Director of Public Prosecutions v Lee & Wu

[2023] VCC 1964

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-02629

CR-21-02630

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

CHENG-KUN LEE

&

CHUN-TE WU

---

JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2023
DATE OF SENTENCE:	30 October 2023
CASE MAY BE CITED AS:	DPP v Lee & Wu
MEDIUM NEUTRAL CITATION:	[2023] VCC 1964

REASONS FOR SENTENCE

---

Subject:Plea - sentencing

Catchwords:          Kidnapping - cause injury recklessly

Legislation Cited: 

Cases Cited:

Sentence:Each: Convicted, $8000 fine plus 12-month CCO with 120 hours unpaid community work only

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Kerlin	Office of Public Prosecutions
For the Accused Lee For the Accused Wu	Mr J. McQuillan Mr B. Walmsley KC	Theo Magazis & Associates Condello Lawyers

HIS HONOUR:

1Cheng-Kun Lee and Chun-Te Wu, you have pleaded guilty to an offence of kidnapping, for which the maximum penalty is imprisonment for 25 years, and to an offence of causing injury recklessly, for which the maximum term of imprisonment is five years.

2Neither of you has any prior convictions.  The prosecution tendered and relied upon a summary of prosecution opening dated 20 October 2023 for the plea.  It is Exhibit A.  I am not going to read it again.  Suffice to say that at the time of the offending you, Chun-Te Wu, were 36 years of age and you, Cheng-Kun Lee, were 32 years of age.  You are now aged 39 and 35 respectively.  The victim was known to you, Wu, firstly.  In the period around August-September of 2020 she borrowed about $2,000-3,000 from you, indicating that she wanted the money because her mother was seriously ill and needed medical care.

3Later, in about February of 2021, she borrowed a further $5,000 from you, Lee.  She agreed to pay the money back in weekly instalments of $500.  But after paying an initial $500 and then a subsequent $200, she failed to pay any more of the promised instalments.  About four weeks later you, Wu, messaged the victim on WeChat and told her,

'If [she didn't] pay the money back that you didn't know what might happen to her.'

4She understood that to be a threat.  It was plainly intended to be interpreted by her as a threat.

5On Saturday 8 May 2021 the victim left work in Surrey Hills to meet a friend at an apartment in Wellington Street, Collingwood.  You, Wu, and you, Lee, both followed her in an Uber from her place of work to the address in Collingwood.  At about 9.30 pm or shortly after, you both approached her vehicle, which was parked outside the address that she was visiting.  She was seated in the driver's seat when you approached.  She wound the window down about 15 centimetres to speak to you both.  You asked her to get out of the vehicle.  She refused and told you that you could speak to her through the window.

6You both demanded that she got out of the vehicle.  She refused again.  You, Lee, reached into the vehicle and grabbed the keys out of the ignition. 

7I pause there to say that, at that stage, there is nothing to indicate that either of you had intended at the time that you approached that vehicle to engage in the offence of kidnapping.

8You, Lee, then unlocked the vehicle with a key that you had grabbed out of the ignition and the two of you pulled the victim out of the vehicle.  She apparently tried to escape.  You prevented her from leaving.  She bit you, Wu, on the hand and also yelled out for help.  There were a number of people in the vicinity.  Some of those people dialled ‘000’ and reported their observations to the police.

9The two of you then forced the victim into the rear of the vehicle and punched and kicked her as you did so.  You both got into the rear seat of the vehicle and forced the victim to stay down by putting pressure on her shoulders.  You, Wu, then sat in the driver's seat of the vehicle and drove off whilst the victim was being confined in the rear seat.  That is the offence of kidnapping.

10The vehicle then drove a short distance away and pulled up.  During the journey the victim began to struggle.  You, Lee, slapped and punched the victim forcibly to her face to subdue her, causing swelling, bruising and numbness to the right side of her face.  That is the offence of causing injury recklessly.  You are both charged as joint participants in that offence.

11One of the members of the public who observed what was going on followed your vehicle to a place outside the Collingwood College.  The vehicle parked and you, Wu, then entered the rear seat of the vehicle.  The two of you were then either side of the victim.

12You, Wu, then grabbed her phone from the centre console of the vehicle and told her to key in her password.  She did so and you went through her phone looking to see whether she had money in any bank accounts.  She had no money in her personal accounts.  You then went through her WeChat history.

13Police had been alerted and they approached the vehicle at about 9.45 pm, a little under a quarter of an hour after the incident commenced.  The two of you were then removed from the vehicle.  The victim was taken to hospital where she was treated for some soft tissue injuries.  She was found to have bruising and swelling and was visibly shaken by the incident.

14Both of you were interviewed.  You made no admissions, Lee.  You, Wu, made partial admissions and indicated that it was not your intention to hurt the victim.  You admitted to having driven the vehicle without her consent and while she was in the vehicle.

15The prosecution relied on a victim impact statement which is Exhibit B on the plea.  That victim impact statement is also relied upon by the defence as showing the lack of adverse impact on the victim.  On your behalf, Mr Lee, your counsel quoted a passage from the victim impact statement, under the heading ‘Social impact of this offence on me’, as follows:

'Overall, this offence has no social impact on me.  I'm not under any pressure to work or study more.  There is no impact on my relations with my family and friends.  I feel physically very safe at the moment.  Previously I owed other people money because of my gambling.  I tried to use police charge to evade debts I owed to other people.  Now I have realized the severity of this matter.  I also hope that court could have a deeper understanding of this matter.  I wish to express my deep understanding of this matter through this statement. 

‘Lastly, I have already forgiven the two accused.  I also hope that the magistrate could make a fair judgment on this matter, which was caused by my own reasons after all.'

16As I observed during the course of the plea hearing, it seemed that she was effectively apologising for having exaggerated her account of the incident in her dealings with police.  Nevertheless, she did suffer injury and the violence that was perpetrated upon her was an ugly aspect of this offending conduct. 

17Turning to matters personal to each of you.  Each of your counsel tendered psychological reports.  In your case Lee, it was found that you are suffering from adjustment disorder with depression and anxiety brought on no doubt by the fact that this matter has been hanging over your head for a very considerable period of time.  You have faced the prospect of a further term of imprisonment, having had a taste of that during the period on which you were in custody on remand.

18In your case Wu, it does not seem that there was any mental impairment identified, but the general thrust of the reports on each of you is that you are expressing remorse for your offending conduct.  You are acknowledging your criminal responsibilities.  

19Each of you provided references which show that you are otherwise of good character.  I have already observed that neither of you has any prior criminal record.  Neither of you has been in any trouble since this offending conduct.  Both of you come from Taiwan, you have both been in Australia for quite a number of years: you, Wu, since 2014 and you, Lee, since 2018.

20It seems both of you have a good work ethic and both of you have sought to support family through obtaining money in excess of that which you could have earned in Taiwan and to have pursued educational opportunities.  Both of you are concerned about the prospect of deportation.  That has been hanging over your heads for the last almost two and a half years since this incident occurred with you knowing about the prospect of deportation. 

21Your counsel have each, individually, set out a number of matters that go to mitigation of the offending, including the relatively short period over which the offending occurred, the lack of planning and the lack of sophistication, all of which is consistent with the facts set out in the prosecution opening and in the victim impact statement. 

22You, Lee, were in custody for 66 days after police intervention in the matter.  You, Wu, have been in custody for 39 days.  In the case of each of you, this offending seems to have been out of character.  It arose as a result of you each being duped by the victim as to the reasons for seeking the loan of money.  It was submitted on behalf of each of you that when you confronted the victim on the night in question she had shown indifference, at best, to your concerns.  She showed a lack of remorse, and her response was not just uncooperative but to some extent might be regarded as provocative.

23I accept the proposition that this matter got out of hand way beyond what you had originally intended.  It may well be that the bite on the hand forms part of the escalation of the incident to one which involved actual violence perpetrated upon your victim.  As I have already indicated, that is an ugly aspect of this confrontation. 

24I accept entirely that neither of you had intended to kidnap the victim when this started out, that the kidnapping arose because of the number of people who were present when you confronted the victim and the desirability of having a private conversation with your victim.  That said, the offence of kidnapping is a serious one.  The maximum penalty of 25 years spells out just how serious the courts ordinarily regard an offence of kidnapping.  It is necessary for me to punish you adequately for your offending, to denounce your offending, to pay proper regard to the need for general deterrence as well as deterring you from further offending of this kind and to promote your rehabilitation.

25I was given some considerable help with reference to other cases which have come before the courts in identifying current sentencing practice.  In the ordinary course of events kidnapping attracts a substantial term of imprisonment.  And rightly so. 

26It seems to me that this, as an offence of kidnapping, comes right at the bottom end of the scale of kidnapping.  It was submitted by both counsel that I ought to find circumstances which would relieve me of the need to impose a custodial sentence for the offence of kidnapping. 

27Whilst the circumstances might be exceptional, it does not seem to me that they reach the standard that is required for me to invoke the provision which would relieve me of the need to impose a term of imprisonment for the kidnapping.

28However, each of you has served time on remand and it does enable me to impose a term of imprisonment equivalent to the time that you have served.  I note that in your case, Mr Wu, that time is 39 days.  I would be remiss to impose a more severe sentence on Mr Lee.  Each of you is jointly responsible for this offending.  It is not just open to me but it is the right course to sentence you to a term of imprisonment of 39 days each.  I propose to do that.  I propose also to impose a financial penalty upon each of you for that offence.  As was urged upon me, a community correction order is available in relation to Charge 2 on the indictment, notwithstanding the sentencing provisions that relate specifically to Charge 1.

29It is significant that this matter has been hanging over your heads for two and a half years.  It is particularly significant because the time that you spent in custody was during the Covid pandemic, which was a time of particular restrictions.  Also, the threat of deportation and the fear of deportation hanging over your head for that period of time must have been significantly stressful upon each of you, with the real risk that you might have to serve a longer term of imprisonment which would ordinarily be appropriate for an offence of kidnapping.

30It is certainly a rare occurrence - but not one that I am persuaded enlivens the exception to the rule so far as imposing a term of imprisonment on Charge 1 - that the victim of such a crime should provide a victim impact statement of the kind that she has.  Also, as was set out in the submissions of Mr McQuillan on behalf of you, Lee, there were answers given by her during cross-examination at the committal proceeding which reduced the severity of the incident so far as sentencing is concerned.  They are set out under paragraph 7 in the defence outline of plea submissions on your behalf, Mr Lee.

31Whilst I accept the prosecution submission that kidnapping is a very serious offence, it is necessary for me to exercise a sense of proportion.  As I have already indicated, this instance of kidnapping is right down at the bottom end of the range.  The law requires a gaol term.  I intend to impose one equivalent to the 39 days that you, Wu, have already served and to declare your time served as time to be reckoned as served on the sentence.  So, neither of you will be required to serve any further time in gaol.  I think it would be wholly unjust to impose a term of imprisonment that required either of you to return to gaol.  Whilst it is still important to punish you adequately, I think that that can be done in the way that I have outlined. 

32Doing the best I can to give effect to all of the relevant sentencing considerations, in the cases of you, Cheng-Kun Lee, and you, Chun-Te Wu, for the offence of kidnapping you each are convicted and sentenced to imprisonment for a period of 39 days.

33In your case Lee, I declare 66 days’ pre-sentence detention as time to be reckoned as served on that sentence and deducted administratively from the sentence of 39 days. 

34In your case Wu, I declare 39 days’ pre-sentence detention as time to be reckoned as served on the sentence of 39 days that I have imposed upon you. 

35In addition, in relation to each of you, you are fined $8,000.

36In relation to Charge 2 you are each convicted and sentenced to a community correction order for a period of 12 months, with a requirement that you undergo 120 hours of unpaid community work.   

37I need to go through the terms of the community correction order and I cannot impose it unless you consent to it.  But I will do that both collectively and individually now.  So, each of you will be required to report to the appropriate community correctional services office.  In your case Lee, that will be the Dandenong Community Correctional Services at 46-50 Walker Street, Dandenong.  You need to do that within two clear working days after the commencement of this order, which is today.

38There are a number of terms which apply to all community correction orders.  I will spell those out for you.  You must not commit an offence for which you could be imprisoned during the period of the order - that is the next 12 months.  You must comply with any obligational requirement prescribed by regulation 15 of the Sentencing Regulations, such as not turning up to your work commitments drunk.  You must report to and receive visits from the Secretary of the Department of Justice or his or her delegate.  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 getting permission to do so from the Secretary or his or her delegate.  You must obey all lawful instructions from, and directions of, the Secretary of the Department of Justice or his or her delegate.

39In addition to the mandatory terms, you will each be required to perform 120 hours of unpaid community work over the 12-month period that the order is in force as directed by the regional manager.  If you fail to comply with that order, the Secretary of the Department of Justice or his or her delegate may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act. 

40The only difference in the order that will be made in relation to you, Mr Wu, is that you will be required to attend the Box Hill Community Correctional Services at 703 Station Street, Box Hill, Victoria within two clear working days after the commencement of this order, which is today. 

41You should realise that this order also acts effectively as a suspended sentence hanging over your heads.  If you were to commit another offence punishable by imprisonment during the period of the order, you could be brought back before this court and sentenced for the breach of the order with imprisonment for up to three months, as well as being re-sentenced for these offences for which I have sentenced you today. 

42If you are able to complete the community work component of the order in a period shorter than 12 months, the order will come to an end automatically.

43It would be useful if each counsel could have a word with his client so that they understand exactly what they are signing up for.  To that end we will provide you with copies of the orders.

44MR WALMSLEY:  Would Your Honour wish us to do that now?

45HIS HONOUR:  Yes, please and if you ask your clients to sign the orders I can countersign them and they will be in force, subject to their agreement of course. 

46Get their agreement verbally through you.  Provided they understand the consequences and that they are willing to sign up to the order, I will take their consent through you.

47MR McQUILLAN:  Yes, Your Honour can my instructor come with me as well?

48HIS HONOUR:  Yes of course.

49MR WALMSLEY:  He understands what Your Honour has just ordered.  Not down to the exact English words used in the form, but sufficiently for me to be able to say that he's just signed in full knowledge of what would be required.

50HIS HONOUR:  Thank you very much Mr Walmsley.  Mr McQuillan have you satisfied yourself that your client understands the consequences of the order?

51MR McQUILLAN:  My instructor saw him and I'm confident of that Your Honour.

52HIS HONOUR:  And I have his signature on the document.

53MR McQUILLAN:  Yes.

54HIS HONOUR:  And I shall now countersign that.  So are we now agreed that the time in custody for your client, Mr Walmsley, was 39 days rather than 38?

55MR WALMSELY:  Yes, Your Honour absolutely.

56HIS HONOUR:  In the case of each of you, but for your pleas of guilty I would have sentenced you to imprisonment on the two charges for a period of 12 months.

57MR WALMSLEY:  As Your Honour pleases.

58MR McQUILLAN:  May it please the court.

59MR KERLIN:  Your Honour, thank you for that time.  We confirm 66 days and 39 days are the correct figures.

60HIS HONOUR:  Thank you.  I confirm my original direction that 66 days for Mr Lee and 39 days for Mr Wu are to be treated as time served for the purposes of the sentences that I have imposed and deducted administratively from the sentence that is required to be served.  Which means that neither of you will be required to serve any more time in custody.  Thank you, counsel.

61MR KERLIN:  As Your Honour pleases.

62MR WALMSLEY:  As Your Honour pleases.

63MR McQUILLAN:  As Your Honour pleases

- - -