Director of Public Prosecutions v Liu
[2020] VCC 1683
•20 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00614
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEN LIU |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 September 2020 | |
DATE OF SENTENCE: | 20 October 2020 | |
CASE MAY BE CITED AS: | DPP v Liu | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1683 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Armed robbery - at the time of offending subject to a Youth Supervision Order - Category 2 offence - substantial and compelling circumstances that are exceptional and rare not met - COVID-19 pandemic
Legislation Cited: Sentencing Act 1991 (Vic)
Sentence: Youth Justice Centre for a period of three years – 6AAA: four years' imprisonment, with a non-parole period of two and a half years' imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Norris | Office of Public Prosecutions |
| For the Accused | Ms K. Chibert | Victoria Legal Aid |
HIS HONOUR:
1 Ken Liu, on 30 September 2020, you pleaded guilty to one charge of armed robbery committed on 26 December 2019 at Noble Park.
2 The maximum penalty for this offence is 25 years' imprisonment.
3 Tendered as Exhibit A, and read aloud in court, was the Summary of Prosecution Opening for Plea. In short, your victim, a 19 year old Nepalese youth who weighed but 54 kilograms, was making his way through the carpark behind the Chemist Warehouse store towards the Noble Park Railway Station to catch the 5.17 am train to attend work at McDonald's on Boxing Day.
4
As your victim walked through the carpark you, and two unidentified
co-offenders all of whom were wearing face coverings, saw your victim at about the same time that he observed you. Your victim attempted to flee. However, you and your two co-offenders set after him. You and one of your co-offenders, who was described as 'Unidentified male 1', caught up with your victim. You both grabbed him by the arms and pulled him into a dark corner behind Chemist Warehouse. Unidentified male 1 demanded that the victim give up his mobile phone, while you stood close by and laughed. Unidentified male 2 remained some metres away and paced back and forth and acted as a lookout.
5 Your victim initially refused to give up his mobile phone until unidentified male 1 punched your victim several times to the face. Your victim then took out his mobile phone and gave it to unidentified male 1, who demanded that your victim remove the passcode from the phone. Your victim refused to comply, and unidentified male 1 then punched your victim in the head again.
6 Unidentified male 1 then pulled out a knife and held it to your victim's stomach. He told your victim 'If you don’t remove your PIN code, I will punch you with the knife'. Your victim then removed the PIN code and gave unidentified male 1 the phone.
7 While still holding the knife against your victim’s stomach, unidentified male 1 said to your victim, 'If you call the police, I know your family, I know your house, I’ll kill you'. Unidentified male 1 then punched your victim several more times to the head and, whilst this was taking place, both you and unidentified male 1 removed your victim’s jacket and Adidas backpack, which contained personal property including your victim’s wallet.
8 As a result of the vicious assault on your victim, he lost consciousness.
9
As luck would have it, a witness who was staying nearby to the scene of this crime awoke to the sound of men yelling loudly. She heard a male voice yell 'Give me your wallet. Give me your phone. Unlock your phone' and 'I know where you live. I will stab you'. This witness called 000. Very shortly thereafter, police attended the scene. You and your two unidentified
co-offenders fled the scene and were pursued by the police. You
double-backed on your tracks and, in doing so, fell to the ground and police were able to arrest you.
10
You were taken to the Dandenong Police Station and interviewed under caution three hours after your offending. You denied being able to remember the offending because you were drunk. You responded, 'I dunno' or
'No comment' to the allegations put to you in respect of the offending.
11 Police located your victim unconscious and bleeding from the ears, nose and mouth with swelling to his jaw. Your victim's eyes were open, but he was not responsive to police. An ambulance was summoned to the scene and your victim was transported to the Alfred Hospital. Your victim regained consciousness at the hospital and experienced headache, pain in his face, and he found it difficult to talk. Your victim had facial injuries, including a laceration and swelling, and was experiencing memory loss. Fortunately, he suffered no broken bones.
12 Your victim was prescribed analgesics and was released from hospital that day. After being released from hospital, your victim attended the Dandenong Police Station to make his witness statement but was unable to complete his statement because he could not stop vomiting. Four days after the incident, when making his second statement to police, your victim described having pain in his throat, teeth and face, as well as 'A constant headache'. He described being off balance and experiencing memory issues. He also described fear of the offenders coming to his home to kill him, to make good the threat that had been made to him during the offending.
13 As a result of the fear he experienced, your victim at the time of making his second statement was in the process of moving out of his house.
14 At the time of your offending, you were subject to a Youth Supervision Order in respect to the offences of causing injury intentionally and commit an indictable offence whilst on bail. This is an aggravating feature of your offending.
15 The armed robbery committed by you, being committed in company with one or more persons, is a Category 2 offence under s.3(1) of the Sentencing Act 1991 (the Act). Under s.5(2H) of the Act, the court must make a custodial order in respect of you unless one of the criteria set out under s.5(2H)(a)-(e) of the Act apply to you. In your case, the stringency of this provision may be avoided if pursuant to s.5(2H)(e) of the Act you prove on balance of probabilities that:
“There are substantial and compelling circumstances that are exceptional and rare and justify not making an order under Division 2 of Part 3
(that is, not a sentence of imprisonment imposed in addition to making a Community Correction Order in accordance with s.44).”
16 Further, pursuant to s.5(2HC) of the Act provides:
“In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court—
(a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in section 5(1); and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to—
(i)the offender's previous good character (other than an absence of previous convictions or findings of guilt); or
(ii)an early guilty plea; or
(iii)prospects of rehabilitation; or
(iv)parity with other sentences.”
17 Further, pursuant to s.5(2I) of the Act provides:
“In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to—
(a) the Parliament's intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; …”
18 In short, the sentence which must ordinarily be imposed in your circumstances is one of incarceration, either by way of a Youth Detention Order or a sentence of imprisonment.
19 Ms Chibert of counsel, in her lengthy plea submissions (Exhibit 1) that were supported by a number of documentary exhibits, sought to establish substantial and compelling circumstances that are exceptional and rare and that justified not imposing on you a sentence of imprisonment or detention in a Youth Justice Centre. Further, she submitted that in all the circumstances a term of imprisonment being the time that you had spent on remand combined with a Community Correction Order was the appropriate sentence.
20 Ms Chibert relied upon Exhibit 4, being a report in respect of your progress under the Youth Supervision Order imposed on you by the Melbourne Children's Court on 18 March 2019. In short, from 18 March 2019 until the day of your offending, you had attended 25 of the 33 scheduled appointments under the Youth Supervision Order. Due to your positive attendance, your appointments were phased down to fortnightly supervision on 16 September 2019 to reflect your positive progress.
21 The authors of the report referred to your engagement in offence-specific interventions and that you had engaged in discussions in respect of violence and its impacts, as well as alternatives to the use of violence. The authors reported that you engaged well in interventions and reported consistent motivation to lead an offence-free lifestyle. Further, that you were motivated to be a positive role model for your young daughter. You reported to your supervisors that your alcohol consumption had reduced and that you were engaged in full-time employment with Amatil Limited.
22
The forensic point made by Ms Chibert was that from March 2019 until the date of your offending, you had complied with the Youth Supervision Order, reduced your alcohol consumption, obtained employment, and not
re-offended.
23 Thereafter, Ms Chibert submitted that your offending was caused as a result of it being communicated to you that your mother's health had deteriorated markedly whilst she was visiting Tonga. It was submitted that your response to this news was to engage in binge drinking and commit the instant offending.
24
Your mother, prior to her death in Tonga, had resided in Australia with the rest of your family. She suffered from diabetes and required dialysis.
After committing the instant offence, you were remanded in custody and, whilst in custody, your mother died in Tonga and was buried there. You were unable to attend her funeral.
25 It was put on your behalf that your mother’s death and your inability to attend her funeral because of your offending has been a motivating factor for your efforts towards rehabilitation made under the auspices of the Court Integrated Service Program (CISP). Further, it was put that your mother’s death had brought about in you a realisation of your obligations to your partner and your daughter.
26 Ms Chibert, relying on Exhibits 2, 3, 9, 10, and 11, sought to demonstrate the efforts that you have made towards rehabilitation whilst supervised by the Youth Junction and YSAS, by undertaking programs including Countering Anger and Learning Moderation (CALM) and Youth Umbrella. Ms Chibert sought to demonstrate that you had addressed areas of risk in respect of further offending, substance abuse (in particular, alcohol), anger management, and received employment support which included engaging in Youth Junction’s Cut and Shine Barbering Program.
27 In addition, Ms Chibert relied upon Exhibit 8, a bundle of references, in respect of you. In particular, Ms Chibert relied on the reference from your eldest sister who wrote as to the effects on you of your mother falling ill in Tonga and you being unable to attend the funeral owing to being in custody on remand in respect to the instant offending.
28 Whilst you are to be complimented upon the efforts that you have made towards rehabilitation they are best described as embryonic at this stage. They are insufficient, either individually or in combination, with that which was asserted as the catalyst to your offending and the consequences of your mother’s death to constitute substantial and compelling circumstances that are exceptional and rare, and which justify not making an order under Division 2 of Part 3 of the Sentencing Act.
29
On being informed, during the course of the plea hearing that my view was that you had not met the burden imposed on you by s.5(2H) of the Act,
Ms Chibert directed the arguments that she had used in support of her initial submission, to submit a Youth Justice Centre Order, rather than a sentence of imprisonment, was the appropriate sentence in all the circumstances.
30 You have just turned 20 years of age. At the time of the commission of the instant offending you were 19 years of age. You have 21 findings of guilt or convictions arising out of four court appearances before the Children's Court. Amongst those findings and/or convictions, are findings and convictions for burglary, theft, criminal damage, committing indictable offences whilst on bail, using a controlled weapon without excuse, retention of stolen goods, armed robbery, robbery, causing injury intentionally, and offences for which you were on a Supervision Order imposed in March 2019.
31 On its face, you are a dangerous young man. During the plea, I enquired of Ms Chibert as to the circumstances of your prior conviction for armed robbery. In short, at the age of 16, whilst armed with an axe and in company, you smashed your way into a convenience store, threatened the console operator, and stole $2,500 worth of cigarettes. As part of the written submissions on sentence relied upon by the Crown (Exhibit D), the facts of your offending that brought you before the Children's Court at Melbourne on 18 March 2019, were set out at paragraph 8 therein. I will not repeat them, save to say that while in company you engaged in acts of wanton violence in the small hours of the morning at a train station against a lone victim. That offending bears many of the hallmarks of the instant offending.
32 I was informed that prior to the sentence imposed on you in March 2019, you had spent six months on remand at Parkville Youth Justice Precinct. On one view of the matter, you learnt little by that experience. After being arrested for the instant offence, you were remanded in custody and spent 104 days on remand in prison. During that time, you experienced the strictures of the regime that applies to prisoners as a result of the COVID-19 pandemic. I was informed that this period on remand in prison was an additional motivating factor for your efforts at rehabilitation since April of this year.
33
You have lived in Australia since you were two years of age. However, there was a time when you were obliged to return to Tonga with your mother, however, you returned to Australia when aged seven. You are the youngest of seven children, having three brothers and three sisters. Your father is
73 years of age and suffers from diabetes and has been on dialysis since late 2017. As previously mentioned, your mother died in Tonga on 17 January 2020 while you were in custody.
34 You have supportive family and friends, as is evidenced by the references that became Exhibit 8 on the plea. In addition, you have a supportive partner who is the mother of your daughter, who is aged 16 months, and your partner is presently expecting a second child in January of next year. She presently lives with your family as her family has returned to Tonga to live.
35
The day before you came before me, you had commenced working on a
full-time basis, five days a week, unloading containers.
36 Ultimately, I was persuaded that I should order a report as to your suitability for a Youth Detention Order.
37 On 19 October 2020, I received a pre-sentence report dated 16 October 2020 in respect of you. The authors of the report find you suitable for a Youth Justice Centre Order under s.32(1)(a) of the Act, but unsuitable under s.32(1)(b) of the Act.
38 Having heard submissions from the parties, I am of the view that your prospects for rehabilitation are reasonable and are best fostered within a Youth Justice Centre and not prison. Further, I am firmly of the view that if imprisoned, you would be subjected to undesirable influences in an adult prison.
39
Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending,
I sentence you to be detained in a Youth Justice Centre for a period of three years.
40 I declare that you have spent 124 days by way of pre-sentence detention not including today.
41 I declare that but for your plea of guilty, I would have sentenced you to four years' imprisonment, with a non-parole period of two and a half years' imprisonment.
42 Mr Liu, you have been sentenced to be detained within a Youth Justice Centre for a period of three years. I have declared that you have spent 124 days by way of pre-sentence detention.
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