Director of Public Prosecutions v M B a and W H
[2008] VSC 595
•22 December 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1426 of 2008
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MBA AND WH |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF PLEA HEARING: | 17 DECEMBER 2008 | |
DATE OF SENTENCE: | 22 DECEMBER 2008 | |
CASE MAY BE CITED AS: | DPP v MBA and WH | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 595 | |
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CRIMINAL LAW – Sentence – Manslaughter - Robbery – Limited physical involvement – Participation in a group perpetrating robbery - Pleas of guilty – Cooperation – Frank admissions – Undertaking by one offender to give evidence against co-accused – Youth of offenders – No convictions – Remorse – Prospects of rehabilitation – MBA sentenced to 3 years’ detention in a Youth Justice Centre – WH sentenced to two years and eight months’ detention in a Youth Justice Centre - Effect of s 6AAA of Sentencing Act 1991.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.W. Beale | Stuart Ward, Acting Solicitor for Public Prosecutions |
| For the Accused MBA | Mr T.J. Walsh | Matthew White & Associates |
| For the Accused WH | Mr I. Hill QC | Lethbridges |
HIS HONOUR:
Dr Zhongjun Cao died on Saturday 26 January 2008. He was 41 years old. He was the victim of an unprovoked and vicious assault by pack of cowardly youths. The attack upon this defenceless man had occurred as Dr Cao was innocently walking home from work at about 9.45 p.m. on Tuesday 22 January. You, MBA, and you, WH, were two of those cowards. Partly out of a totally misguided sense of entertainment, and partly because some members of your pack wanted to steal Dr Cao’s mobile telephone, he was set upon by you and your friends.
His was a tragic death. In a sense, it is easy to say this, because all life has inherent value, and every unnecessary death has at least an element of tragedy. But some deaths are more poignantly and inherently distressing than others. This was one such death.
Some three years before he died, Dr Cao had completed a doctorate of philosophy in mathematics at Monash University. Since then, he had been appointed to the position of Research Fellow at Victoria University of Technology. He was in good health, and was contributing significantly to our community. He was married to another talented scholar, Jingfang Zhou, who is a research associate in the Ian Wark Research Institute of the University of South Australia. They had a daughter who, at the time of her father’s death, was 17 years of age.
Dr Cao was the family’s principal breadwinner. His widow, in a victim impact statement tendered in evidence last Wednesday (17 December), has described her late husband as her best friend and soul mate. Since his death, her life has been made burdensome by loneliness and fear. Even the most insensitive persons would readily extend to her and her daughter, and to all who knew and respected Dr Cao, their most heartfelt sympathy at his senseless killing.
The events leading up to it began earlier on that Tuesday, 22 January. Each of you, and six others, had agreed to meet. Some of you, including you, MBA, wanted to find someone to bash and rob. You might not have initiated the plan, but you went along with it. I accept that you, WH, were less actively involved at this stage. Certainly, however, neither of you made any attempt of consequence to dissuade your colleagues from carrying out their scheme. You both agreed to be part of a gang the aim of which was clearly and seriously criminal. You did not want or expect that anyone would die as a result of what you were about to do. But you did expect to find a victim who would be robbed, and robbery involves the use of force, or at least the threat of it. You were prepared to be involved in that.
A number of cars made up a convoy of you and your mates. You drove to the intersection of Kinnear and Eldridge Streets in Footscray. All but one member of the group got out. You saw Dr Cao, who was walking home from after a day’s work at the University. You followed him for a while until you, MBA, and one of your friends, deliberately took a different route so that you could, in effect, run around Dr Cao and attack him from the front while the others moved in from the rear. This action demonstrated your level of commitment to a plan of attack. Your involvement, MBA, was, I find, greater at this stage than that of you, WH. I take that into account in determining your individual sentences.
By this manoeuvre, MBA, you achieved your objective. You approached Dr Cao, and punched him twice to the face. You, WH, having come from behind your victim, pushed him. Others continued the assault with further punches.
All this was bad enough. You ought easily to be able to imagine how frightening the experience must have been for Dr Cao. After all, you, MBA, were so disturbed by what happened to him that you declined active participation in the events which followed. As for you, WH, you were initially a participant partly because you feared that you might yourself incur the wrath of others in the group if you did not join them in their contemptible notion of fun. According to the statement you made to the police, you were scared into your involvement by the fear of being called a wimp or a bitch. Compared to the violence you and your mates did to Dr Cao, being called a few names is nothing. If you were scared of that, how much more terrified would you have been if you had been assaulted as he was?
But what I have already described of the attack on Dr Cao was the less vicious part. Much worse was to come. A short time after the assault began, another member of the gang took a step that will, and should, haunt the conscience of both of you for the remainder of your lives. Dr Cao was grabbed, and then flung to the ground in such a way that his head hit the pavement. As he lay there, another member of the gang kicked him in the head. Someone else removed his wallet and his phone. Either the fall, or the kick or kicks, or both, caused the injuries from which Dr Cao died some four days later. It is not suggested that either of you were physically and directly involved in the kicking, or in removing the wallet or the phone. But you were there. And you were there because you had knowingly joined in an evil enterprise to assault and rob. So although you did not intend that anyone be killed, by your presence and by what you did when you were there, you cannot escape responsibility for the robbery and the death.
Having left Dr Cao dying on the footpath, you all drove to the McDonald’s restaurant at Sunshine. A majority of you, including you, WH, decided to try another robbery. One of the reasons was that Dr Cao’s mobile phone could only be used by those familiar with Chinese script. Despite what you had done to Dr Cao, this was enough to make some of the gang want to repeat another cowardly attack on another innocent victim, preferably an Indian, in order to rob the next victim of a phone that could be used. Others of you, including you, WH, were stupid enough and weak enough to go along with this second, and therefore especially repugnant, scheme. You, WH, told the police that you were in shock at what had happened to Dr Cao. You were scared, and you were not thinking straight. This might be right. It is no excuse.
In saying this, I do at the same time understand the intense peer pressure that someone in your position would experience at such a time. And although you must have known that you had abandoned Dr Cao after badly injuring him, you did not know that he was going to die from those injuries. On the other hand, two members of the pack – David Flynn and James Diblasi - had the courage to resist that peer pressure and go home from McDonald’s; and you, MBA, were so concerned about the violence inflicted on Dr Cao that, while you joined the others in the search for the next victim, you took no further part in the events of the night. By contrast, WH, you were physically involved in them.
I appreciate, however, that each of the two who left to go home had his own car, so to that extent it was easier for them. You had to rely on others for your transport. You had witnessed the violence of which some of those others were capable. I am prepared to accept that fear for yourself had an effect on your decision to continue with them. But I can only give this limited significance in determining your punishment. After all, it was your choice to join these undesirables in the first place.
Taking all these considerations into account, nothing can excuse what happened next, just as nothing can excuse what happened to Dr Cao. At about 1.00 a.m. on Wednesday 23 January this year, you and your colleagues discovered Binesh Mosaheb walking home after catching the last train to Sunshine. As with Dr Cao, he did nothing to provoke you. You were looking for an Indian, and thought he was one. In fact, he was from Mauritius – which in its way demonstrates the mindless ugliness of racism. For a pack of cowards, however, he had two real attributes. He was alone, and he was defenceless. That was enough for your mates to select him for your next victim. You, WH, joined three others in the assault that followed. You punched Mr Mosaheb in the face. That was bad enough, but at least you did nothing more. Others added to your contribution. Mr Mosaheb was, like Dr Cao, not only punched, but was also picked up, flung to the ground, and then robbed: his back pack, including clothing and a mobile telephone, were taken. Fortunately, his injuries, although serious enough, were not fatal. After a relatively short period, he recovered.
You both travelled to Adelaide after these incidents. I am told that this was not an attempt to abscond, but a pre-arranged visit. You handed yourselves in to the South Australian police on 28 January. You have both since made full admissions. You have both also pleaded guilty to manslaughter. In addition you, MBA, have pleaded guilty to one count of robbery while you, WH, have pleaded guilty to two counts for that offence.
That is the very sad background to your presence in court today. It is tragically sad for Dr Cao and his relatives and friends. For his part, Mr Mosaheb has survived an extremely traumatic experience which probably causes him pain whenever he thinks or dreams about it. For your families, this is an occasion when they doubtless feel shame; shame which you have brought upon them. For the court, you present the very difficult task of reaching an outcome that achieves a number of aims that are not easy to reconcile. In the case of each of you, I must impose a sentence that does justice to Dr Cao, to his family and to the community. In the case of you, WH, I must add Mr Mosaheb to that list. In each case, the sentence must also recognise and denounce the criminality of your actions. It must, in addition, punish you for what you have done, and deter others from committing other very serious crimes. It must at the same time allow for your rehabilitation, and for the fact that you are not only young but have no history of offending. Indeed, both of you have positive attributes.
This brings me to another reason why your presence in court today is an occasion for sadness and regret. Before 22 January, you both faced a future of promise. Neither of you had before then been in trouble with the police. You both come from supportive homes. Your relations with your parents have suffered the usual strains of adolescence, but otherwise have been good. You have no history of drug abuse. You continue to be supported by your families following the events that bring you here. You are both intelligent. You both have the capacity to engage in satisfying careers that will enable you to draw on your abilities and that will benefit you, your families and the community.
By what you both did on 22 January, and by what you, WH, did early the next morning, however, each of you put that future at risk. In several hours of mad, senseless criminality you did great harm not only to your victims but also to yourselves.
It seems that both of you recognise this. As a result, you have suffered from depression and remorse since you gave yourselves up. That you have suffered remorse is a very good thing. To the extent that it is genuine, and not the result of feeling sorry for yourselves, it is in one sense the must appropriate punishment of all. I am satisfied that you have both demonstrated genuine remorse. I give you credit for that.
There may be a related danger. It is that feelings of worthlessness will become overwhelming. That would be destructive of yourselves, and perhaps of others. And it would be wrong, because you are not worthless. The hope remains that, despite the evil that you did on this one night, you will nevertheless lead satisfying lives, and at the same time contribute positively to the community. Each of you has the intelligence and character to make that happen. What you need is the will. In particular, you need the capacity to differentiate between bad role models and good, and the strength to resist the influence of the bad. You lacked that capacity in the period leading up to the events of 22 January. The company you then chose was very bad indeed. It is vital that, especially in the next three years, but generally for the remainder of your lives, you make the right choices.
I will now speak about each of you in turn. MBA, you were born on 19 July 1990, and are 18 years and four months old - slightly younger than WH. You are the oldest of four siblings; you have two younger brothers and a younger sister. You have been in detention for almost a year. During this period, you have demonstrated a capacity to make the right choices. Staff at the Melbourne Youth Justice Centre describe you as a model client. You have displayed no behavioural issues, but rather have been extremely compliant and respectful. You have engaged appropriately with staff and other detainees. For reasons which do you credit, you did not seek bail because you did not want to leave your younger brother. He is also in detention as a result of the events of 22 January.
The fact that neither of you is at home, however, has meant that without your help in his taxi service business, your father has been unable to continue with it. And because your brother is an accused in relation to these matters, you have not been asked to do what WH has in fact undertaken to do: to give evidence at the trial of other accused, and to do so in accordance with a statement he has made to the police. WH deserves credit for that. This credit is not open to you.
Your hope is that, like your father, you will become a motor mechanic. Consistently with this, last year you successfully commenced studying for your Victorian Certificate of Applied Learning at Copperfield College. In 2007, you participated in a Student Leadership Training Program Workshop, concentrating on connecting with less confident students and on achieving worthwhile goals in youthful relationships. Unfortunately, all that was forgotten on 22 January. Similarly, you were awarded a Bronze Certificate from the SCOPE Young Ambassador’s Program. This seeks to create awareness of the problems of the disabled. It is again very unfortunate that you failed to translate your participation in this program into insight into the harm that can be done to innocent citizens by stupid young men.
You have worked part-time not only with your father, but also with Hungry Jack’s and McDonald’s. In March 2007 you were “crew member of the month” at Hungry Jack’s, and in May that year you completed the “working effectively in a retail environment” component of Certificate 3, Retail Operations with the Hungry Jack’s Registered Training Organisation. You have shown a capacity to apply yourself at both work and study. This has continued through the past year, despite your incarceration, as is shown by the six certificates of achievement or satisfactory completion that have been awarded to you in the past eleven months. Your desire is to complete year 12 and then, eventually, to carry on your father’s business. This is a commendable ambition. You must not again put it at risk.
You have pleaded guilty to one charge of manslaughter and one of robbery. Had you not done so, I would have sentenced you to four years and six months’ imprisonment for manslaughter and three months’ imprisonment for robbery. I would have taken into account in fixing those sentences your youth, the fact that you have no prior convictions, and your prospects of rehabilitation. I would also have taken into account the limited role you played in the commission of the crimes that lead to Dr Cao’s death, and in the robbery. I nevertheless add to the mix the fact that you were prepared to leave the others and run around Dr Cao so that he could be attacked from the front as well as from behind.
On the other hand, and importantly, I give you credit for not joining the attack on Mr Mosaheb. I have taken these and all the other considerations which the law requires me to take into account in deciding upon the appropriate sentences in your case. In particular, having received a pre-sentence report about you, I believe that there are better than reasonable prospects for your rehabilitation. I also believe that you are likely to be subjected to undesirable influences in an adult prison.
Taking all these considerations into account, on the charge of manslaughter I sentence you to a period of three years’ detention in a Youth Justice Centre. On the charge of robbery, I sentence you to two months’ detention in a Youth Justice Centre. I direct that the sentence on the count of robbery be served concurrently with that for manslaughter. The result is an effective term of detention of three years.
You have been held in detention for 330 days. I direct that this period be counted as having already been served as part of this sentence, and that this direction be entered in the records of the court.
I now turn to you, WH. You are the only son of your parents, who operate a travel agency. Your mother is also a Japanese translator. You were born in Xian in China on 26 May 1990. You are now, therefore, 18 years and seven months old. You came to Australia with your parents in April 1997. By working hard, your parents were able to buy a home in Caroline Springs, where you met your co-offenders. Your relations with your parents are generally good, though you and they have experienced the strains which so often accompany adolescence. You are fortunate, as is MBA, to have loving parents who have continued to support you during the difficult period since your arrest. You are at present on bail, but before that were held in detention for 276 days.
At school you proved to be a better than average swimmer and a talented musician. Through your musical skills, you obtained a scholarship to Westbourne Grammar School at Hoppers Crossing. You have also attended Mowbray College, which is in Caroline Springs, and Chisholm Catholic College, in Braybrook. It was at Chisholm that you successfully completed year 11 in 2007.
You made friends at school, although you also experienced racism and bullying during some of your schooling. This is very unfortunate. Both can do great harm. Neither has any redeeming aspect whatsoever. In your case, the racism and bullying perhaps resulted in your becoming especially needful of the approval of your peers, and therefore especially vulnerable when the peers you chose to associate with were unworthy of respect.
Your participation in the events of the night of 22 January and the early morning of the following day was limited in the way I have described. You were not as involved as MBA in the deadly attack on Dr Cao. Yet you remained an active member of the group after that attack, whereas MBA did not. You were therefore involved in two robberies where he was only involved in one, although your direct and active involvement was in each case relatively minor, and in the case of Dr Cao significantly more minor than that of MBA. I must take these factors into account when comparing the degrees of criminality of each of you.
You have given an undertaking to give evidence for the prosecution in the trial of others involved in the death of Dr Cao. This is an important factor in your favour. MBA has not given a like undertaking. But for reasons I have already set out, he was not asked to do so. For the purposes only of a comparison between your post-offence conduct and his, therefore, the significance of your undertaking has been limited.
Like MBA, you have demonstrated a capacity for part time work while pursuing your studies. You too have worked with a fast food chain, in your case the McDonald’s restaurant in Caroline Springs, where you were a crew member for two years. The store manager speaks of you as being punctual, pleasant, and always willing to lend a hand. She describes your commitment as “exceptional”. I take her reference into account in your favour.
I have considered the two other references that have been tendered on your behalf. They speak of your intelligence and musical talent. They also describe you as friendly, respectful, polite and well behaved. Your family is said to be loving and close. I accept the accuracy of these opinions. They count in your favour.
You were arrested and placed in custody on 28 January this year. For the next nine months, until being released on bail on 29 October, you presented no issues for the Melbourne Youth Justice Centre, and exhibited what your pre-sentence report describes as “strong prospects for rehabilitation”. Nevertheless, custody was not easy for you . For one thing, you suffered from depression. It seems that, in part at least, this reflected your remorse. I accept the opinion of Pamela Matthews, the forensic psychologist who saw you on 3 December, that that remorse is genuine and deeply felt, and that this is, in her words, “a significant positive prognostic indicator”. You want to prove that you can be a better person. The opportunity is yours. Seize it.
Basically, it is up to you. The court can assist in one way, or make it harder for you in another. It can do this by its decision to sentence you to one or the other of a Youth Justice Centre or an adult prison. Sometimes the choice is taken out of the hands of the court by the character and prior conduct of the offender. In those cases, an adult prison is the only appropriate option. This is not so in your case. I am satisfied that your prospects of rehabilitation are very good. I am also satisfied that, given your character, you would be subjected to undesirable influences in an adult prison.
In these circumstances, the appropriate sentence in your case is, on the charge of manslaughter, two years and six months’ detention in a Youth Justice Centre. Had you not pleaded guilty to the charge of manslaughter, I would have sentenced you to four years’ imprisonment on that charge. You also pleaded guilty to two counts of robbery. On the first count, involving Dr Cao, I sentence you to two months’ detention in a Youth Justice Centre. On the second, involving Mr Mosaheb, I sentence you to three months’ detention in a Youth Justice Centre: a total on those counts of five months’ detention. Had you not pleaded guilty to those charges, I would have sentenced you to three months’ imprisonment on the first count and five months’ imprisonment on the second. In each case, the sentence on the second count has been increased because of your continued participation in a criminal enterprise when you knew the level of violence that might be involved in the second part of that enterprise.
As with MBA, I would - had you not pleaded guilty - have taken into account, in fixing the sentences of imprisonment, your youth, the fact that you have no prior convictions, and your prospects of rehabilitation. I would also have taken into account the limited role you played in the commission of the crimes that lead to Dr Cao’s death, and in the commission of each robbery. I have similarly had these considerations in mind when fixing the several periods of detention in a Youth Justice Centre.
I direct that two months of the second sentence on the count of robbery be served cumulatively with that for manslaughter. The balance of the sentences for robbery are to be served concurrently with the sentence on the count of manslaughter. The result is an effective term of detention of 2 years and eight months. I declare that a total of 276 days’ detention has already been served as part of this sentence. I direct that this declaration be entered in the records of the court.
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