Director of Public Prosecutions v Nan
[2021] VCC 644
•19 May 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-01568
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANG NAN |
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JUDGE: | HER HONOUR JUDGE GWYNN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 April 2021 |
DATE OF SENTENCE: | 19 May 2021 |
CASE MAY BE CITED AS: | DPP v Nan |
MEDIUM NEUTRAL CITATION: | [2021] VCC 644 |
REASONS FOR SENTENCE
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Subject: Criminal law
Catchwords: Theft; attempt to obtain property by deception; armed robbery
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:
Sentence:10 months imprisonment & CCO (18 months duration, mental health treatment; 18 month good behaviour bond; $1,000 fine.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Plummer | Office of Public Prosecutions |
For the Offender | Ms J. Willard | Papa Hughes Lawyers |
HER HONOUR:
1Shang Nan, properly known as Nan Shang, you have pleaded guilty on indictment to three charges of theft, one charge of attempting to obtain property by deception and one charge of armed robbery.
2In sentencing you for these crimes I must have regard to the maximum penalties for the offences that you have committed. The maximum penalty for theft is 10 years imprisonment, attempting to obtain property by deception carries a maximum of five years imprisonment, and armed robbery carries a maximum penalty of 25 years imprisonment. These penalties reflect the seriousness with which Parliament regards these offences.
3The circumstances of your offending were set out in a document entitled, "Summary of Prosecution Opening" dated 17 May 2021. It is a detailed document and represents an acceptance by you of all the elements of the offences to which you have pleaded guilty and the factual basis on which I am to sentence.
4In brief terms, the offences were committed at the ILK Apartments complex in Toorak Road, South Yarra, between 3 May and 14 June 2020. You resided at those apartments at that time.
5The apartments in that complex have a common entry point which leads to a foyer, from which those entering the building can access a lift which would take them to their respective apartment. Residents use a security fob to enter the complex and then to use the lifts. Residents can admit guests to the building by using an intercom. The building is fitted with CCTV cameras which capture the foyer, lifts and other areas around the apartment complex.
6The victims of the theft offences were all residents of other apartments in the ILK Apartments complex. The victim of the attempt to obtain property by deception and armed robbery charges was a self-employed delivery driver who worked through an app called Today Australia, which I am told works in a similar fashion to Gumtree.
7I turn now to Charge 1. Charge 1 is a rolled-up charge. On 3 May 2020, you left your apartment and went to the foyer of the ILK Apartments. Once in the foyer, you picked up a package that had been delivered to Minjie Mao, who lived in another apartment in the complex. The package contained five Tommy Hilfiger T-shirts valued at $109.95. You were captured on CCTV picking up the package and entering the lift before returning to your apartment. You retained that package.
8On 12 May 2020, you again left your apartment and entered the foyer of the ILK Apartments. You picked up a further package that had been delivered to Ms Mao, containing eight plastic Beach Tacs valued at $24.34. You were captured on CCTV picking up that package and entering the lift before returning to your apartment. Once you realised the items were of no value to you, you threw them in the bin.
9Turning now to Charges 2 and 3.
10On 3 June 2020, you left your apartment, entered the foyer and this time picked up two packages that had been delivered to other residents of the apartment complex. One package, addressed to Kate Duff, contained a Damsel & Silk midi dress valued at $67.20. The second package, addressed to
Jennifer McKellier, contained dog toys valued at $46.20. You were again captured on CCTV picking up the packages and entering the lift before returning to your apartment. You did not return the packages to the foyer and retained possession of their contents.11In my view, this series of offending is relatively minor. It was unsophisticated and poorly executed, but you still have chosen to take items not belonging to you from other occupants of the same apartment complex who had purchased items they particularly wanted and you, it would appear, did not.
12Candice Bass, the building manager of the ILK Apartments was notified about missing packages and obtained the CCTV footage depicting the packages taken by you, which she then provided to police. You in effect were always going to be identified.
13I turn now to the offences involving victim, Mengwei Wang.
14On 14 June 2020 at approximately 12:05 am you contacted Mengwei Wang, who was working as a delivery driver and advertised his services through an application called Today Australia. You asked Mr Wang to go to the supermarket, purchase some grocery items and deliver those items to your apartment. Mr Wang agreed but wanted to be paid upfront. He asked you to send him a screenshot of your phone banking app to prove that you had transferred the necessary funds.
15You used internet banking to transfer $1 into Mr Wang's account and then took a screenshot of this transaction, altering that image and creating screenshots to make it appear that you had transferred a total of $360 via three separate payments into Mr Wang's account. You then sent those altered images to
Mr Wang and falsely claimed that you had paid in advance for the groceries.16Mr Wang attended a supermarket, purchased the items you requested and paid for them. After he left the supermarket, he called you and you asked him to also purchase some food from McDonald's and deliver both the groceries and the McDonald's to you.
17When Mr Wang arrived at your apartment complex, he called you.
18You met Mr Wang in the forecourt of the apartment complex and helped him carry the bags of groceries into the foyer. Once in the foyer, Mr Wang asked to see your phone as he wanted proof that the payment had been made into his account. You told Mr Wang you had left your phone upstairs. You refused his request to go with you to see your phone. Mr Wang told you to go and get your phone so that he could confirm that payment had been made and understandably refused to leave the groceries until he had proof of payment.
19You returned to your apartment and, after being away for about five minutes,
Mr Wang called you and told you he was going to leave and would return with the groceries the following day if he had received payment.20You then became angry, collected a knife from your kitchen and placed it in a plastic bag. You later told investigators that you were furious because you believed that Mr Wang had agreed to leave the McDonald's food for you, and he was failing to honour that agreement.
21Mr Wang collected the groceries and McDonald's and walked from the foyer towards Toorak Road.
22You then came out of the lift into the foyer carrying the plastic bag containing the knife. You yelled at Mr Wang to stop, then ran to him and confronted him in the forecourt of the building. Mr Wang placed the bags of groceries onto a bench next to him where he was standing. You yelled at Mr Wang "I just want the burgers tonight", to which Mr Wang responded, "I haven't received the money so I won't be leaving the burgers". You yelled at Mr Wang and produced the knife, pointing it in Mr Wang's direction as you stood close to him. You told him that he caused too much trouble and made you wait three hours for the groceries. As you yelled, you waved the knife around and hit the bench, striking the groceries.
23Mr Wang, who had been placed in fear by this stage, replied "Okay mate, take the stuff".
24While you were pointing the knife at Mr Wang you took the bag containing the McDonald's food from him and walked back to the elevator, constituting Charge 5, that of armed robbery. You left the groceries on the bench near Mr Wang. He grabbed those groceries and returned to his car in a nearby car park.
25An independent observer, Mr Keen, called 000 and asked police to attend.
26That incident was captured on CCTV footage.
27You were arrested and interviewed by police with the assistance of an interpreter on 16 June 2020. In that interview you made substantial admissions, including a concession that you would have made Mr Wang "a bit scared'. You also told police that you "didn't mean to hurt him" and that you "wanted to let [your] temper out and at the same time scare him a little bit".
28Mr Wang was entitled to make a victim statement, but no victim impact statement has been filed. Be that as it may, Mr Wang was simply going about his job when he came across you and your threatening response to his entitled refusal to hand over items which he had bought and paid for and you had not. It has undoubtedly made him more conscious into the future. Indeed, the prosecutor helpfully points out his committal evidence that he was unable to work after this offence being committed against him. You scared him. In his statement to police he described himself as very, very fearful and very terrified.
29Your counsel submitted that the charge of armed robbery falls within the low to mid-range for offences of this type. In making that submission she refers to its apparent spontaneity, the absence of planning, the absence of injury to the victim and because your offending did not occur in company or with the use of disguise. She notes also that the property stolen, the McDonald's food, was of nominal value. I do accept this characterisation made on your behalf.
30Materials tendered would indicate that you were under a degree of personal pressure at the time of your offending. This goes part-way to explaining your offending; it does not excuse it. Your offending has an air of anger and frustration, which you will obviously need to learn to control in order to reduce any future risk.
31The Sentencing Act obliges me to take into account the stage at which you entered your pleas of guilty. You indicated your willingness to plead guilty to these charges following a case conference before me held on 30 April 2021. You were arraigned on the charge of armed robbery at that time, pending the finalisation of a plea indictment.
32Given that the complainant was cross-examined at committal proceedings, it cannot be said that your pleas were given at the earliest opportunity. However, I accept, as your counsel submitted, that your pleas are demonstrative of your willingness to accept responsibility for your offending, as well as to facilitate the course of justice.
33There is also clear utilitarian value in saving the community the expense of a trial, particularly in the context of the Court's significant trial backlog caused by the COVID-19 pandemic.
34These are all factors that will be taken into account in your favour.
35Tendered on your plea was a psychological assessment report authored by Warren Simmons, psychologist, dated 19 April 2021. In that report, Mr Simmons helpfully sets out your personal background.
36Whilst not going into all that detail, I am told you are now 29 years of age. You were born in Nanjing City in the Nanjing Province of China and are the only child of your parents. Your mother has remained at home and your father has his own tourism business. You report they are in good health and have a harmonious relationship with you and have been in contact whilst you have been on remand.
37You described your upbringing to Mr Simmons as comfortable, that you are from an "ordinary family", with your education an extremely important focal point of your life. You described having dedicated a great deal of your time as a child and teenager to study, and consequently having few interests outside your education and limited contact with friends outside of school.
38You were a bright student and did well at school, though experienced some bullying. You attended university and completed a degree in Logistics and HR. You also travelled to the United States and attended a community college in Dallas, where you undertook Foundation of Business studies for a period of some two years. You then came to Australia to commence a Master's degree in Commerce and Marketing at Monash University. You studied for three years, but struggled to complete the last four units of that degree and returned to China for a time with those units still outstanding. Upon your return to Australia, you transferred to Swinburne University and were enrolled as a student at the time of these offences. You intend to return to studies.
39You have had no long-term romantic relationships.
40You reported to Mr Simmons that you occasionally drink alcohol at social occasions, though generally no more than one or two drinks. You do not use drugs.
41You have no significant medical problems.
42As to your mental health, you report having experienced depression and anxiety in the past, particularly in the period after you did return to Australia in 2020, before you resumed your studies. You also described being "absent-minded", which has been more problematic since your arrest, and, with the exception of contact with an elderly man who assists you with English whilst in custody, you appear to be quite isolated. You report being agitated when alone and acknowledge kicking your cell door and breaking objects. You apparently see your future as negative but denied to Mr Simmons feelings of hopelessness. It appears your mood generally could be accurately described as fluctuating.
43With respect to the offending before me, you explained to Mr Simmons that you were struggling emotionally after having been "ripped off" by a friend and, as a result, losing your only additional source of income when the car you were using as a driver for a ride share service was repossessed. In response to feeling bored and isolated in Australia, you were also gambling heavily in the lead-up to these offences, losing some $20,000 in one day at one point. You lost the money that your family had given you to support your life in Australia, which was a source of embarrassment and shame to you, and you seem to have become depressed in that context.
44You did express remorse to Mr Simmons and did not seek to justify your behaviour.
45My Simmons expressed some concern that you may well have been suffering from depression and recommends that you be referred to a Mandarin speaking psychologist to assist you in dealing with those depressive symptoms and your problems with gambling. I encourage you to take up this recommendation.
46I accept Mr Simmons' opinion that there appears to be little to suggest that you are at high risk of reoffending and that your prospects of rehabilitation are quite positive.
47Those prospects, in my view, are enhanced by the simple fact that you have no prior criminal history.
48In addition, as a direct consequence of your offending, you have now spent some 337 days in custody. I understand, as I have already described, this experience has been quite isolating as you have only had one Chinese-speaking person who has assisted you.
49You have had no visits and have engaged in some self-harm.
50In addition to the isolated nature of that setting you have been in custody for much of the Corrections response to the COVID-19 pandemic, which has meant at times a more restricted environment in terms of time out of cells and access to programs.
51You have also been genuinely concerned about the prospects of deportation, which I accept has weighed heavily upon you and added to the burdens I have referred to and associate with your time on remand.
52Overall, in your particular case I see the 337 days you have spent on remand as a considerable sanction and a deterrent into the future.
53I turn now to your prospects of rehabilitation.
54Your counsel submitted that you have good prospects of rehabilitation, particularly if you receive appropriate support in relation to your mental health and your gambling. She points to your relatively young age, lack of criminal history, identified remorse, otherwise good character, you being free of drug or alcohol addiction, and your good education. She also submits that you have not previously had the advantage of treatment for your mental health and gambling problems, and I accept these submissions.
55The submission made on your behalf as to sentencing is the court should consider a short, sharp term of imprisonment or what is described as a combination sentence; that is, a period of imprisonment in combination with a community corrections order. The Crown do not quibble with this second submission. Accordingly, and in order to be better informed, I have had you assessed as to your suitability for a corrections order.
56A Community Corrections Order Assessment Outcome Report dated 4 May 2021 assesses you as presenting with a low risk of reoffending. The author of the report states that you expressed remorse, that you intend to resume your studies upon your release from custody and that you enjoy the continuing support of your family. He also notes your engagement with housing services whilst in custody to secure accommodation upon your release. You are assessed as suitable for a community corrections order.
57As part of that pre-sentence assessment a Mental Health Advice and Response Service screen was also conducted. The author of that report found that you did not present with symptoms of acute mental illness, but noted that past periods of fluctuating mood and paranoia are concerning, concluding that it is possible that you have in fact experienced acute mood disturbance and possible psychotic symptoms at times. She recommends ongoing mental health treatment and that assessment be made as a requirement of any community corrections order. Again, it is of concern and should be followed up upon your release.
58In terms of the sentencing process, I do make the ancillary orders as sought for compensation to your victims and forfeiture of the knife used by you.
59The basic purposes for which a court may impose a sentence include just punishment; general deterrence (that is, sending a message into the wider community); specific deterrence (that is, sending a message to you); rehabilitation; denunciation and protection of the community. In your case, I am satisfied that less weight attaches to specific deterrence and indeed to protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims. I am also required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as indeed possible, that offenders are rehabilitated and are reintegrated into society.
60I have taken into account the relevant sentencing purposes referred to in s.5 of the Sentencing Act. I have taken into account current sentencing practices for the offences to which you have pleaded guilty.
61In terms of Charges 1-3, I propose to impose an aggregate sentence, as I am satisfied those offences are founded on the same facts, or form, or are part of a series of offences of same or similar character. In so doing, I also bear in mind the principles of totality and proportionality, which have application to all charges on the indictment.
62In relation to Charges 1, 2 and 3, you are convicted and placed on an adjourned undertaking for a period of 18 months. This, in effect, requires you to sign a promise to this court to be of good behaviour for a period of 18 months and that you attend before the court if called upon to do so. This is unlikely to occur if you do remain of good behaviour.
63In relation to Charge 4, attempting to obtain property by deception, you are convicted and fined the amount of $1,000.
64For the remaining charge, undoubtedly the most serious on the indictment, Charge 5, being one of armed robbery, you are convicted and sentenced to 10 months imprisonment.
65Pre-sentence detention of 337 days is reckoned as having already been served.
66In addition, you are placed on a community corrections order for a period of 18 months, during which you are to be supervised by the Office of Corrections and to participate in mental health treatment as directed. These are the only conditions that I require, based on the recommendations of the Office of Corrections and the significant sanction that I see you have served by your remand period.
67In addition to the conditions that I have imposed, there are what we call standard conditions. The first and foremost of those is that you must not commit any other offences during an 18-month period which could be punished by imprisonment. You need to report within two working days to your nearest Corrections office. You are required to advise your supervising Corrections office of any change of address of where you are living or working, and you need to do so within two clear working days. It is a term of all community corrections orders that you must submit to visits as directed and obey the instructions and directions of the corrections officer. You cannot leave the State of Victoria without their prior permission.
68Essentially, you will breach the corrections order if you re-offend and you will breach the corrections order if you do not do as you are asked.
69Now, I can only place you on a corrections order if you agree to do so. In a moment, I will ask you to speak to Ms Willard as to your obligations on the adjourned undertaking and your obligations on signing any corrections order.
70Before I do that, I indicate that pursuant to s.6AAA of Sentencing Act, if not for your plea of guilty I would have sentenced you to a total effective sentence of 18 months imprisonment.
71Now before I disappear, which will be momentary anyway, Mr Plummer, are there any matters I missed or any other matters you wish to bring to my attention?
72MR PLUMMER: No, Your Honour.
73HER HONOUR: Ms Willard, with the assistance of the interpreter I will get you to speak to your client about the adjourned undertaking and also about the corrections order. Hopefully that will be available to you shortly so that you can do that.
74MS WILLARD: Thank you, Your Honour.
75HER HONOUR: I will stand down temporarily. No pressure on you particularly but I have a meeting at four.
76MS WILLARD: Yes.
77HER HONOUR: If I am late for that it will not be the end of the world.
78MS WILLARD: Ten minutes is sufficient, thank you.
79HER HONOUR: I will stand down temporarily, thank you.
(Short adjournment.)
80HER HONOUR: Thank you, Ms Willard.
81MS WILLARD: Thank you, Your Honour. He understands his obligation and will consent to the order.
82HER HONOUR: All right. So, Mr Nan, I am being told you are prepared to sign a corrections order. That will be in place for 18 months. And we will have you supervised by the Office of Corrections, and being required to undertake mental health treatment as directed. You are prepared to sign a document to that effect?
83OFFENDER: (Through interpreter) Yes, I do, yes.
84HER HONOUR: And you understand in doing that, that if you breach that order you can be required to come back in front of me for breaching that order?
85OFFENDER: (Direct) Yes.
86HER HONOUR: And can also be charged with a separate charge of breaching that order.
87OFFENDER: Yes.
88HER HONOUR: The other document you are going to be asked to sign is, as I indicated, a promise to be of good behaviour for 18 months.
89OFFENDER: Yes.
90HER HONOUR: And to come back before the Court if called upon to do so.
91OFFENDER: No problem.
92HER HONOUR: You are also prepared to sign that document?
93OFFENDER: Yes.
94HER HONOUR: Thank you very much. All right, then. Well, they are the orders that I will make. I wish you all the best, Mr Nan. Madam interpreter, can I thank you very much for what would have been a difficult task today.
95INTERPRETER: As the court pleases.
96HER HONOUR: Particularly as I free-formed some of the sentencing remarks, so thank you for your assistance.
97INTERPRETER: Thank you, Your Honour, for providing a copy of your remarks.
98HER HONOUR: Mr Plummer, I thank you also for your assistance and that of your instructor. And Ms Willard, as indicated thank you for yours. Particularly, the very useful written documents provided in advance.
99MS WILLARD: Thank you, Your Honour.
100HER HONOUR: Right. So, I will close the court until 9.30 tomorrow. Thank you very much.
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