Director of Public Prosecutions v Miao
[2018] VCC 1290
•17 August 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-01472
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DI MIAO |
---
| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 August 2018 |
| DATE OF SENTENCE: | 17 August 2018 |
| CASE MAY BE CITED AS: | DPP v Miao |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1290 |
REASONS FOR SENTENCE
---Subject: Sentencing; plea of guilty
Catchwords: Burglaries; thefts; dealing proceeds of crime; offender aged 54 with minimal; criminal history; serious impact of inability to visit family in China while on bail or when in prison.
Legislation Cited: Sentencing Act 1991 s6AAA.
Sentence: 10 months imprisonment + CCO for 15 months.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms. T. Saville. | Office of Public Prosecutions |
| For the Accused | Mr. M. Page | J. Dowsley & Associates |
HER HONOUR:
1Miao Di, you have pleaded guilty to four charges of burglary, two charges of theft, two charges of recklessly dealing with proceeds of crime, and to a summary charge of possessing property suspected of being the proceeds of crime.
2The maximum penalty for each charge of burglary, theft and recklessly dealing with the proceeds of crime is ten years' imprisonment. The maximum penalty for the summary offence is two years' imprisonment. Those maximum penalties reflect how objectively serious each type of offence is regarded by Parliament on behalf of the community.
3These charges relate to events occurring over a three year period between January 2012 and February 2015.
4Charge 1 relates to a burglary that occurred in the first half of 2012 at a unit in Clayton, where you gained entry by jumping a rear brick fence and jemmying open the rear door. A laptop computer was stolen on that occasion, but is not the subject of these charges. A bloodstain under the bedroom door handle was later found to be yours.
5Charge 2 relates to a burglary in Linlithgow Road, Toorak in January 2013, where a window of a vehicle in the garage was smashed, and property allegedly stolen from a pocket of a jacket inside the car. In the backyard of the house, police found that jacket and nearby a jemmy tool on which DNA was found, and subsequent testing determined that DNA to be yours. When subsequently questioned by police about this incident, you said you had never been to Toorak. Asked about your DNA on a tool found there, you said it must have got there “by magic”. Phone records showed that your mobile phone was active in the Toorak area on the night in question.
6Charges 3 and 4 arise out of a burglary and theft committed in June 2014 at a house in Burwood, while the residents were away on holidays. Entry was obtained via a lower floor window. A safe and various jewellery items inside it were stolen. This incident was traced to you because a water bottle from amongst those kept by the residents in their laundry, was found under a sofa in the living room, and a swab from the lip of the bottle was tested for DNA. It was found to 100 billion times more likely to have come from you than any other person. Further, four items of jewellery stolen from that house were later found in your house.
7Charges 5 and 6 relate to a burglary and theft from a house in Balwyn on 26 November 2014. Police had in fact had you under surveillance at that time, when you drove from your home, parked close to the address in question a little before 7 pm, were observed to be wearing, amongst other things, a dark wig, and at about 8.12 pm walked out of that address and returned to your car. You had gained entry by jumping the back fence and entering the rear door, and had stolen a number of items, including cash, jewellery and personal ID cards. Personal ID cards of one of those residents were subsequently found in your possession.
8On 27 February 2015, police searched your house in Doncaster on a search warrant. They found a very large amount of goods including cash, watches and jewellery, decorative items, electronic goods, and designer-brand items such as handbags and wallets. These were found throughout your house, including in your bedroom and in a locked safe. During the search, you were seen to have concealed items in your pants, some of which fell out, and amongst these were passports and identity cards in other people's names. Some of the cards and passports had previously been stolen, including from one of the victims of Charge 6.
9Also found at your house was a bag containing a wig, gloves, torches and clothes, the wig and clothes being similar to what you had been observed wearing when under surveillance committing the last of those burglaries.
10Many of the items found at your house have since been identified as belonging to various people who had been the victims of theft. Charge 7 relates to an Apple iPad found at your house, and subsequently identified as having been stolen from a person in December 2013. Charge 8 relates to a watch identified by another person as having previously been stolen from her. These two charges are of recklessly dealing with the proceeds of crime.
11Of the other items found and seized from your house, those suspected of being proceeds of crime are the subject of the summary charge that you have agreed to have heard in this court.
12Of those items, restitution orders have been sought in respect of the more than 80 items, of which 17 people have been able to be identified as owners. That includes the two items the subject of Charges 7 and 8. There remain 192 items ranging from jewellery, watches, bottles of expensive alcohol and decorative items to some other electronics, for which no owner has yet been identified.
13I was informed that the reason you committed the offences was that you were acting out of desperation to pay off heavy debt, having borrowed significant sums of money on adverse terms in an attempt to save your previously successful business or businesses. I was told that you had borrowed from persons whom you met at Crown Casino, although it is denied that you incurred heavy gambling debts or had a gambling problem.
14I do not find any of this explanation convincing. Neither the timing of the burglaries, being spread over three years, nor the vast quantity of expensive items found in your home three months after the last of the burglaries, reflects desperation.
15However, even if I were satisfied on the balance of probabilities that you had burgled and stolen and possessed suspected stolen goods in order to pay off heavy indebtedness, that would not be justification for your offending, and would not, in my view, lower your blame - your culpability.
16I must assess the objective seriousness of the offending and the culpability of your role in it. While there are not nearly as many charges as apparently were originally laid, the charges to which you have pleaded guilty show that you broke into other people's houses on four separate occasions between early 2012 and November 2014. You had time to do so without any resident present at the time, and there were items of considerable value in each of those residences.
17I conclude that there was some planning by you of the four burglaries. On the occasion when you were under police surveillance, you drove to and parked near the particular residence, took more than an hour before returning to your car, and were wearing a wig as some disguise. Police found a bag at your house, reflecting your burglary preparation and equipment. Although not highly sophisticated, these four burglaries were not spur-of-the-moment actions. On the other hand, there was no wanton damage to the premises, and the burglaries were not frequent, but as I have said, were aimed at reaping items of considerable value.
18Your lawyer describes your commission of these burglaries as clumsy, in that you left traces of your DNA, and to that extent, they were, but you went about them with what I find was some planning. These were residential buildings, and all of these features place these burglaries in the low-moderate level of seriousness for burglaries.
19Further, there was a vast array of goods found at your home on 27 February 2015 - more than 250 items - and some by their description, being of considerable value. Although the summary charge arises from your possession of those items without reasonable explanation at the time they were found, the quantity and nature of those items show that you had not come into possession of them all on one occasion. I am satisfied beyond reasonable doubt that your coming into possession of such items was not a single isolated event where you had been tempted to keep something you suspected of being stolen.
20I regard this instance of the summary offence - of possessing property reasonably suspected of being the proceeds of crime - as approaching a high level of seriousness for that offence, but still well-short of the highest possible.
21In contrast, Charges 7 and 8, although they carry a much higher maximum penalty, were in my view at a low level of seriousness for recklessly dealing with the proceeds of crime. That is particularly because each is in respect of a single item, of not particularly high value, and found some years after being stolen.
22In my view, the most important purpose of your sentence is general deterrence. That means the need to send a message to other people who might be tempted to engage in this type of offending, that it will attract serious punishment. Just punishment is also important. The prosecution submitted that denunciation is also required. I give it some, but less weight as a sentencing purpose in this case, than general deterrence and just punishment.
23I must also consider specific deterrence, that is, to send the message through this sentence to you not to repeat such offending. You repeated your offending by burgling houses on four occasions, and over a period of years, but having been caught and charged you have not apparently committed any further offences since. That being almost three and a half years, shows that you can refrain from this type of offending for a protracted period.
24You have only one prior court appearance for offending of similar nature, and that was for handling stolen goods more than 18 years ago. I am also told that you had a subsequent court appearance in 2015, but that was for charges associated with the same location of suspected stolen goods as brings you before this court.
25In these circumstances, I consider specific deterrence has some role in your sentence but not as great as general deterrence and just punishment.
26I take into account that you pleaded guilty to these charges. You did not do so at the earliest opportunity. Indeed, when arrested and first interviewed by police, you denied committing the burglaries, denied being in the suburbs Clayton or Toorak at the relevant times, or indeed Toorak ever. You said a lot to police that I consider most unlikely to be true, including about the lack of value in items and them being cheap gifts brought by your customers from China. In a second recorded interview with police in November 2015, that is, some nine months after your arrest, you still did not admit to any of these charges and still were not, in my view, cooperative with police.
27Further, there was a contested committal hearing in August 2016. I take into account that some charges were dismissed at that stage, but the matter came to the County Court, and a trial date was fixed for 7 August 2017, with a three week estimate, allowing for severance resulting in two trials. There were two further mentions and preparation of further notices of additional witnesses over the following months, until on 11 July last year, you were arraigned and pleaded guilty to the charges now before me.
28Two plea dates were subsequently vacated; one, I am told through no fault of yours, and the other because an adjournment was requested on your behalf to enable the obtaining of a report that was not ultimately used.
29Your pleas were not at the earliest opportunity and came after a disputed committal hearing and some ongoing preparation for trial. However, I take into account that there has still been what is called “utilitarian value” in avoiding an estimated three weeks of trial with multiple witnesses having to come to court. That would have included a number of witnesses going to issues of DNA and police surveillance. The pleas of guilty therefore saved the community the time and cost of one or two trials, and saved inconvenience to an extensive number of witnesses, and you are entitled to some moderation of your sentence for that saving. I also accept that by pleading guilty, you eventually accepted responsibility for your offending. I find it harder to accept that you pleaded guilty to facilitate the course of justice.
30I also do not have anything convincing me of your feeling remorse towards the victims of your offences, but I infer from your pleas of guilty that there is at least regret for putting yourself, and now your wife and children, in the position that you have. I shall tell you after I announce your sentence what it would have been if you had not pleaded guilty.
31I turn now to your personal circumstances. You are now aged 54. I am told that you were born in China, where you were educated at tertiary level and worked in the finance world. You came to Australia at first to study, and you completed an Accounting Diploma here and then returned to China. I take it that was in the late 1990s. I am told that on your return to China you worked as a broker there for about three years, and then started a travel agency catering for people wanting to travel to Australia.
32In about 2003 or 2004, you returned to Australia to settle here and obtained Australian citizenship. However, you continued to travel back and forth between Australia and China, including working there in an electronics business for some years. I am told that in 2006 or 2007, you returned to Australia and continued to operate your travel business here.
33Your parents remained living in China. Your mother passed away in 2006, but your father continued living alone in China. Sadly, he passed away in December last year, and because you were on bail for these charges, you were not able to travel to see him before he died, nor to pay your respects or attend his funeral. I accept that that would have been a hardship and sadly felt by you.
34I am told that you had married in China before first coming to Australia, and have a daughter from that relationship who is now in her early 20s, and lives with you here. Apparently your first marriage finally ended in 2001.
35In 2016, you started a relationship with one of your clients who was visiting from China, Ms Yi Tong Zhao. You and she married two months later. By that stage, you had been charged for these matters, and indeed the committal hearing was in the same month as your marriage. It is not clear to me how much of the time since she has spent in Australia, but you have not been able to leave Australia throughout that time because of your bail conditions. Your wife has been back in China at least since March of this year. By that time, she was pregnant with your child, apparently unfortunately undergoing a complicated pregnancy. An ultrasound showed, before the child was born, that the baby was suffering kidney problems. Translated letters from your wife indicate that your baby daughter was born in June of this year with serious medical problems requiring surgery some 16 days later, and as best I can understand from the letters, there has since been a second round of surgery. The surgery had to be carried out in Shanghai which I take to have required travel and expense for your wife. Through all of this she has not had your presence as support. I accept that this must have been very difficult for her, for her other daughter, and also it is likely to have borne heavily on you.
36I am told that your daughter who was living with you as a teenager in Australia during the offending, still lives with you, is now aged about 22 and a student at RMIT. Although there is no material before me from her, and she has not been present in court, I am prepared to accept that it is likely that the uncertainty of your future in facing these charges will have been difficult for her.
37I am told that it was after these charges were brought that your business collapsed due to publicity and assets being frozen. This is not altogether consistent with what is said to have been your desperation for money to save your business leading to your committing the burglaries in question. Nevertheless, I accept that you are probably now without any independent source of income other than a Centrelink benefit.
38In July 2015, you suffered a health problem. A neurologist’s report of October 2017, diagnoses Bell's Palsy from which there was some recovery, but which has left you with ongoing facial palsy involving altered sensation, double vision and reduced sensation in part of your face. An MRI was not conducted to rule out a lesion or stroke. I am told that although you still suffer the ongoing symptoms, they do not interfere with your ability to carry on everyday activities, and would not interfere with your ability to do various types of suitable work. It is not said that your condition would make the serving of time in prison more onerous. It is not said that your condition calls for moderation of your sentence under any legal principles.
39Your counsel did rely on principles that require some moderation of a sentence where there has been delay in a matter coming before the court. The fact that the earliest of this offending dates back to the first half of 2012, does not, in my view, invoke those principles for the period before you were charged. That is because, far from using the delay to rehabilitate, you committed further offences of similar nature over the following nearly three years. Committing those further burglaries is also not a reflection of you living under the strain of not knowing if you would be brought to account.
40Following your being arrested, questioned and charged in February 2015, the fact that you were disputing all charges and went through a contested committal hearing, meant that it was almost a year and a half later that you were committed for trial on these charges. It was then a further 11 months awaiting trial before you indicated that you would plead guilty to these charges. I make some allowance for there having been many more original charges so your failure to plead guilty much earlier and avoid some of that delay was not entirely unwarranted.
41As you have not been charged with any other offending since, that shows that you are capable of not engaging in further similar offending, and is consistent with some rehabilitation being underway. I do not know enough about you to reach any view as to whether that is likely to continue, meaning I do not feel I can reach a view about whether you are likely to commit any offending in the future.
42I take into account that you have been on bail ever since being charged in February 2015. In addition to that meaning that you have had to live for the last three and a half years, knowing you face charges, and not knowing the outcome, there have been further consequences for you which have been harder than normal for someone on bail.
43That is because, as I have already said, the bail conditions prevented you from travelling to China, not only for business purposes, but also for family reasons. That meant you were unable to see your father again or attend his funeral, and has also meant that you could not travel to China to support your wife during the birth and subsequent treatment of your baby daughter. I accept that it is likely to have been difficult for you, worrying from a distance, and knowing that you have not been there for these occasions, and to support your wife emotionally, physically or financially.
44I have taken these matters into account as relevant to the impact of the delay of these charges coming to this stage, and as warranting some moderation of your sentence.
45I was urged to characterise your offending as that of a desperate man seeking to pay off debt and support your then teenage daughter, and not as you being engaged in this offending in any glamorous way. I was urged by your counsel to impose a sentence that would leave you in the community and able to travel to China, to your wife and new baby, and to do that by imposing a Community Corrections Order with a requirement to perform unpaid community work.
46The prosecution submitted that the seriousness of the offending, over a protracted period, and at targeted residential properties, requires a term of immediate imprisonment to adequately punish, convey general deterrence and to denounce this type of offending.
47I requested a pre-sentence report, and you were found suitable for a CCO but as having medium risk of re-offending. In response to a specific query by me as to the circumstances in which permission to leave Victoria to travel overseas for compassionate reasons might be granted, the report indicates that usually that would not occur within the first month of an order, and that the particular circumstances would be considered. It is ultimately up to the manager of the local community corrections region.
48A sentence of imprisonment should not be imposed if a less severe sentence would adequately serve all sentencing purposes, and I have considered whether a Community Corrections Order would be sufficient in this case.
49In my view, the overall seriousness of the offending committed by you requires that some period of actual imprisonment be served to adequately reflect its seriousness and the need for just punishment, general deterrence and to a lesser extent, specific deterrence and denunciation.
50I have considered whether there should be a head sentence with a non-parole period, or a period of imprisonment followed by a CCO. That is because I have decided that the period of imprisonment need not be more than 12 months, as I do consider that your personal circumstances of being unable to leave the state and travel to China, have already had adverse impact on you and your family, are likely to continue to do so while you are in prison and depending on circumstances as they then stand after your release.
51I cannot determine whether you are likely to be given permission to leave Victoria after your release from prison unless I impose a straight sentence without either a non-parole period or a CCO to follow. That would deprive you of the earlier release I consider appropriate.
52Ultimately, I have decided that a CCO on your release would be able to convey deterrence, and keep you under supervision and monitoring, and require you to do some further penalty by way of unpaid community work, and also leave the flexibility to the decision of a Community Corrections officer, depending on what information there is as to any pressing need to leave the state.
53Would you stand up now please.
54Di Miao, on each of the charges you are convicted and sentenced as follows.
55On Charge 3 of burglary, you are sentenced to nine months' imprisonment.
56On all of the other charges on the indictment, that is, Charges 1, 2, 4, 5, 6 and 7, I impose one overall Community Corrections Order. That will commence on your release after serving the total sentences that I impose today of imprisonment, and will last for 15 months. The conditions I impose on the CCO are that you perform 80 hours of unpaid community work, that you undergo supervision, and attend for judicial monitoring and I set the judicial monitoring, at least on the first occasion, to be at 10 am on Friday 25 October 2019.
57In addition, all usual terms of a CCO apply. I believe they have been explained to you, but it is necessary for me to briefly summarise them to you again. You must report to the local Community Corrections office within two working days of being released from prison. You must report any change in address of where you are living or where you are working within two working days of that change occurring. You must not leave the State of Victoria without prior permission of Community Corrections officers. And you must obey all lawful instructions or directions of Community Corrections officers and submit to visits by them.
58Also, and very importantly, you must not commit any further offences that could be punished by imprisonment during that 15 months of the CCO. Now, of course, burglary, theft, possessing stolen goods are all offences that could be punished by imprisonment so any of that type of offending would breach the CCO.
59If you do not comply with the CCO or commit any further offences, you will have breached the CCO and could be brought back in front of this court and re-sentenced. That would be re-sentenced on the charges on which the CCO was imposed.
60On the summary charge of possessing property suspected of being the proceeds of crime, you are convicted and sentenced to nine months' imprisonment. I direct that one month of that sentence be served cumulatively on the total sentence imposed on the charges on the indictment.
61The overall total effective sentence is therefore 10 months' imprisonment, followed by a CCO for 15 months.
62I need to ask Mr Miao do you understand the conditions and terms of the Community Corrections order? Do you agree to comply with it?
63ACCUSED: I just want to say one thing.
64HER HONOUR: Just before you do that, I think your barrister might want to know what it is. I'll let you approach, Mr Page.
65MR PAGE: Thank you, I'm grateful Your Honour. Thank you, Your Honour.
66HER HONOUR: All right, thank you. I state for the purposes of s.6AAA of the Sentencing Act, that if you had not pleaded guilty but had been found guilty after a trial of all of these charges, I would have imposed a total effective sentence of 30 months' imprisonment with a non-parole period of 21 months.
67I was also asked to make further orders and I intend to do so. There is a compensation order for $1150. That one I make. Thank you. That is in favour of the resident at the Burwood address, a burglary and theft.
68Now, my issue with the forfeiture order and restitution order as drafted, Ms Saville, is not that I wouldn't make them, but they specify that they are on conviction for burglary and theft. The forfeiture order is in respect of property found at the premises under the summary charge. It is not for burglary and theft and that is why I have not signed off on it yet.
69MS SAVILLE: Thank you, Your Honour, we can amend that and email it through to Your Honour's associate.
70HER HONOUR: I will then sign it. It was not opposed but I just want that clarified. And the restitution order it also specifies burglary and theft. It includes the two items that are the subject of Charges 7 and 8, recklessly dealing with the proceeds of crime.
71So I will just explain. I am not pausing for this to be exactly translated because these are technical matters about the order and I don't think it is vital that they all be interpreted to Mr Miao.
72His counsel can explain this issue later.
73MR PAGE: Yes.
74HER HONOUR: It was important that all of my reasons for sentence be explained through an interpreter and the sentence itself through him. That is why I am just not pausing at the moment. Mr Interpreter, if you'd like to explain, these are some technical issues about the orders. All right. Yes, for this one also, I think you are going to have to add - sorry for the restitution order - again it is not burglary and theft. There may be some items that are the subject of - there were four items of jewellery I think identified.
75MS SAVILLE: Yes, Your Honour.
76HER HONOUR: After the last of the burglaries, so they be in here. I think they are now I come to think of it. Yes, yes. The female ID, the ID cards, that part of it.
77MS SAVILLE: Yes.
78HER HONOUR: But can those other offences be added.
79MS SAVILLE: Yes.
80HER HONOUR: So that it does reflect what these arise from. I will then sign the orders.
81MS SAVILLE: Yes, Your Honour.
82HER HONOUR: And copies will be forwarded to both sides. All right now, the order, Mr Miao can take a seat while the orders are produced, because he is going to have to sign a CCO. All right, I will have that looked at by both sides’ counsel, the CCO, before it's taken to Mr Miao to sign.
83MR PAGE: Yes, can I approach to have it signed, Your Honour.
84HER HONOUR: Yes, my Associate needs to go with you, but yes. All right, I have now signed that community corrections order and Mr Miao has, so that will be copied and there will be a copy for both sides.
85I want to make clear that I have set a judicial monitoring session a long way off, in fact 14 months away. I have in mind that when Mr Miao is released after serving 10 months imprisonment - you can take a seat Mr Miao, this probably does need to be translated. When Mr Miao will be taken into custody today, and is to serve a 10 month sentence of imprisonment. When he is released, he will be on a community corrections order for 15 months. He will need to report to the nearest community corrections office to where is going to be living within two working days of being released. I am sure coming closer to that time, that once he has an address where he will be living, he will be given information about what community corrections office that will be.
86Depending on his personal circumstances, I am aware that he might seek permission to leave Victoria. That might not be immediately granted, but I do not know what the circumstances will be at that stage, how pressing the need to leave will be, or what decision the local community corrections manager will make. I have set a first judicial monitoring date four months after I expect he will have been released from prison. If, during that time, he has been given permission to leave Victoria, it will not be permission to stay permanently out of Victoria. It would only be for pressing personal, compassionate reasons I would expect, and those reasons might not exist in 10 months' time, I have no way of knowing. His family might be all back in Australia by then.
87If he is granted permission to leave at a stage that makes it likely that he will not be back in Victoria for the judicial monitoring session on 25 October. It would be possible for him to apply to vary that condition of the order by explaining all of that to the court and to change the date, but I think it is important to have set a time frame and that also makes clear that it is not expected that he will be out of Victoria for the whole period of the community corrections order. Indeed it may need to be varied by being extended, but I am not pre-empting that. An application to vary the conditions in terms of the order can be made when there are known facts and evidence to support it.
88MR PAGE: Thank Your Honour.
89HER HONOUR: All right, I will now, Mr Miao I think I have explained, there is 10 months' imprisonment, followed by a CCO for 15 months, on which you must do 80 hours of community work. They will tell you where and when, when that happens. You must report within two days of being released from prison to start that community corrections order, you must go to all the supervision appointments that the Community Corrections officer sets, and I have set a date back before me, four months after you are out of prison, 25 October 2019. You will have a copy of that on the order.
90All right, now, the last thing is I intended to put a custody note that it is Mr Miao's first time in custody.
91MR PAGE: Yes, Your Honour.
92HER HONOUR: Do you want me to provide a copy of the neurologist's report.
93MR PAGE: I would be grateful for that, just out of an abundance of caution.
94HER HONOUR: Yes, I do not provide reports unless the prisoner agrees, but ‑ ‑ ‑
95MR PAGE: No, that's probably a wise call, Your Honour.
96HER HONOUR: ‑ ‑ ‑ that will inform those assessing him on his capacity.
97MR PAGE: Yes, Your Honour.
98HER HONOUR: All right. Is it possible to add the words, "Neurologist's report by Dr Steven." All right, I will ask that Mr Miao be taken into custody and removed from the court please. The interpreter's excused. I know we've run a lot later than was expected, but we have - I think it is important that a sentence has to be explained if someone needs the assistance of an interpreter. All right. They've got to wait to bring the next person up, so I will leave the Bench for a few minutes, and everyone in this matter is excused.
99MR PAGE: I'm grateful, Your Honour.
- - -
0
0
0