Director of Public Prosecutions v Li

[2016] VCC 1405

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00202

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEON LI

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2016
DATE OF SENTENCE:	9 September 2016
CASE MAY BE CITED AS:	DPP v LI
MEDIUM NEUTRAL CITATION:	[2016] VCC 1405

REASONS FOR SENTENCE
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Subject:              Criminal law

Catchwords:    Sentencing – common assault – historical offending – good character – imposition of fine without conviction

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MR M. REGAN	John Cain, Solicitor for Public Prosecutions
For the Accused	MR P. KOUNNAS	RTC Legal

HER HONOUR:

1Because of the particular circumstances pertaining to Mr Li, what I propose to do is, without conviction, impose a fine of $1000 in respect to the one charge of common assault and I will give my reasons for that as follows.

2Mr Li, you pleaded guilty before me to one charge of common assault.  The charge is serious and that is evidenced by the maximum penalty that is prescribed by law, namely five years' imprisonment. 

3I note that this relates to an incident of “car park rage” that occurred at the Gold Leaf Chinese Restaurant in Burwood Highway, Burwood, some years ago.  The date of the incident is the 9th of April 2010.

4On that occasion the victim, Roger Chang, was attending a celebratory lunch with his wife, Yim Wu, at the restaurant and unfortunately for him he had an interaction between yourself and your co-accused, Liwen Zang, when he had difficulties accessing the car park. 

5I will sentence you on the basis of the Crown opening that was read at the plea hearing. There was no issue taken in terms of your role or what happened as described in the prosecution opening.

6What occurred on that occasion was disproportionate to any annoyance or any perception of aggression on the part of the victim towards you and it was totally inappropriate and the court must denounce such behaviour.  People are entitled to access car parks to restaurants without this sort of aggression being displayed.

7I will sentence you, as I said, on the basis of what was set out in the Crown opening about you tapping or pushing the victim on the shoulder three times and also brushing him away and swinging a punch at him that missed him and then you were pushing the victim when he was engaged in the fight with Mr Zang.

8What is in your favour is that you did not escalate your offending unlike the co-accused, Mr Zang, whom I describe as being the principal and main aggressor in this interaction.

9You were not aware that Mr Zang had a knife when he stabbed Mr Chang.  The Crown accept that you intervened in a way to prevent Mr Chang being stabbed a second time by your co-accused by telling him that was enough. The Crown further accept that your intervention at that time was likely to have prevented Zang from being able to strike a second time with the knife and also the words that were spoken by you were such that the Crown accepts that you did not actually know he had a knife and that he had stabbed the victim and your words are more consistent with you intervening to stop Zang continuing what may have appeared to you to be a punching attack on Mr Chang.

10Nonetheless you involved yourself in this situation and, as I said, your behaviour must be denounced by the court and you have to be punished. 

11The court is obliged under the Sentencing Act 1991 to apply the principles set out in s.5 and one of the principles is that just punishment is imposed. In all the circumstances of your case, having regard to your antecedents, I have come to the conclusion that a “without conviction” fine is the most appropriate disposition in all the circumstances.

12I have had regard to the plea of guilty to the charge entered when it was appropriately framed.  I note that there was a contested committal involving cross-examination of the victim, but in the particular circumstances of this case, it is accepted that that was warranted having regard to the very serious nature of the charges that you were formally charged with at the time following your arrest.

13I have had regard to the fact that a plea of guilty was entered and consider that it does represented remorse on your behalf. The plea was at an early stage such that once it was appropriately framed, the Indictment, it was resolved, therefore no further witnesses have had to come to court on your trial to give evidence and it spared the victim the inconvenience and further trauma of having to come to court and give evidence on your behalf.  I accept that it is reflective of remorse on your behalf.  You now accept that your behaviour on this occasion was wrong.

14In terms of your rehabilitation, I consider you have excellent rehabilitation prospects.  The reference material attests to the high regard that you’re held in the community from people involved with the Australian Beijing Association, an accountant, and a customer of yours, all of whom described you in glowing terms. I accept that you have made the most of your situation here in Australia and that you are a contributing member to our community and in all other respects, apart from this offending, I consider that you are a person of good character.  You have got no prior criminal history and there is no subsequent criminal history.

15So in all the circumstances I consider that the disposition proposed is the most appropriate one. A conviction would have impacted upon you and I have had regard to the factors set out in s.8 of the Sentencing Act in terms of the effect of a recording of a conviction on you, in terms of the future conduct of your business, in terms of your licensing requirements, and also in terms of limiting your freedom of movement into some countries where if you have a conviction for crimes of violence it is difficult to obtain a visa.

16But all in all, having regard to your relatively minor role in this whole event that evolved quickly, the fact that once you had an appropriately framed charge, that you indicated your willingness to accept total responsibility for your actions in all those circumstances, the fine that is to be imposed, in my view, reflects adequate punishment.

17I do not need to make a declaration so far as s.6AAA is concerned because it is not imprisonment. In respect to s.464ZF, having regard to your minor involvement and the extenuating circumstances that followed once you became aware of the situation that was evolving between Zang and Chang, I consider that an order for the taking of a forensic sample is not justified and it is not in the community's interest so I refuse that order.

18They are my reasons, thank you.

19MR BRIGHT:  May it please the court.

20MR MOORE:  May it please the court.

21HER HONOUR:  I will see you again next Friday, Mr Bloeman.

22MR BLOEMAN:  Yes, Your Honour.

23HER HONOUR:  All right, thank you very much.

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