Director of Public Prosecutions v Lian
[2016] VCC 295
•18 March 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-15-01306
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WEI LIAN |
---
| JUDGE: | HER HONOUR JUDGE CAMPTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 February 2016 |
| DATE OF SENTENCE: | 18 March 2016 |
| CASE MAY BE CITED AS: | DPP v Lian |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 295 |
REASONS FOR SENTENCE
---Subject: Intentionally cause serious injury – reckless conduct endangering life – recklessly causing injury
Catchwords: stab wounds to the neck and left hand – gas turned on in the house
Legislation Cited:
Cases Cited: R v Verdins [2005] VSC 479; DPP v Zhuang [2015] VSCA 96.
Sentence: 6 years 3 months imprisonment with a non-parole period of 4 years and 6 months.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Dr N. Rogers SC | Director of Public Prosecutions |
| For the Offender | Ms S. Leighfield | Galbally & O’bryan Lawyers |
HER HONOUR:
Charges
1Wei Lian, you have pleaded guilty to one count of intentionally cause serious injury, one count of reckless conduct endangering life and one count of recklessly causing injury. The penalty for intentionally causing serious injury is 20 years' imprisonment, for reckless conduct endangering life it is ten years' imprisonment, and for recklessly causing injury it is five years' imprisonment.
Circumstances of Offending
2The circumstances of your offending are set out in the prosecution opening, which will form part of this sentence. In summary, in December 2014 you were living with your wife Haimong Tian and her son from a previous marriage, Tianchong Sun, in a house in Reservoir. On the evening of Thursday 18 December 2014, shortly after 11 pm, you and Tian went to bed. There was a dispute between the two of you concerning the fact that Tian had informed your sister that she could no longer tolerate the long-term disputes the two of you were having, she could not sleep and she was going to move out on 23 December 2014.
3 On hearing this information from Tian, your sister apparently suggested that you should get a divorce. Sun was in bed with his door shut. He heard you and Tian talking about divorce and Tian telling you to get out. You subsequently left the bedroom and went into the lounge room. You turned on the gas hotplates in the kitchen, you opened a large gas bottle behind the front door within the house. Your conduct in doing these actions relates to Charge 2 of reckless conduct endangering life.
4By this time Sun had fallen asleep, but he awoke at 2.30am and saw you in his bedroom. You walked over to an open window and slid the window shut. Sun got up, opened his bedroom door, he saw you standing in front of his door, he smelt gas and was shocked. He immediately called 000 on his mobile phone. You shouted at him "You called 000?" and then you stabbed him in the back of his neck with a kitchen knife.
5In the meanwhile Tian awoke and heard the noise of fighting and yelling. She went to Sun's room and noticed that he had a knife cut on the back of his neck and he was bleeding profusely. She saw Sun holding you with both hands. She saw that you were holding a long knife and she noticed a lot of blood in the room. Sun told Tian to ring 000, however she could not do this as she did not speak English. Sun loosened his grip on you and attempted to make the 000 call, but you got him down onto the floor, you sat on top of his stomach and stabbed his throat and neck with the knife. He thought that you stabbed him two to three times. Sun tried to prevent you from stabbing him by holding the blade of the knife with both hands. These facts relate to Charge 1 of intentionally cause serious injury.
6Tian then tried to grab the knife from you by grabbing the end of the blade, which caused an injury to her left hand. The grapple between the three of you lasted for about ten to 20 minutes. The injury to Tian's left hand relates to Charge 3 of recklessly cause injury.
7Sun eventually managed to place the 000 call. The fight between you continued until the police arrived. During this process he noticed that he was losing a lot of blood. Tian eventually managed to get the knife off you and she opened the door of the unit for the police when they arrived at 2.20am.
8When they arrived the police observed a large open gas bottle sitting at the doorway. They noticed that the gas hobs in the kitchen were turned on fully. First aid was administered to Sun and you were removed from the house and taken outside. Once outside you were escorted to the rear of the ambulance. You stated that your actions were due to emotional distress, you had now woken up and no longer wished to harm anyone or yourself.
9Ambulance paramedics carried out a physical examination of you. They noticed that you had a swelling on your top lip and bruising and swelling to the forehead area. You were eventually assessed by the Victorian Institute of Forensic Medicine by an officer from that institution as being fit to be interviewed. You made a "no comment" record of interview.
Injuries to Sun and Tian
10Sun was taken by ambulance to the Royal Melbourne Hospital at about
2.58am. It was noted there that he had three lacerations to the right anterior neck, multiple lacerations of the volar aspects of his left finger and thumb, and superficial abrasions to his left knee.11On 19 December 2014 he underwent surgery in theatre under general anaesthetic. Two of the anterior right neck wounds were explored, the third anterior right neck wound was found to extend deep to plasmata, and that laceration was surgically repaired. The large laceration to the posterior neck with bleeding from the muscle was also surgically repaired. On 20 December 2014 Sun underwent plastic surgery for repair of his left hand.
12At your plea hearing there was no report concerning the result of this procedure, however at the request of the court a medical report on the prognosis regarding the left hand injury was obtained by the prosecution and made available to the court on 17 March this year. In this report Dr Julia Matheson reported the findings of the operation. A left hand repair was carried out. For the purposes of translation, simply be that plastic surgery was carried out on the left hand and there were injuries to the left little finger and the left index finger, and these injuries were repaired during surgery.
13The technical finding was that with the left little finger there was a zone 2 flexor digitorum profundus injury and a left index finger zone 170 degree flexor digitorum profundus injury and ulnar digital nerve injury.
14The plastic surgery clinic follow-up notes revealed that the last appointment to review Sun's left hand injury took place on 17 June 2015. There was a lack of strength in the left little finger, improving slowly, there was a full range of active flexion, Strength with regard to the left hand was 16 kilograms, and with the right it was 28 kilograms.
15Sun was discharged from hand therapy and encouraged to continue with strengthening over a long period to improve function. When Dr Matheson discussed Sun's case with the hand therapist who had performed the operation, he was informed that this type of hand injury a good functional outcome could be expected, however full recovery may take 12 months from the time of injury.
Victim Impact Statements
16In his victim impact statement of 14 February 2016 Sun described his left hand as being "useless now". He could not play sport like he used to or lift heavy things. On cold or wet days his hand felt uncomfortable and he was in pain. He was now scared of knives and of blood. He said "Because of the fear of blood and knives I have to stop my dream about becoming a doctor and a good husband who would cook meals for my family." Before the incident becoming a doctor, in particular a surgeon, was his life target and he now felt lost in his life.
17With respect to his neck, Sun said "As the main muscle of the back of my neck was cut in half I easily feel tired and painful, even though it's been fixed by doctors." He has to massage his neck every few hours. Sun referred to your crime as leaving a shadow in his heart. He could believe no one in his life, including family members. He had lost trust in people and was scared to fall asleep at night because the darkness always reminds him of what happened. Sun reported that he is seeing a psychologist every week and his treatment is ongoing.
18Tian was also taken to the Royal Melbourne Hospital. On examination it was noted that there were lacerations to both her hands, the largest being on the index finger of the right hand, however there was no evidence of vessel nerve damage. There was also a 1.5 cm laceration to her right shin. She was treated by way of a tetanus injection, five stitches to the right index finger and analgesics for pain.
19In his victim impact statement Tian referred to the effect the injury to her left hand had on her job as a massage therapist. As she had three stitches in her left hand she lost time off work. She still does not have proper feeling in her forefinger and is more sensitive to things that are hot or cold.
20With respect to the emotional impact of your actions Tian described waking up with nightmares. She is extremely worried about her son, in particular about his future, as he is not attending university as he does not feel safe. She is worried that you will look for her in the future and she has incurred the expense of moving house and putting in security.
Personal Background
21Your personal details were outlined to the court by your counsel and further details were contained in reports from Associate Professor Andrew Carroll,
Dr Mathew Barth and Dr Sheryl Monteath.22You were born in Shanghai, China, on 15 July 1959, being the eldest of two children. You had a very strict and abusive upbringing at the hands of your father, who abused you physically. Your father passed away when you were 13 years old. You told Dr Barth that you were a good student, obtaining basic literacy and numeracy skills. You also had two months' military training and completed work experience in rural areas of China.
23You have been employed as a salesman in electrical goods for a period of time, as a cashier in Shanghai, and working for a computer company doing general handiwork. In 1995 you developed your own business teaching children calligraphy.
24You married in China and this relationship lasted for some 14 years. You have a daughter, Susan, from this relationship who is now 26 years old. You and Susan's mother divorced in 1996 but remained living under the same roof for the sake of your daughter.
25You migrated to Australia with Susan in 2000. Your sister had commenced living in Australia several years earlier and your mother had followed her. You migrated to Australia to be closer to them. After coming to Australia you worked in the furniture business and manufacturing curtains. More recently you ran your own Chinese massage business at the Prahran Market.
26In 2007 you were introduced to Tian, who was living in China at the time. You established a relationship via telephone and correspondence. On 1 January 2008 you returned to China to meet her and you were married eight days later. In October 2008 Tian was granted a temporary visa to Australia and came to live with you in the unit in Reservoir. Her son Sun came to Australia in July 2010 and moved in with you.
27It appears from the various reports that there were difficulties in the marriage and that the conflict between you and Tian started to escalate after the arrival of Sun. You told Dr Barth that you were very upset when Sun came to live with you and that he was continually disrespectful towards you. You also told
Dr Barth that you felt like a failure and that Tian had used you to get to Australia.28Associate Professor Carroll reported that you gave him an account of disturbance of mood with associated poor sleep and suicidal ideation for several months leading up to your offending. At page 4 of his report he said that the background to your disturbed mood appeared to have been that your marriage was deteriorating and your wife was threatening to leave. You had formed the view that she had only married you in the first place in order to obtain residency in Australia. You felt you had been duped and that your wife and stepson were unfair.
29Dr Barth reported that on p.4 of his report, that your sister Lin Lui had told him that you had become increasingly stressed in the weeks leading up to the offending. In her reference written on your behalf, Ms Lui revealed that in the months leading up to the incident you had spoken to her about your difficulty in sleeping, your gambling and excessive drinking. She said that you had become increasingly dependent upon her for emotional support. On the night of the offences you came to her house, and that if she had not needed to go to the hospital to see her son she would have spent more time talking to you and the events in question may have turned out differently.
The reports
30Turning to the reports, psychological, psychiatric and neuropsychological,
Dr Mathew Barth first assessed you on 1 April 2015. He described your symptoms then as being sufficiently severe to warrant a diagnosis of adjustment disorder with mixed anxiety and depressed mood. In his opinion, due to your poor social skills, simplistic decision-making and limited coping skills for emotional distress, you were a relatively vulnerable prisoner and you were at risk of further deterioration of your mental health.31After he saw you on 15 October 2015 Dr Barth noted that you developed excessive and odd behaviour, in particular an obsessive preoccupation with "bad blood" or "dirty blood" being the source of your psychological difficulties. Dr Barth diagnosed you as having delusional thought processes and recommended a psychiatric evaluation to be undertaken at the earliest opportunity.
32Dr Sheryl Monteath assessed you on 28 April 2015. In her report she noted various factors that were of concern to her. In light of the unusual ideas you conveyed in the assessment she also recommended that you be referred for a psychiatric assessment.
33The psychiatric assessment was carried out by Associate Professor Carroll on 17 December 2015. As well as the report I referred to earlier in this sentence, Associate Professor Carroll attended your plea hearing and gave evidence. He diagnosed you as having a pre-existing schizotypal disorder which was a life-long condition that was genetically related to schizophrenia. It was associated with various oddities of behaviour and mental state. He believed that the disorder would have been present at the time of your offending, in addition to the adjustment disorder with anxiety and depressed mood, the stressors appearing to have been the breakdown of your marriage and your perception that your wife had duped you in some way.
34Most importantly in relation to sentencing, Professor Carroll was of the opinion that at the time of your offending the schizotypal disorder, together with the acute adjustment disorder, would have affected your capacity for reasoned judgment with respect to your behaviour at least to a moderate degree. While you would have known the wrongfulness of your actions at the time, your capacity for self-control and rational judgment was moderately impaired by your schizotypal disorder and adjustment disorder.
35He was of the opinion that your psychosis was unlikely to resolve until the psychological stress of imprisonment and possible deportation was lifted. In addition, he considered that imprisonment had already had a serious adverse effect upon your mental health.
36It is worthy of note that on 23 December 2015 you were seen by Dr Clare McInerney, who made a provisional diagnosis of a psychotic episode and she prescribed oral antipsychotic medication. She reviewed you on 7 January 2016 and noticed an overall improvement in your mental health. You remain under psychiatric review and on medication while in custody.
Defence Plea Submissions
37In her plea on your behalf your counsel relied on the various psychological and other mental health reports I have just referred to, to support her submission that in accordance with the principles in Verdins' case, general and specific deterrence should be moderated as a sentencing consideration. It was also submitted that any given sentence will weigh more heavily on you than it would on a person of normal health and that imprisonment has already had a significant adverse effect on your mental health.
38The other mitigating matters relied upon by your counsel included your plea of guilty, which was entered at an early stage, your lack of prior convictions, your lack of subsequent convictions or pending matters, your good work history and family support, and the possibility that you will be deported after serving any sentence handed down by this court.
39With regard to your previous good character a number of references were tendered by your counsel. In her reference your sister Lin Lui was convinced that you were sorry for what you had done. She described you as being a supportive and loving brother who had never demonstrated a propensity towards violence.
40In her reference your daughter Susan described you as being very hard-working and diligent. She said that you had never displayed any violence towards her. She thought the main drivers in your offending were the prospect of divorce and the inaccessibility of your family members on the night of the offending. She believes that you are remorseful about your offending and that you are receptive to rehabilitation, however she is concerned that there has been a noticeable deterioration in your mental health while in custody, and she is aware that you are worried about the prospect of deportation.
41The reference from your mother is in much the same terms. She described violence as being against your nature. She is worried about deportation, as you rely heavily on you sister and daughter, who live here and have established careers.
42Finally, Mary Cox, who has known you for approximately four years, describes you as a kind and caring man. She had never seen any violence or aggression in you.
Sentencing Remarks
43In sentencing you I have taken all these mitigating factors into account. I have given you a discount for your plea of guilty, which saves the state the expense of a trial and of course the victims the ordeal of having to give evidence.
I have accepted that your plea of guilty is a genuine indication of your remorse. I have also taken into account your previous good history and lack of prior offending. This background history supports the conclusion that with adequate treatment for your mental health issues the prospects of rehabilitation are good.44I have accepted the opinion of Associate Professor Carroll that at the time of your offending your capacity for self-control and rational judgment was moderately impaired by both your schizotypal disorder, together with the acute adjustment disorder. Consequently, I have moderated general and specific deterrence.
45I have also taken into account as a factor tending to mitigate punishment that your sentence will weigh more heavily on you than it would on a person of normal health, and I accept that imprisonment has already had a significant adverse effect on your mental health.
46In addition, I have taken into account as a mitigatory factor that upon the completion of your sentence you can expect with some certainty to be deported. In this respect I have taken into account the decision of DPP v Zhuang [2015] VSCA 96.
47It was submitted at the plea hearing by your counsel that the assertions by Sun in his victim impact statement with respect to the impact on him of the injury to his left hand was at odds with the medical report provided by Dr Julia Matheson. Based on that report, your counsel submitted that the injuries suffered by Sun, even in combination, were at the low end of the scale of serious injuries which could now be covered by the offence of intentionally causing serious injury. It was also submitted that in light of the content of the medical report from Dr Matheson, and in absence of any further medical material regarding Sun's condition, that limited weight should be placed on Sun's assertions as to the impact of the injury upon his long-term prospects in respect of sport and his career.
48It was submitted for the prosecution, however, that the serious injury to Sun was towards the moderate range for such injuries, given that full recovery of the left hand could take 12 months from the date of the injury.
49While I accept that the injuries you caused to Sun are not in the higher range for such injuries, I do not accept that in combination they are in the lower range. Sun had to have surgery for the wounds to his neck, one of which extended deep into the plasmata. There was also a posterior neck laceration involving muscle.
50Whilst I accept that the physical consequence of the injury to his left hand by itself would not prevent him from becoming a surgeon, it is clear from the victim impact statement that this is not the only barrier he faces with regard to becoming a surgeon. As a result of your attack upon him with a knife and the blood caused by his injuries he is now fearful of blood and knives. While it cannot be said with any certainty that this fear will prevent him from ultimately obtaining his life ambition to be a surgeon, there is no doubt that it has caused him to doubt his own ability to do so.
51In addition to his physical injuries it is clear from the victim impact statement that Sun has suffered considerable emotional and psychological stress, for which he is still receiving treatment. In sentencing you for this offence, as well as taking into account the nature of the injuries and the prospects of recovery from the injuries, I must also take into account the sustained nature of your attack on him, the fact that you used a knife, and that you stabbed him in the neck, which due to the presence of the carotid artery is a most vulnerable part of the body.
52With respect to the offence of reckless conduct endangering life in the early hours of the morning, you not only turned on the gas hotplates in the kitchen, but you also opened a large gas bottle behind the front door within the house. By doing so you endangered the life of Tian and Sun, not just yourself. Your actions deserve strong condemnation, as do your actions of using the knife to prevent Sun from making the 000 call.
53Would you please stand up.
Sentence
54Taking into account all the circumstances of this case, including the mitigatory factors to which I have already referred, I sentence you as follows.
55On Count 1 of intentionally cause serious injury you are sentenced to a term of imprisonment of five years and three months. On Count 2 of reckless conduct endangering life you are sentenced to a term of imprisonment of three years. On Count 3 of recklessly cause injury you are sentenced to a term of imprisonment of 12 months.
56The base sentence is the sentence of five years and three months on Count 1. I cumulate one year of the sentence on Count 2 and three months of the sentence on Count 3 on Count 1. The head sentence is therefore six years and six months. I fix a non-parole period of four years and six months.
57But for your plea of guilty you would have been sentenced to nine years and six months, to serve six years and six months.
58I declare 455 days as time reckoned as being served.
59The prosecution made an application for a forensic disposal order, and I make that order. The prosecution made an application pursuant to s.464ZF(2) of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from the mouth. I make this order on the basis of the seriousness of the offending, the granting of the order is in the public interest, and I believe it is consented?
60MS LEIGHFIELD: It was consented, yes, Your Honour.
61HER HONOUR: I believe it is consented to. I have to inform you that the police officer taking the sample is entitled to use reasonable force if you were to resist the taking of the sample. It is merely a scraping of the inside of your mouth with a cotton bud and I cannot imagine that you will have any problems with that, but I am bound to give you that warning.
62Is there anything arising out of anything?
63MS LEIGHFIELD: Not arising out of any of that, Your Honour, I don't know if my learned friend had. But we've been notified this week and had served on us, and I believe the court may have also, an affidavit from the complainant in this matter, Mr Sun. We understand from a community legal centre that there may be a s.85(b) compensation application made at some point.
64HER HONOUR: All right, I haven't seen a copy of that affidavit, and it's not relevant of course for the purposes of the sentence.
65MS LEIGHFIELD: No, but I'm just wondering, Your Honour, whether it would be appropriate to set a mention in respect to that, or whether Your Honour will just wait until any such application actually turns up.
66HER HONOUR: Until there's an application it's probably not appropriate to jump the gun.
67MS LEIGHFIELD: Yes.
68HER HONOUR: When an application is made we'll then proceed in the normal way.
69MS LEIGHFIELD: Thank you, Your Honour.
70DR ROGERS: Your Honour, I had an issue in relation to one of the mitigating factors that Your Honour spoke of.
71HER HONOUR: Yes.
72DR ROGERS: Your Honour indicated that you accepted that there was a causal link between the offending and Verdins because of Associate Professor Carroll's conclusion, which is found at his paragraph 107. At the plea hearing last month that was specifically disavowed by defence counsel, and that is why I did not cross-examine Associate Professor Carroll. The prosecution accepted that Verdins operated in terms of at the date of sentence, but it was disavowed by my learned friend in terms of at the date of the offending.
73It may not make a lot of difference to Your Honour's sentence given the fact that deportation is almost a certainty, but I did want to draw that to Your Honour's attention because that was not the evidence that fell out of Associate Professor Carroll, despite the tender of his report.
74HER HONOUR: I was under the impression that there was still a suggestion that it should be moderated to some slight degree or moderate degree because of the description that I gave in my sentence. Did defence counsel ‑ ‑ ‑
75MS LEIGHFIELD: Your Honour, my submission in respect of moderation of general deterrence and specific deterrence was linked more so to his psychiatric state at the time of sentencing, and I did say that I was not relying so far as Verdins principles were concerned on that aspect in terms of at the time of the offending. So I did actually say that, but by the same token I also said that I was relying on a reduction and in general and specific deterrence but on a slightly basis to how Your Honour's put it in the sentencing remarks.
76HER HONOUR: All right, I suppose what is important is this.
77I have allowed a reduction in terms of the fact that time in custody will be more difficult for him due to his mental condition and there has been no issue raised with that. I have also allowed a reduction in terms of the fact that his mental condition has deteriorated and there has been no dispute about that. How much did I allow in terms of the actual offending itself? Would that have made my sentence less - so less, really it goes - more or less, I am trying to think?
78MS LEIGHFIELD: More.
79HER HONOUR: More. Would it have made my sentence any greater? I think not, given the degree of other mitigating factors and that the moderation of general and specific deterrence was very moderate. Professor Carroll expressed it, to go back to his words, as affecting his self-control and rational judgement "to at least a moderate degree". This would have been a part of my sentencing synthesis. I do not think it would have affected the sentence greatly because the larger part of it related to the effect of imprisonment on him which has undoubtedly caused him difficulties in relation to his mental capacity, but I have to say that it would have had some effect.
80DR ROGERS: Look, as I said, Your Honour.
81HER HONOUR: Yes.
82DR ROGERS: It may well be a very academic discussion.
83HER HONOUR: I suppose the thing is that I accepted what Professor Carroll said and having accepted what he said, I cannot say that it did not impact on the sentence. It did. It did to some degree, along with all the other mitigating matters.
84It is really a question for the prosecution, I suppose, to decide whether it impacted so greatly as to affect the sentence. I can only say that it was one of a number of pretty compelling mitigating factors in this case. I can also say that when the prosecution looks at all the various things that you take into account in performing the judicial synthesising process, including looking at other decisions in these sorts of cases, the nature of the injuries, all these sorts of matters, I consider that the sentence fall within the range.
85DR ROGERS: As Your Honour please.
86HER HONOUR: It is for the prosecution to decide and, as I have already said, I formed this impression as to the opinion of Professor Carroll and I really cannot do anything more than say that, so the ball is in your court.
87DR ROGERS: Yes, Your Honour.
88HER HONOUR: I am sure you will go away and think about it all. All right. Thank you.
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