Director of Public Prosecutions v Li (a pseudonym)
[2018] VCC 1815
•9 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Chin Chen LI (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 27 August 2018 – 5 September 2018 Plea: 26 September 2018 | |
DATE OF SENTENCE: | 9 November 2018 | |
CASE MAY BE CITED AS: | DPP v Li (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1815 | |
REASONS FOR SENTENCE
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| Subject: | CRIMINAL LAW |
| Catchwords: | Rape (1 charge) – accused charge with rape of his wife |
| Cases Cited: | Allouch v R [2018] VSCA 244; Zhao v R [2018] VSCA 267; Ibbsv R [1987] 163 CLR 447; R v Short [2006] VSCA 120; DPP v Dalgliesh (a pseudonym) [2017] ALJR 91. |
| Sentence: | Convicted and sentenced to 5 years’ imprisonment with a minimum term to be served before being eligible for parole of 3 years’ imprisonment. |
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms. S. Holmes (Trial) Ms V. Mellios (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr P. Chadwick (Trial) Ms T. Jiang (Sentence) | Dribbin & Brown Criminal Law (Trial & Plea) Tao Jiang Lawyers (Sentence) |
HIS HONOUR:
1 Mr Chin Chen Li[1] is aged 54 having been born on 11 September 1964. In this trial the Director was represented by Samantha Holmes, Ms Mellios appears today. Mr Li was represented by Mr Chadwick, of Her Majesty's Counsel, Ms Jiang appears today.
[1] Chin Chen Li is a pseudonym.
2 Mr Chin Chen Li pleaded not guilty to one count of rape in indictment No.G13223703. He stood trial from 27 August 2018 to 5 September 2018 when a jury convicted him of rape. The plea took place on 26 September 2018.
3 The prosecution relied upon Exhibit A, being the trial opening, dated 28 February 2018, with paragraphs 4, and 27 to 29 deleted from that opening.
4 The victim impact statement of Mr Li's then wife at the time of this offending, was dated 20 September 2018 and was tendered as Exhibit B. As I indicated, there are a number of matters in that victim impact statement that were disregarded by me as discussed with Mr Chadwick. One of the matters that is obvious from that victim impact statement is the impact upon the victim of the role her son was forced to play in this investigation. Further, she has had to endure her son's reaction to her father being charged, and the impact of her reporting this crime has had an impact on her to the extent that she has needed the assistance of a psychologist, and such continues, as I understand.
5 As it has been indicated by Ms Mellios this morning, Mr Li has served 65 days by way of pre-sentence detention.
6 Mr Li comes before the Court with no priors whatsoever. He did have, subsequent to this offending, a breach of an intervention order, however it seems to me that has no impact on this offence.
7 His current status is that he is the holder of a business visa and the view of the Bar table was that, given the current policy of the Commonwealth government, Mr Li will be deported after he completes his jail term.
8 It was put by the prosecution that the only appropriate sentence in this matter was immediate jail.
9 On behalf of Mr Li, Mr Chadwick tendered a written submission, Exhibit 1, and spoke to such submission. As to the crime of rape, in the circumstances of this particular case, Mr Chadwick put that there was no premeditation, was of a somewhat short duration, that there was no gross violence, of course apart from the violence involved in the very rape itself, but the submission made was by comparison to some of the cases that this Court hears where gross violence is involved. It was submitted that there was no degrading behaviour in that the rape was sexual intercourse, penile sexual intercourse, and that there was no humiliation. I do not accept the submission as to humiliation, it seems to me that for a woman to be raped in her own home, by her husband while her son is home, amounts, to a significant degree of humiliation.
10 Mr Chadwick, despite making those comments, insofar as this crime was concerned, on behalf of Mr Li accepted the prosecution submission that the only proper sentence was immediate imprisonment. Indeed, to use Mr Chadwick's words, it had to be accepted that such custodial sentence would be for some years.
11 As part of the written submission and his oral plea, Mr Chadwick stressed that Mr Li comes before the Court with no priors, that he is a very successful business person, who has worked hard in achieving success. His business rise is clearly admirable, as detailed in [7] through to [26] of the written submission, ultimately leading to him conducting companies in China, predominately in manufacturing and developing a Boost Juice business when he came here, which his wife apparently conducted. As an indication of his success, he was able to be resident in Australia pursuant to the provisions of the business visa program, which involves a considerable amount of monetary investment in this country to be accepted for that program.
12 Unfortunately insofar as the conducting of that business in China, given the issues associated with the break-up of the marriage, the rape charge itself and the court proceedings, the business has been neglected, in particular since February 2017 when Mr Li has been unable to attend to the business because of his bail provisions.
13 Since Mr Li’s conviction, Mr Chadwick put that the business has been grossly impacted. That given Mr Li's language issues and culture it has been very difficult for him in prison. It will be a considerable burden for him to serve a period of jail, particularly the end product of that being that he will be deported when his son, and indeed both sons as I understand it, are living in Australia. He also has some blood pressure issues which are being treated in jail.
14 Because of his dual citizenship it was put that he will do his prison hard, and I accept that. The issue of deportation was put to the Court, I accept that he will be deported for the purpose of this sentence on the basis of the Commonwealth authority, he will therefore suffer the uprooting of all the steps that he has taken to settle in Australia and from his family who are in Australia, in particular, his two sons, his son of this marriage and an earlier son. And of course his aim to obtain citizenship, or maintain citizenship in this country, will thereby cease.
15 Both of those impacts upon him I take into account on the principles set out from the case put to me by Mr Chadwick, Allouch v R [2018] VSCA 244. I take into account that both of the impacts set out in [39] thereof, and the subsequent confirmation of those principles by the Court of Appeal in Zhao v R [2018] VSCA 267, [60].
16 Mr Chadwick said that the Court should accept that after this jail sentence is served, there is no reason whatsoever not to expect that Mr Li will effect a complete rehabilitation. I accept that. I also note the excellent references that have been put forward on Mr Li’s behalf, and have reread those references which were tendered, Exhibit 2.
17 While Mr Li cannot rely on the issue of remorse, given his plea and the trial, I think it is important to point out to Mr Li that, because one exercises the right to trial, you do not suffer for that. However, of course, the consequence of going to trial is that you cannot bring the principle of remorse to bear in your plea.
18 In considering the crime and the sentence appropriate for rape, one of the major considerations of course, as required by sentencing law is that the crime brings with it a maximum penalty prescribed by Parliament of 25 years' imprisonment. On the scale of heinousness referred to in the High Court decision of Ibbs [1987] 163 CLR 447, 452, while I accept all of the matters put by Mr Chadwick, and I further accept that there is no aggravation by the fact, for example, that it was a stranger rape, I find this crime sits in the middle of such scale.
19 It is necessary of course to balance all of the abovementioned factors put by Mr Chadwick, when determining the sentence. In particular, I refer to comments of the Court of Appeal in R v Short [2006] VSCA 120, [73] – [74], when considering rape, in particular, rape in circumstances that are applicable in this case where a person has raped his former partner:
"Those who are minded to engage in such behaviour and exercise either their physical power or that arising from their dominant relationship position over vulnerable persons must anticipate the imposition of substantial terms of imprisonment. The courts, when dealing with such cases, must have regard to the vindication of the community's social values, pre-eminent amongst which are the protection of the person, of integrity and the physical safety of its citizens."
20 It is also of course appropriate when sentencing to bear in mind the fundamental principles set out by the High Court in Dalgliesh [2017] ALJR 91, in particular, at 107, [49] where the court said that:
"The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case."
21 As I might have said on other occasions, it seems to me this Court has been at pains at all times to adhere to that principle.
22
Taking into account all of those matters, therefore I come to sentence you,
Mr Li, for the rape of your wife. If you would stand, please.
23 For such crime you will be sentenced to a period of imprisonment of five years. The period that you must serve before being eligible for parole is three years.
24 The pre-sentence detention that you have served to date is 65 days, and I declare that that shall be deemed as service of this sentence and a copy of the declaration to that effect be recorded in the court's records.
25 The matter I would like to raise, and of course these are administrative matters, but I understand that where such sentences are passed and a person is to be deported, the determination of the Court that a minimum period should be served by way of parole, in this case the period of three years, is not necessarily complied with by the prison and/or parole authorities. I would like it to be made clear that, in my view, an appropriate sentence in this matter, given all the matters while being a maximum of five years, the minimum period to be served should be three years and three years only. To the extent that those comments can help Mr Li, I hope that they are taken into account by the relevant authorities who administer such matters.
26 Yes. Any other matters?
27 MS MELLIOS: No, Your Honour.
28 HIS HONOUR: Ms Jiang, any other matters?
29 MS JIANG: No, Your Honour.
30 HIS HONOUR: Yes. Well, good luck, Mr Li, the prisoner can be taken away.
31 MS MELLIOS: As Your Honour pleases.
32 HIS HONOUR: Yes, I'll stand down.
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