctly that there was no evidence that the imitation firearm had been utilised in any way in committing the kidnapping.  They are discrete offences, and I see no basis for making the sentence in relation to possession of the imitation firearm other than cumulative upon the sentence for kidnapping.

48I find it hard to assess your prospects of rehabilitation.  The material before me demonstrates that you have had a long-term substance abuse problem in relation to alcohol and, in more recent times, in relation to methylamphetamine.  There is no evidence that you have ever tried to do anything to rehabilitate yourself from such substance abuse.

49Dr Barth in his report had made it plain that your insight into your substance use is relatively limited, and that you lacked any realistic plans to remain abstinent.  Nevertheless, he went on to note that you expressed a desire to participate in extensive substance-abuse treatment at the earliest opportunity, and he described such treatment as “unequivocally warranted”.[27]  If you did express such a desire to Dr Barth, it must have been a recently developed one, because the prison authorities on 16 September 2020 stated that you were not interested in drug and alcohol programs.[28]  Again on 20 September 2021, you had reiterated that you were not interested in participating in any education programs, but nevertheless you were referred to a range of programs, including drug and alcohol screening, with a view to treatment.[29]

[27]Exhibit “1”, page 6, paragraph 36

[28]Exhibit “D”, paragraph 21

[29]Ibid. paragraph 47

50As previously mentioned, Dr Barth’s opinion is that your impulsive decision making and poor behavioural control indicate that you remain at an elevated risk of relapsing into substance abuse when you are released into the community.[30]  He remained guarded about your prognosis, but stated that your abstinence from drugs and alcohol in custody had given you an opportunity to gain some insight into your need for personal change.  He considered that, if your motivation could be harnessed to bring you into intensive treatment, then it may be an unprecedented opportunity for you to achieve a constructive long-term change in your life.[31]

[30]Exhibit “1”, page 6, paragraph 36

[31]Ibid. page 8, paragraph 42

51I note that you have only a limited criminal history and you are still relatively young.  Whilst I disagree strongly with Dr Barth’s assessment that your “moral judgment is unimpaired”,[32] as illustrated by your lack of morality in this offending, you may have a prospect of turning your life around if you engage in treatment for your mental health and substance abuse.  However, it is of concern that you continue to exhibit dysfunctional features with your interpersonal and behavioural adjustment.  I have previously referred to these in the context of dealing with Dr Barth’s report and note that he described these maladaptive personality traits as problematic.[33]

[32]Ibid. page 7, paragraph 37(3)

[33]Ibid. page 6, paragraph 34

52Exhibit “2” indicates that you engaged in some voluntary work for the State Emergency Service on quite a number of occasions over a period of six months from September 2019 to March 2020.  Perhaps this indicates that there is a better side to your character which may be built upon if you can overcome your substance-abuse problems and somehow contain your antisocial behaviour traits.  I here note that you wrote a letter to your co‑accused Lu in custody on 17 September this year.  This was tendered as Exhibit “4”. It is a most unusual letter.  It refers to you having written an earlier letter (apparently not received by Lu) but notes that you had not heard back from her.  It urges her to write to you, and offers to have friends of yours in the prison where she is housed to “look after [her]”.  I find it difficult to know what your purpose might have been in sending it, except that you refer to a report in some Chinese media outlet which got the facts wrong concerning the respective roles of her and you in the offending.  You finish off the letter by telling her that you are bored and lonely and getting divorced, and waiting for her letter of reply.[34]  This letter came to light when Lu’s solicitor made a complaint by email to Corrections authorities into which he copied the Office of Public Prosecutions and the Court.  To my mind, the letter demonstrates that you have limited insight into the impact of your actions upon others.  It is difficult to imagine why you would have thought that Lu would wish to hear from you or write back to you.  She was a 22 year old young woman with no prior criminal history and you embroiled her in your criminal offending, which resulted in her being sentenced to a term of imprisonment.  In my view, you need to do a great deal of work to rehabilitate yourself and gain some insight into your own psychological makeup.

[34]Exhibit “4”

53On one charge of kidnapping, you are convicted and sentenced to be imprisoned for a period of seven and a half years.

54On the summary charge of being a non-prohibited person in possession of an imitation firearm without an exemption or approval under the Control of Weapons Act, you are convicted and sentenced to be imprisoned for a period of two months.

55I direct that the sentence imposed on the summary charge be served cumulatively upon the sentence imposed on the charge of kidnapping.

56The total effective sentence is thus seven years and eight months’ imprisonment.

57I direct that you serve a period of five and a half years before becoming eligible for parole.

58I declare a period of pre-sentence detention of 548 days to be time reckoned as already served under the sentence imposed this day.

59Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been ten years and six months’ imprisonment with a non-parole period of seven years and six months.