Director of Public Prosecutions v Liu

[2017] VCC 1911

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT BALLARAT

CRIMINAL JURISDICTION

CR 17-01975

DIRECTOR OF PUBLIC PROSECUTIONS

v

KUN LIU

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Ballarat
DATE OF HEARING:	13 December 2017
DATE OF SENTENCE:	13 December 2017
CASE MAY BE CITED AS:	DPP v Liu
MEDIUM NEUTRAL CITATION:	[2017] VCC 1911

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Sentence – stalking – aggravated burglary.

Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic).

Cases cited: R v Verdins [2007 VSCA 102]

Sentence: Total effective sentence of 271 days imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P.L. Bourke	Office of public Prosecutions
For the Accused	Mr G. Gilbert SC	Chua Tan Associates

HIS HONOUR: 

1Mr Liu, you can remain seated.  It is necessary for me in pronouncing this sentence to do it in public and to go through a number of matters.  The purpose of that is that so that the reasons, most importantly, as to the sentence imposed on you are recorded and that it becomes a public record.

2As Exhibit A demonstrates, the background of these crimes appears longstanding.  Longstanding not only because of the knowledge of the complainant and the victim going back to 2013 but having read Dr Danny Sullivan's report, which will be Exhibit 1 on the plea, clearly there have been longstanding delusional problems suffered by Mr Liu.

3To understand this matter one has to read the Sullivan report.  It is clear that, as he has concluded in his opinion at paragraphs 35 through to 46, Mr Liu is a person who has a background of adjustment disorder, with mixed anxiety and depressive reaction.  He has. and fits the pattern of what is called an intimacy seeking stalker, intimacy seekers holding fantasies of romantic love and imbue their target with their affection and idealised qualities.  In Mr Liu's case, his affection for Ms Lin has crossed into the domain of the erotomanic.  He has developed delusional beliefs about her reciprocation, despite her overt disavowal of interest and indeed frank statements of rejection. 

4I find that the foundation for that diagnosis is clearly established in his actions with the victim, and in particular his explanations to the police in his record of interview, in particular after the 17 March aggravated burglary offence.

5Dr Sullivan notes that this type of behaviour sometimes occurs in overseas students who have great difficulty in coping with the open and uncloistered sexual and social mores which are part of Australian life compared to their background.  It is of interest, however, that in this instance Dr Sullivan, who I do not have to talk about as to his qualifications and standing in Victoria as a consultant forensic psychiatrist of high repute, considered that such behaviour transcends that sort of reaction, and that Mr Liu has developed what he calls a persistent delusional disorder erotomanic subtype. 

6This psychotic obsessional disorder is characterised by delusional inferences of love from the subject, misinterpretation of evidence to the contrary, and a range of assertive approaches which are persisted with irrationally, despite legal sanctions.  Erotomanic stalkers' delusions of love override rational appreciation of the risks and benefits of behaviour.

7It appears while in prison, he has developed further delusional beliefs, resulting in alleged sexual assaults of female guards, et cetera, matters of which I am not concerned, but which seem totally consistent with his background.

8It is to be noted that insofar as the offending is concerned in regard to a Verdins consideration (R v Verdins [2007 VSCA 102]), Dr Sullivan at paragraph 41 said, "I consider there was clear causal association between the delusional beliefs that Ms Lin reciprocated his love for her despite her frank statement to the contrary and information from others, including acquaintances and the making of an intervention order.  His mental functioning was impaired, preventing him from thinking clearly or making calm and rational choices.  Rather, the pervasive effect of his delusional beliefs was associated with bold efforts to approach Ms Lin.  He was disinhibited, uttering frank sexualized comments contrary to social mores and unusual for his cultural background and that of his peers.  His understanding of the wrongfulness of his conduct was markedly reduced by his fervent delusional beliefs that Ms Lin's statements of rejection in fact meant the opposite.  His judgment was grossly impaired and indeed remains so in prison, with conduct that may have resulted in further charges.”

9As to sentencing, Dr Sullivan points out to the Court that importantly contact must be restricted as to the alleged victim, but notes that erotomanic stalkers are frequently persistent and undeterred by sanctions, or their delusions of being in love may transfer to others.  It is suggested that such a disorder may require antipsychotic or antidepressant medications by way of treatment, although Dr Sullivan was unsure what Mr Liu is currently being prescribed, and no doubt what he may eventually be hopefully prescribed in China.

10Against that background, the crimes evolved.  The circumstances making up the stalking clearly have to be looked at from the victim's point of view.  They have to be assessed by understanding the motivation of the prisoner, and such motivation does not in any way take away from the feelings that Exhibit B show from the victim impact statement that have unfortunately resulted from this delusional thinking.  As she said, "Since this happened I've been scared.  I always think he will hurt me or kill me.  I think he's too crazy". 

11As a result of these issues her parents, no doubt with concern for her safety, ordered her return to China, which again has unfortunately impacted upon her given that she had come to Australia to study to get a degree.  As she says, she misses her friends that she came to study with and they are still in Australia.  She states that she feels safe that he is in gaol and I cannot do much more than that insofar as the powers of this Court. One can only hope as Dr Sullivan has indicated that appropriate treatment is given to Mr Liu.

12Taking into account these matters, certainly it was appropriate for the intervention order to be issued.  The stalking matter has been pleaded to.  I find, in the circumstances, despite the concern of the victim, culpability is still at a fairly low level, as submitted by Mr Gilbert in his written submissions, Exhibit 2 on the plea.

13The aggravated burglary it seems to me, is a very valuable plea.  I would have thought, had the matter gone to trial, it would have been a very difficult to establish, albeit the attempt of kissing.  However, this Court has before it a plea to two crimes.  They are, of course, serious crimes.  The imprisonment that can be imposed in regard to the stalking offence is one of ten years.  The aggravated burglary punishment, is the highest that can be given under the Crimes Act, and indicates the seriousness with which Parliament looks upon these types of crimes.

14However, in all the circumstances I find that the culpability for such crimes must be put, certainly in regard to the aggravated burglary, at the lowest level and in regard to the stalking in the lesser level anyway. At no time does the Court underestimate the concern that the victim would have suffered.

15The circumstances of his remand perhaps are indicative of the difficulties that sometimes occur with persons in Australia who are not familiar with the legal system, and perhaps limited in their understanding of Australian ways and laws by way of their capacity to communicate.  We now have the situation that following his arrest on 17 March 2017, he has been in gaol for a period of 271 days.  It seems to me that is in excess of the maximum penalty that should have been imposed for of these crimes, and that is what I intend to impose by way of an aggregate sentence in regard to both offences.

16Mr Prosecutor, if I just make an aggregate sentence in regard to both matters, a straight sentence of nine months, that is all I need to do and declare that the 271 days served to date are deemed as service of this sentence?

17MR BOURKE:  Two seventy-one is not nine months, it is something shy of nine months.

18HIS HONOUR:  Two seventy-one is the one I will make the declaration on.

19MR BOURKE:  You should impose 271 days.

20HIS HONOUR: Sorry, I apologise. I impose a sentence of 271 days and declare pursuant to s.18 of the Sentencing Act that the 271 days served to date are to be deemed service of this sentence.  In the circumstances I will grant the 464ZF application to the prosecution.  I do not think it is ever going to be needed, but who knows.  I am not particularly interested in making a disposal order as to the phone, Mr Prosecutor.

21MR BOURKE:  If Your Honour pleases.

22HIS HONOUR:  I will sign the order.  Mr Interpreter, would you indicate to
Mr Liu that the effect of this sentence is such that the period that he serves is the period that he will have to serve in regard to both these charges.  The effect of that probably is that the Immigration Department will at some time come and claim him and he will be put into a detention centre, I think, and more than likely he will be on his way to China, but he will get advice from his legal advisors in regard to that.

23Good luck.  Make sure you keep on that medicine, it is very important for you.  I had better make a 6AAA declaration that had there not been a plea to both these matters, the aggregate sentence that I would have imposed would have been a year and a half.

24MR BOURKE:  If Your Honour pleases.  Your Honour, I will hand up a custody version of the 464ZF.

25HIS HONOUR:  Yes, which is appropriate.

26MR BOURKE:  On the strength that although Mr Liu will today have to be released from prison.

27HIS HONOUR:  When is the paperwork done?

28MR BOURKE:  Almost immediately, Your Honour, I understand.

29HIS HONOUR:  Don't they have to take him back?

30MR BOURKE:  I don't think they have to take him back to prison.

31HIS HONOUR:  Officers, what is the position if someone doesn't have to serve any more gaol.  Is he released from the watch house here?  He is.  Maybe we need the other one to give him.  I wonder in the circumstances if it is needed, given what is going to happen to him.

32MR BOURKE:  It's a matter for Your Honour.

33HIS HONOUR:  Mr Gilbert, is there any other reality than the fact that he is going back to China?

34MR GILBERT:  No, there is not, sir, because as indicated in the outline of submissions, once his visa is cancelled - and he didn't apply for review, he has not applied for any appeal in relation to that.  Theoretically he could have - it's very difficult once you've had a visa, but his intent is to go back.

35HIS HONOUR:  He would absolutely have no hope, being convicted of these two matters.

36MR GILBERT:  No, absolutely not.

37HIS HONOUR:  I don't think there's any point, Mr Prosecutor.  I will hand the matter back.

38MR BOURKE:  If Your Honour please.

39MR GILBERT:  The only practical thing I'm not sure about, sir, is that strictly speaking a watch house can also double as a detention centre and so I'm not sure whether he needs to be held here pending - - -

40HIS HONOUR:  He cannot be released, that is for sure.

41MR GILBERT:  No, that's so, but all watch houses and police stations are - I'm not sure if they're gazetted but they become effectively detention centers.

42HIS HONOUR:  Senior, you had better just watch that.  He has served his sentence but he is wanted by way of Commonwealth for detention so he would not want to be released.

43CORRECTIONS OFFICER:  We'll make the phone call.

44HIS HONOUR:  Yes, I think that is the answer.  I think that is all I need to do, Mr Prosecutor.  I will hand that order back.  I just can't see the point of me making it.

45MR BOURKE:  No, I understand Your Honour's thinking on that - not that it's really a matter for Your Honour nor the Crown, but in the absence of immigration having already issued what they need to issue to detain Mr Liu, my understanding is that he will have to be released from custody today.

46HIS HONOUR:  As the officer said, they will make a phone call.

47MR BOURKE:  If Your Honour please.

48MR GILBERT:  Certainly my instructor is an accredited immigration specialist and so we will be able to work out - it's not uncommon.  One hears of it when, say, the police intercept somebody and they discover that they're actually unlawful.

49HIS HONOUR:  I could add another couple of days but I don't think there is any point to that.  I think he has done plenty in the circumstances.

50MR GILBERT:  Yes.

51HIS HONOUR:  All right, thank you both.

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