Director of Public Prosecutions v Shaing

[2021] VCC 336

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01287

DIRECTOR OF PUBLIC PROSECUTIONS

v

HO SHAING

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JUDGE:	HIS HONOUR JUDGE HANNEBERY
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2021
DATE OF SENTENCE:	26 March 2021
CASE MAY BE CITED AS:	DPP v Shaing
MEDIUM NEUTRAL CITATION:	[2021] VCC 336

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:      perjury - incident involving an argument between yourself and your then girlfriend - subsequently went and made a statement of complaint to police - omitted key portions of the story - your early plea of guilty is evidence of remorse - abnormal example of the offence

Sentence:                 convict you and fine you an amount of $3,000

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Dawson	The Office of Public Prosecutions
For the Accused	Mr T. Antos	Menoz Bowler

HIS HONOUR:

1Mr Shaing, you have pleaded guilty to a single charge of perjury and the maximum penalty for that is Level 4 imprisonment or 15 years.

2You have pleaded guilty and the circumstances of that offence were set out in the prosecution opening which was Prosecution Exhibit 1.  I do not intend to repeat those circumstances in any detail but in a very abbreviated form this whole matter started in that there was an incident involving an argument between yourself and your then girlfriend.  She has struck you and you have then pushed her over.  That was the commencement of a situation where you were then assaulted by three other individuals and the perjury comes about because you then subsequently went and made a statement of complaint to police about those three individuals and that statement you made was subject to the penalties of perjury.

3In that statement you omitted key portions of the story.  The specifics are set out in the indictment but, broadly speaking, you presented it as being an attack by three random people rather than telling the truth, which was it was a situation with people that you knew that emerged from a circumstance where, for one reason or other, you have pushed over your then girlfriend.

4This all occurred on 12 March 2019.  As was pointed out during the plea, there was then a substantial gap until you were interviewed about this matter, in January of 2020, and you were finally then charged in June of 2020.

5Now, in relation to the gravity of this offence I will make it clear that this is a highly unusual example of the crime of perjury and certainly an especially unusual one to be before this court in those circumstances.

6It is an offence that is distinguished by the fact there would seem to be very little in the way of pre-meditation for you to have committed this offence.  The statement was signed, it would seem, relatively shortly after the incident.  It is to be distinguished from a circumstance where there has been an affidavit done or evidence given in court, where you had had time to think about and calculate the lie you were about to tell.  This seems very much to be a situation where you have told that lie in circumstances where you were still, possibly understandably, very unhappy about the treatment you received from those three people.

7The other very unusual feature of this matter is that you were actually assaulted.  You were actually offended against and it was really just that you have given a version that is different in circumstances in your statement to what was the actual truth but it is not a situation where, for example, you have accused somebody of doing an offence that they had not in fact done.  You were in fact assaulted against, just the essence of the lie here is not one where you falsely accused someone, it is rather that you have told a lie about the particular circumstances in which you were in fact assaulted.

8There does not appear to be any apparent adverse impact that has resulted to anyone from your perjury, perhaps beyond some inconvenience to the police and I accept that your early plea of guilty is evidence of remorse.

9In terms of mitigation you get credit for pleading guilty to this charge at the earliest reasonable opportunity, and certainly in circumstances where the listings of this court are under considerable pressure because of pandemic restrictions. A plea of guilty has a particularly high utilitarian value at the moment; namely the fact that it saved the time and resources that would otherwise have been expended on a contested hearing means it is very much to your credit on sentence.

10I have noted that you do have some prior matters including matters for dishonesty, including robbery and theft, but those dishonesty matters are effectively related to the acquisition of property and there is not anything really similar to this in your history.

11In terms of your personal circumstances, that is set out in some detail in the defence outline of argument.  You are full time employed.  I am instructed you are now a home owner and I note that you have achieved those things despite coming from a refugee background, where you have had your challenges, and you have got family in Australia and in the United States but it has been a situation where you have had to deal with some hardship in your life up until this point in time.

12I also note that this is a matter where there is some relevant delay; namely the 10 months of delay between the commission of the offence and the interview and a six month delay between the interview and your charge and then, perhaps less significantly, an eight month delay between the charge and the plea.  Obviously there was about a month of that delay that was because of you being unable to get your act together with representation, but even taking that into account there is some significance in the delay that has existed in these circumstances.

13Now perjury, it has been quite rightly conceded, is a charge that requires consideration of matters including denunciation and general deterrence. Statements of police, and indeed any type of statements that are done under the laws of perjury that are juratted have to be taken extremely seriously and, as such, the court takes it seriously when somebody intentionally lies in the course of a sworn statement or a juratted statement.

14Those considerations are relevant, however I am taking into account all the matters surrounding this offence and concluding that there are highly unusual circumstances surrounding this matter today and it is probably an unusual perjury charge that would come before this court, where there could be submissions made for a financial penalty to be imposed and it would be even more unusual, such as in these circumstances, where it is conceded by the prosecution that it is open in all the circumstances to impose a financial penalty, but I think that reflects the highly unusual nature of this matter and I do not think there would likely be matters that are going to be comparable to this coming before this court that somebody could say that this sort of penalty sets some sort of benchmark, because it is an abnormal example of the offence.

15So just stand up for a second, Mr Shaing.  Now, Mr Shaing, what I'm going to do; I'm going to convict you and fine you an amount of $3,000 and I will check with Mr Antos whether you require any time to pay that or what do you want to do?

16MR ANTOS:  Your Honour, I think it would certainly be best if Mr Shaing was able to pay that through instalments by contacting Fines Victoria or the appropriate regulatory body.

17HIS HONOUR:  What if I gave him a three month stay?

18MR ANTOS:  I was going to ‑ ‑ ‑ 

19HIS HONOUR:  Yes, I'll give him a three month stay and that'll be – Mr Shaing, there'll be three months for you to arrange how you're going to pay that fine, okay?

20MR ANTOS:  Yes.

21HIS HONOUR:  So I'll leave it at that.  So I'll convict him and fine him $3,000 on that charge and I'll grant a three month stay in relation to payment.

22MR ANTOS:  Yes.

23HIS HONOUR:  So that'd be until 26 June of 2021.

24MR ANTOS:  June this year, yes.

25HIS HONOUR:  Just before I go off the Bench, did we find out anything more about the ‑ ‑ ‑ 

26MS DAWSON:  Yes.

27HIS HONOUR:  Yes?

28MS DAWSON:  Yes, I've just taken it away from the screen, but ‑ ‑ ‑ 

29HIS HONOUR: That's all right. I knew that there'd be some magic in the Sentencing Act here that I'll learn about.

30MS DAWSON:  There is.

31HIS HONOUR:  Yes.

32MS DAWSON: It's in the first part of the Miscellaneous Provisions of the Sentencing Act, as ‑ ‑ ‑

33HIS HONOUR:  Yes.  Sorry, you can sit down, Mr Shaing.

34MS DAWSON:  As one would expect, s 109(2) ‑ ‑ ‑ 

35HIS HONOUR:  Yes.

36MS DAWSON:  ‑ ‑ ‑ goes on to describe that an offence in the Act, et cetera, which is punishable by a level specified in Column 1 of Table 2, which is contained within that sub-section, is punishable by a fine of a level specified in the column next to it and ‑ ‑ ‑ 

37HIS HONOUR:  Okay.  And perjury's in that column?

38MS DAWSON:  A Level 4 offence is in that column, yes.

39HIS HONOUR:  A Level 4 offence has a maximum penalty of 15 years' imprisonment and/or a fine, according to s109 of 1,800 penalty units.

40MS DAWSON:  Yes  s 109(2).

41HIS HONOUR:  Okay, thank you for that.  Thank you both for that.  Is there anything further I have to ‑ ‑ ‑ 

42MS DAWSON:  No, those are the matters.

43MR ANTOS:  No, nothing further, Your Honour.

44HIS HONOUR:  Thank you.  I'll adjourn until 10.30 on Monday.

45TIPSTAFF:  Nine o'clock.

46HIS HONOUR:  Nine o'clock on Monday, thank you.

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