Director of Public Prosecutions v Shen and Zhang
[2021] VCC 602
•12 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02499
CR-29-02500
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| XING TONG SHEN XI ZHANG |
JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 May 2021 | |
DATE OF SENTENCE: | 12 May 2021 | |
CASE MAY BE CITED AS: | DPP v Shen & Zhang | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 602 | |
REASONS FOR SENTENCE
Subject:CRIMINAL LAW – Sentencing.
Catchwords: Pleas of guilty – Negligently causing serious injury – Three year old victim in offenders’ care – Offenders reached an agreement, arrangement or understanding to treat or discipline the victim more roughly than appropriate – Zhang was complicit in Shen’s offending – Victim suffered serious closed head injury – Relatively serious example of the offence – Youth – No criminal history – Remorse (Shen) – Time in custody onerous – Positive prospects of rehabilitation – Parity.
Legislation Cited: Crimes Act 1958 s 24; Sentencing Act1991 ss 6AAA, 18.
Cases Cited:DPP v Weybury [2018] VSCA 120; DPP v Weston [2016] VSCA 243; DPP v Mok [2011] VSCA 247.
Sentence: Imprisonment for a period of 2 years and 3 months, with a non-parole period of 1 year and 9 months (Shen) – Imprisonment for a period of 2 years, with a non-parole period of 1 year and 6 months (Zhang).
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Thomas (plea) Ms L Custovic (sentence) | Office of Public Prosecutions |
| For Ms Shen | Mr H Rattray (plea) | Paul Vale Criminal Law |
| For Mr Zhang | Mr J Manning (plea) Ms M Pekevska (sentence) | Harry R. Song & Associates |
HIS HONOUR:
Introduction
1Xing Tong Shen and Xi Zhang, you have each pleaded guilty to one charge of negligently causing serious injury contrary to s 24 of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment (Charge 1).
2You both have no prior Criminal Record.
Circumstances of the offending
Background
3A prosecution opening was tendered on the plea and may be summarised as follows:
4At time of this offending you, Ms Shen, were 23 years of age and you, Mr Zhang, were 21 years of age. You are both Chinese citizens and were living on Student visas, residing at 1607/889 Collins Street, Docklands.
5The victim in this matter is Kendrick Lo, who was 3 years and 7 months old at the time of the offending. Kendrick is the son of Linda Fu and Paul Lo who were separated at the relevant time. Kendrick was living with Ms Fu in Mont Albert whilst Mr Lo was living in North Melbourne. Kendrick was enrolled five days a week at the Gowrie Early Learning Centre at 1 Seafarer Way, Docklands, however he did not attend every day. You, Ms Shen, cared for Kendrick from time to time and were authorised to sign him in and out of childcare.
6Voon Kok Chu is a contract cleaner who cleaned your apartment weekly for four or five weeks prior to the offending. Mr Chu observed Kendrick with the two of you on several occasions and was present at the apartment on the evening of the offending.
7Mr Chu observed Kendrick to be frightened of you, Ms Shen. He said that Kendrick rarely communicated with you and would appear frightened when you called to him.
8Di Zhang, a friend of you, Ms Shen, resided opposite your apartment on Collins Street, Docklands, and met Kendrick through you in March 2019. On 29 April 2019, Ms Fu became unwell and arranged for you, Ms Shen, to care for Kendrick until she recovered. She dropped Kendrick at childcare on the morning of 29 April and advised childcare staff that Kendrick would be collected by you that afternoon.
9Kendrick was collected by you that afternoon and did not return to Ms Fu’s home again until after the offending. Ms Fu intended that the two of you would look after Kendrick until she recovered from her illness. She visited Kendrick on the evening of 4 May 2019 because she was missing him. Di Zhang looked after Kendrick from 4 to 6 May 2019, at the request of you, Ms Shen. You had discovered that you were pregnant and asked Ms Zhang to take Kendrick. Also present at Ms Zhang’s were her flatmate, Xinyuan Cao, and friend, Chen Zhidong.
10It is not alleged that Kendrick hurt himself during the time he stayed with
Ms Zhang. Ms Zhang dropped Kendrick at childcare at 11am on 6 May 2019 and collected him that afternoon at about 5.30pm. Ms Zhang had a meeting that evening and arranged for Kendrick to be returned to you, Ms Shen. Childcare workers observed no injuries on Kendrick on 6 May 2019 and stated that he seemed happy at childcare that day.11When Ms Zhang attended to collect Kendrick from childcare, Ms Fu was contacted by staff and gave permission for Ms Zhang to sign Kendrick out.
12Ms Zhang and Ms Cao met you, Ms Shen, in the lobby of 888 Collins Street, Docklands at about 6.30pm and Kendrick was returned to your care. Ms Zhang stated that Kendrick was happy when they left her apartment, but that he appeared a little afraid and seemed moody when he saw you. Kendrick then stayed in the care of you both until the late evening of 8 May 2019.
13Kendrick did not attend childcare on 7 or 8 May 2019 which you both stated to police was because he had vomited.
14The mobile phone belonging to you, Mr Zhang, was later seized by police and contained the following videos:
(a) At 2.59am on 7 May 2019, a video shows Kendrick asleep in bed and he is sprayed in the face multiple times with a liquid, causing him to twitch. Laughing is heard in the background; and
(b) At 12.29am on 8 May 2019, a video shows Kendrick walking outside
889 Collins Street, Docklands. Kendrick is wearing a jacket and a nappy. His face is visible as he looks at the camera phone and no marks, bruising or injuries are visible on his face.
Events of 8 May 2019
15Between 7.30pm and 10.41pm on 8 May 2019, Kendrick sustained multiple injuries while he was in the care of you both, the most serious injury being a closed head injury.
16Mr Chu arrived at your apartment with another cleaner, Qing Qing, on the evening of 8 May and commenced cleaning. Mr Chu stated that when he arrived at around 7.30pm, you, Ms Shen were present, and you, Mr Zhang arrived about half an hour later. CCTV footage obtained by police shows that you, Mr Zhang, entered the building at 889 Collins Street at 7.31pm and did not exit the building after that time. Mr Chu told police that he and Ms Qing arrived at about 7.30pm.
17When Mr Chu arrived he saw that Kendrick had some cuts to his lips and an injury to his foot. Mr Chu heard you, Ms Shen, say to Kendrick, ‘I will bash you’, shortly after he arrived and again after Mr Zhang arrived home.
18When Mr Chu was standing in the kitchen, he saw you, Ms Shen, and Kendrick behind the couch and saw you pinch Kendrick’s lips. From the conversation that he heard, Mr Chu believed that this was a punishment because Kendrick had been lying. This was prior to you, Mr Zhang, returning.
19Mr Chu stated that following this Kendrick was called into the bedroom by you both. Kendrick went into the bedroom and Mr Chu heard a very loud bang on the wall that separated him from the bedroom which sounded like a person crashing into a wall. Mr Chu heard you talking after this but could not hear Kendrick.
20About five minutes later you both came out of the room and Mr Chu went into the room to check on Kendrick. Kendrick was standing in the corner of the room with his face in the corner as a punishment. Kendrick remained in that position until Mr Chu left. Kendrick appeared to have some injuries to his hands. Mr Chu asked Kendrick his name, but he did not answer. He states that Kendrick appeared to be in fear and was not running around like a child of that age would be expected to. Mr Chu and Ms Qing left the apartment at about 9pm.
21At about 10.30pm, Jia Shun Ma, your neighbour who lived on another floor of the building, received a call from you Ms Shen, asking her to drive the two of you and Kendrick to hospital. Mr Ma agreed to assist and asked another friend, Jun Wei Shi, to assist with interpreting. On the phone call you, Ms Shen, stated that Kendrick ‘had a small accident’ where his head ‘had a clash with the wall behind the sofa after falling off from my boyfriend’s shoulder.’
22At 10.42pm, you both entered the same lift with Mr Ma. Mr Ma states that Kendrick was showing no response to any voices, that his fist was tightly closed and that he appeared to be convulsing.
23In the CCTV footage Kendrick appears stiff and unconscious with his hands clenched, in a ‘starfish’ position. You, Mr Zhang, are depicted holding Kendrick against your chest in a blanket and you, Ms Shen, are depicted talking on your mobile phone.
24You and Mr Shi travelled with Mr Ma in his car to the Royal Children’s Hospital in North Melbourne. Mr Shi observed that Kendrick was shaking, convulsing and non-responsive. You, Ms Shen, said to Mr Shi that Mr Zhang and Kendrick had been playing, and that Kendrick had fallen off because he ‘didn’t hold tightly.’ You told Mr Ma that you and Mr Zhang were watching television, that Kendrick was playing with Mr Zhang and that ‘for some reason an accident happened.’ You said that Kendrick was on Mr Zhang’s shoulders ‘but he didn’t have proper control of him. He lost balance and fell hitting his head against the wall.’ You said that Kendrick then ‘lost consciousness’.
Hospital Admission
25When you all arrived at the hospital, Mr Shi assisted with the admission process. Emergency staff advised that brain surgery would be required, and permission would be needed from Kendrick’s mother.
26You, Ms Shen, called Ms Fu at about 11pm and asked Kendrick’s date of birth. You stated to Ms Fu that ‘Kendrick hit his head but don’t worry I’m with him at the hospital.’ Ms Fu arrived at the hospital at about 11.20pm.
27At 1.09am on 9 May 2019, you, Ms Shen, told Dr Ben Watson that Kendrick had been riding on a friend’s shoulder and fell backwards, hitting his head on the wall and then falling onto the wooden floor. He had been unresponsive since the fall. Social Worker, Rob Muskie, also spoke to the two of you and Mr Shi shortly after Kendrick’s arrival at the hospital. Mr Muskie was told that Kendrick was ‘quiet and sleeping’ immediately after the fall.
28In relation to bruises observed on Kendrick’s body, you, Ms Shen, said that Kendrick had been bullied at childcare and that there were lots of falls with bruises. You both left the hospital after Ms Fu arrived and returned to the apartment.
29Kendrick underwent surgery and many investigations at the Royal Children’s Hospital and was found to have multiple injuries.
Investigation and interview
30Police were notified and commenced an investigation, attending your apartment at 7.30am on 9 May 2019. You, Ms Shen, told Detective Sergeant Dean Raab that ‘He hit his head on the wall after he fell off his shoulders’, pointing at you,
Mr Zhang.31You were both arrested and cautioned with the assistance of ‘Google Translate’. You were both interviewed by police at the Melbourne West Police Station on
9 May 2019 with the assistance of Mandarin interpreters.
Ms Shen police interview
32In your interview you, Ms Shen, stated the following:
(a) The injury happened at your apartment, after the cleaner had left. The cleaners left about 10pm on Wednesday night;
(b) You were sitting on the floor in front of the couch with Mr Zhang next to you. Kendrick climbed onto Mr Zhang’s shoulders as Mr Zhang went to stand up. Kendrick was wearing loose clothing. Mr Zhang did not grip Kendrick firmly and Kendrick fell over;
(c) You were pregnant so you slumped on the couch and did not catch Kendrick properly;
(d) Kendrick hit his head on the wall;
(e) You did not see him hit the wall but saw him on the floor. He cried then stopped in seconds. He looked unconscious and his eyes were half closed;
(f) You later said that Kendrick and Mr Zhang played like this every day. Kendrick went from the back, and the back of the sofa is made from wood, and maybe his leg got trapped;
(g) There was no bleeding when Kendrick fell;
(h) You had bathed him on the Monday and did not see any injuries;
(i) Kendrick had often had bruises and grazes from childcare. You had discussed this with Ms Fu;
(j) After Kendrick fell, you dressed him in a jacket and black jeans to go to the hospital;
(k) You did not notice if he had any other injuries on him after the fall;
(l) You took Kendrick to the hospital. You rang Ms Fu who attended the hospital shortly afterwards;
(m) You and Mr Zhang talked to hospital staff and the social worker with the help of Mr Shi;
(n) You told the receptionist that Kendrick had fallen over, from the shoulder; and
(o) After you had left the hospital you and Mr Zhang went to bed and did not move the furniture in the apartment.
Mr Zhang police interview
33In your interview you, Mr Zhang, stated the following:
(a) You were watching your iPad on the couch and Kendrick wanted to ride on your neck;
(b) His legs were too short and he did not hold steady, and then he just fell over;
(c) You were trying to hold Kendrick’s leg but you did not get it;
(d) Kendrick tried to hold your sweater, but it was too close, and Kendrick fell over. Kendrick cried and you felt there must be something wrong with him;
(e) You later said that Kendrick fell from your shoulder. There was a gap between the lounge and the wall. You were leaning against the couch and Kendrick fell over your shoulder into the gap before you were fully up. Kendrick hit the wall first and then the floor. There was a crack in the wall from where his head hit the wall;
(f) Kendrick wanted to play with you and you told him to go to sleep;
(g) Your hands were not quick enough to catch Kendrick’s legs before he fell over;
(h) You missed Kendrick’s legs as he stood up. Kendrick knocked the wall and caused a hole in the wall. His head got caught in the gap between the couch and the wall;
(i) You tried to sit up or stand. You missed Kendrick’s leg and Kendrick fell back. You drew a diagram of the apartment for police;
(j) You walked around the couch and saw Kendrick on the floor. His leg was against the couch and he was crying;
(k) Kendrick only cried when he fell over. There was no blood or visible injuries;
(l) Before you took him to the hospital you put Kendrick on the bed. His eyes were half closed and his fingers were clenching;
(m) You took Kendrick to the hospital. You were holding Kendrick and there was saliva coming from his mouth. He was unconscious but his hands and legs were moving;
(n) Before the fall from the couch, Kendrick had an injury to the elbow and a bruise above the hips from childcare. Kendrick had been with you and
Ms Shen since the Monday and you did not know of any injuries to Kendrick when he returned to you. You changed Kendrick’s nappy on Tuesday and noticed an injury to his foot from rubbing on his shoe, but no other injuries. You also noticed dry skin but did not take much notice; and(o) Kendrick had not been to childcare because he had vomited.
34Further investigations were undertaken including the obtaining of expert reports as to the mechanism of Kendrick’s fall as described by both of you. That evidence is outlined in the prosecution plea opening and I will not repeat those details in these sentencing remarks.
Closed head injury to Kendrick Lo
35On admission to hospital, Kendrick was found to be unresponsive and seizing, requiring resuscitation and intubation. A CT scan showed a right-sided subdural haematoma and a small left posterior scalp injury. He was taken to theatre for an emergency craniotomy and drainage, then transferred to the Intensive Care Unit.
36Associate Professor John Gall, Forensic Physician and Paediatrician at the Royal Children’s Hospital, examined Kendrick on 9 May 2019. He reviewed the medical file including later test results and considered information provided by police, including explanations given to police by you in your police interviews. He prepared a report in relation to Kendrick, completed on 20 June 2019, when Kendrick was still in hospital.
37Associate Professor Gall observed that Kendrick sustained a significant closed head injury that was potentially life threatening. The brain injury resulted in very significant body deficits with a likely poor prognosis.
38Associate Professor Gall opined that:
(a) The closed head injury occurred as a result of trauma. In conjunction with the posterior scalp haematoma, it was indicative of a contact injury to the head;
(b) The timing of the head injury that caused the subdural haematoma is imprecise, but it was acute in nature and occurred within a few hours of presentation to the hospital;
(c) The scenario described by you both seemed improbable, if not implausible; and
(d) In the absence of an adequate explanation and in the presence of other significant and unexplained injuries, the injury is most probably the result of abuse and not that of an accident.
39In addition to the closed head injury and scalp haematoma, Associate Professor Gall observed the following injuries to Kendrick on 9 May 2019:
(a) Bruising to the forehead, including six almost vertical linear areas of bruising;
(b) Areas of red discolouration within the right earlobe and apparent bruising to the left ear;
(c) Linear marks and bruising to the chest and abdomen;
(d) Bruising to the back and buttocks;
(e) Bruising to both lower limbs;
(f) Bruising to both upper limbs; and
(g) An apparent bite mark to the right forearm.
40Results of a liver function test conducted on 9 May 2019, together with bruising to the right side of Kendrick’s abdomen, was consistent with possible liver injury.
41On 23 May 2019, Kendrick underwent a radiographic skeletal survey, which showed healing buckle fractures of the distal left radius (wrist) and distal left ulna (forearm).
42Associate Professor Gall further opined that:
(a) The injuries to the ears, chest and abdomen, right knee, lower right leg and right foot, together with the healing fractures, could have occurred at the same time as the head injury;
(b) Assuming that information from the childcare centre was correct, and in the absence of any satisfactory explanation for the causation of the bruises on Kendrick, the majority of the bruising (to the forehead, ears, chest, abdomen, back and buttocks), and the apparent bite mark, are most probably the result of non-accidental injury;
(c) Although the injuries to the lower limbs and left elbow are located at sites that may be associated with accidental injury, they may also have been non-accidental injury;
(d) The bruises collectively are ‘highly concerning’ for a non-accidental cause; and
(e) The presence of buckle fractures in young children and an absence of an explanation for the fractures is a ‘reason of significant concern’ that they were caused by a non-accidental injury.
43Kendrick was discharged from hospital on 31 July 2019 and continues to receive outpatient treatment. A report of Dr Kevin Dunne, consultant paediatrician at the Royal Children’s Hospital, prepared a report dated 24 March 2021. Dr Dunne writes that Kendrick suffers from a left hemiplegia, requires an ankle foot orthosis to improve his gait and has reduced fine motor skills. He has been assessed as having a severe language disorder and remains at risk of cognitive impairments from his head injury. He is currently attending school part-time and continues to receive physiotherapy and speech pathology.
44Dr Dunne stated that:
Children with traumatic brain injury often will have ongoing cognitive difficulties, i.e. short-term memory, concentration and attention and impaired executive function which reduce their academic potential. Kendrick has just commenced school and there are cognitive impairments noted, i.e. reduced concentration and distractibility but he has not yet had a formal cognitive assessment.
Kendrick will have permanent cognitive, physical social disabilities which will impair his quality of life and potential. Kendrick will require ongoing physiotherapy, occupational therapy, speech pathology services and educational support to maximise his abilities.
45The prosecution case is that the closed head injury was caused by your actions whilst Kendrick was in your care on 8 May 2019 and that the injury is a serious injury. In particular, expert evidence confirms that significant force must have been applied to cause the injuries and the force was sufficient to cause the ‘bleed’ on Kendrick’s brain. It is these facts that relate to Charge 1, negligently cause serious injury. I note that the prosecution does not contend that the other identified injuries form part of this charge but are rather background facts.
46The prosecution accepts the plea to the charge of negligently cause serious injury on the following basis:
(a) Both of you owed Kendrick a duty of care, as he was a young child staying with both of you, in your care.
(b) There was an agreement, arrangement or understanding reached between both of you that you would treat or discipline Kendrick more roughly than was appropriate in the circumstances.
(c) When the incident that led to Kendrick’s serious injury occurred, you,
Ms Shen, used excessive force on Kendrick. This was a criminally negligent act that caused serious injury to Kendrick.(d) You, Mr Zhang, were complicit in the offending by reason of the prior agreement, arrangement or understanding but you did not physically harm Kendrick yourself.
(e) The prosecution cannot say beyond reasonable doubt what precise mechanism caused the serious injury.
(f) There was significant force applied to cause the injuries to Kendrick.
(g) There is no evidence as to how the hole in the wall was caused. The prosecution does not rely upon the hole in the wall as an aggravating feature of the offending, or incriminating conduct, and does not allege that either of you deliberately made the hole in the wall.
(h) The prosecution concedes that the weight of the opinions provided by
Dr Pandy is limited by the assumptions made in his reports.
Nature and gravity of the offending
47Mr Rattray, who appeared on behalf of you, Ms Shen, accepted that the offending is serious and submitted that it could be classified as a ‘serious mid-range example’ of the offence and that even taking into account the nature of the injury, Mr Rattray submitted it could not be elevated beyond the ‘upper end of the mid-range’.
48Mr Manning, who appeared on behalf of you, Mr Zhang, also conceded that the offending is serious, however his focus was on the different way in which the prosecution put its case in relation to your involvement. While it is accepted that you owed a duty of care, your culpability arises from an agreement, arrangement or understanding with Ms Shen and that you did not actually physically injure Kendrick.
49Ms Thomas, who appeared on behalf of the Director of Public Prosecutions, referred the Court to two decisions of the Court of Appeal, DPP v Weston[1] and Mok v The Queen[2]. Weston involved injury caused to a four week old baby by shaking, throwing her at another person and holding her by the leg. The offender had been warned not to shake the baby after an earlier incident. The baby sustained multiple injuries at the hands of the offender and was at risk of seizures in the future. The offender had a history of violence and drug use. He was resentenced to 3 years and 6 months on the charge of negligently causing serious injury following a Crown Appeal. In Mok, the appellant was found guilty after a trial of negligently causing serious injury to his infant son, aged 23 months. The injury was caused by putting the child in a hot bath causing full thickness burns to his feet and lower part of his legs, and partial thickness burns to his lower back, thighs, buttocks and genitalia. The Court of Appeal resentenced the appellant to 2 years with all but 9 months suspended.
Ms Thomas submitted that the assessment of the offending in this instance falls somewhere between Weston and Mok.[1] [2016] VSCA 243.
[2] [2011] VSCA 247.
50What is certain is that neither Weston nor Mok are similar to the circumstances of this case. Each case must turn on its own facts and while using terms such as ‘mid-range’ or ‘upper mid-range’ is intended to assist the court, they have limitations. As the Court of Appeal noted in DPP v Weybury[3], classifications in terms such as 'mid-range', carry a risk that they will attract reference to current sentencing practices for offences previously categorised in a particular range, thus bringing the risk of limiting the instinctive synthesis. What is not disputed, is that the conduct in this instance is serious, and in my view a relatively serious example of negligently causing serious injury. It involved negligence that resulted in a serious injury to a defenceless child which, according to the unchallenged expert opinion of Dr Dunne, will leave him with ‘permanent cognitive, physical social disabilities which will impair his quality of life and potential’.
[3] [2018] VSCA 120 at [54] (Priest JA).
Personal circumstances
Xing Shen
51Turning first to you, Ms Shen.
52You were born in Xi’an, the provincial capital of Shaanxi in China. Your parents work in electronics and you are their only child. You and your family moved to Beijing when you were three where you completed primary, middle and secondary schooling. Whilst strict, your parents were loving and caring, and you had a positive childhood socially and academically. After finishing the equivalent of Year 12, you studied interior design at the Communication University of China in Beijing.
53In 2017 you commenced a relationship with a man and in February 2018 you moved to Australia with him to pursue further study. You studied a Master of Commerce at Deakin University. You initially struggled adjusting, as did your relationship, and in 2018 you returned to China with your then boyfriend and the relationship came to an end.
54You returned to Australia and later in 2018, you met Mr Zhang and commenced a relationship with him in February 2019. You had a positive relationship. Around the time of this offending you unexpectedly fell pregnant.
55On 13 January 2020 while in custody, you gave birth to Xi Zhang, the daughter that you share with Mr Zhang. Xi was immediately taken into protective custody by DHHS and placed into foster care and you have never had the opportunity to hold, nurse or care for your daughter. Understandably, being separated from your daughter and unable to develop a bond with her has weighed heavily on you. Ultimately Xi was placed into the care of your parents who were in Victoria at the time, and they returned to China together. Xi is now in the care of
Mr Zhang’s parents and you communicate with her via video calls.56Despite the difficulties you have experienced in custody, you have taken advantage of programs offered to you, completing a number of courses including Box Hill Institute certificates, the Positive Lifestyle Program, a Coping Better Group Program and Respectful Relationships.
57A report was prepared by Patrick Newton, clinical psychologist and tendered on the plea. Mr Newton provided a detailed personal history. He notes that you do not consume alcohol or drugs, nor have you experimented with either. Following assessment, Mr Newton came to the conclusion that you have a history of major depressive disorder, initially following the relationship breakdown in 2018. While those symptoms resolved, as a result of this offending and your time in custody, you have suffered further symptoms leading Mr Newton to the conclusion that you are suffering a ‘recurrent major depressive disorder’ which presents with a moderate level of severity. Mr Newton is of the view that your condition will improve once you have access to family support upon your return to China, are able to return to the workforce and are able to engage with your daughter.
58You wrote a letter of apology to the court where you express your regret and shame for your conduct. You acknowledge that it was your negligence that caused Kendrick’s injury and you also acknowledge the impact it has had on him and his family.
Xi Zhang
59Turning now to you, Mr Zhang.
60You were born in Jinan, the provincial capital of Shandong in China and are
23 years of age. Your father is a mining engineer and your mother, now retired, worked in office administration roles. You have an older brother and sister who are 35 and 33 years of age respectively and both are employed. You enjoy a close and supportive relationship with your family, including with your maternal grandmother, who is 89 years of age.61You completed schooling in China and had a middle class upbringing. You completed a three year advanced diploma at the Shandong College of Information Technology, majoring in business management. You also participated in extracurricular activities such as volunteering at aged care facilities and entering a practical business competition which you won. Whilst studying you also started your own online clothing business with a friend which expanded to a retail store with two employees. You earned a modest income from this business.
62You moved to Australia for the purpose of further study. You undertook an English language course and an undergraduate course in International Trade and Business Management, both at Deakin University. You then transferred to Southern Cross University where you undertook further study.
63At the beginning of 2019 you met Ms Shen through your small friendship group in Australia and soon began living with her in her apartment.
64Whilst you were in custody, Ms Shen gave birth to your daughter, Xi. As discussed, your daughter currently lives with your parents in China. You have never met your daughter and like Ms Shen, you have been unable to be involved in the crucial first year of her life. You speak to her daily, singing and reading to her.
65You have been productive since being remanded, completing a number of courses. As a result of your positive engagement while in custody, you have been placed in a self-catering cottage at Hopkins Correctional Centre.
66Three references were tendered from your father, mother and brother. Each speak of your good character, commitment to work and family, and the regret that you feel as a result of your conduct. Your brother provides examples of when you have demonstrated compassion towards others in the community where you grew up.
67You will inevitably be deported from Australia upon your release from custody and you look forward to returning to China, reuniting with your family and building a relationship with your daughter.
Sentencing considerations
68
First, I take in to account your pleas of guilty. A three day contested committal was heard in the Magistrates’ Court on 9 December 2019. I accept that discussions were conducted with an intention to resolve this matter from the time of the committal. You made a joint offer to plead guilty to this charge on
31 August 2020 and formally pleaded guilty in this court on 19 March 2021 after a case conference before me. As such, I accept your pleas of guilty in relation to each of you, are pleas at the earliest reasonable opportunity given the complex issues that were required to be negotiated in this matter. Your pleas of guilty have saved court time and expense and avoided a jury trial which would have been complex and lengthy, involving a number of expert witnesses. Thus, in the circumstances your pleas have utilitarian benefit and have facilitated the course of justice.
69As to genuine remorse, in your case, Ms Shen, I accept that the letter you wrote to the court represents a genuine reflection of your remorse for your conduct. I also acknowledge that Mr Newton notes that you conveyed a deep sense of remorse and shame for your conduct.
70Youth is also of relevance in relation to both of you. In your case, Mr Zhang, you were 21 at the time of the offending and you are now 23. In your case, Ms Shen, you were 23 at the time of the offending and are now 25. Reliance was placed on the well known principles in relation to young offenders that rehabilitation should remain the primary sentencing consideration in each case. You both come before the court with no prior criminal history and while the weight given to youth diminishes when facing the seriousness of offending of this nature, in all the circumstances in my view, it still must take prominence in the sentencing equation in this instance.
71
Your counsel submitted that in relation to both of you, your time on remand has been particularly onerous. You have both been on remand since 9 May 2019, your first time in custody. A considerable portion of that time has been served in the COVID-19 climate where educational and treatment programs, as well as in person visits have been restricted. Further, you have limited English skills and the lack of other Mandarin speakers in custody creates an added layer of isolation. Significantly, you have both become parents for the first time whilst incarcerated and have been separated from your daughter since her birth. You have not been able to develop a physical bond with your daughter or have the start at parenthood that you would have hoped for. As to you specifically,
Ms Shen, you have also suffered a depressive illness in custody which
Mr Newton noted would render your time in custody more burdensome than that of other prisoners not so afflicted.
72You both come before the court with no prior convictions and have served your time on remand productively and without incident in circumstances where the nature of your offending puts you at risk of retribution from others in the prison system. You have supportive families in China and you both have a daughter whom you wish to reconnect with upon your return. You have not been able to see each other while in custody, however you have been writing to each other. While the future of your relationship is not certain, you are both committed to raising your daughter. In all the circumstances I assess your prospects of rehabilitation very positively.
73In relation to your status in Australia, you have both been advised that your Student visas have been cancelled in light of this offending and you will both be deported to China after your release from custody. As you both desire to return to China as soon as possible, you have not relied on deportation as a mitigating factor.
74Mr Manning submitted on your behalf, Mr Zhang, that while you do not seek to diminish your responsibility, given the way the case is put, parity is a relevant consideration. More specifically, Mr Manning pointed to the fact that you,
Ms Shen, were the primary caregiver and that it is not alleged that you, Mr Zhang physically harmed Kendrick. Ms Thomas submitted that there should be a degree of differentiation between your respective sentences.75Your counsel both submitted that in all the circumstances, including the fact that it is inevitable that you will be deported, the time you have served is sufficient and the sentence imposed should allow for your immediate release. Ms Thomas correctly pointed out that any executive intervention in terms of deportation or parole are not matters I am able to take into account. Ms Thomas further submitted that the imprisonment you have already served is not sufficient and that a head sentence together with a non-parole period should be imposed. I accept that submission.
Sentence
76Ms Shen and Mr Zhang, would you both please stand? You have not been provided with this on the document I have given you so I will just go a bit slower.
77Xing Tong Shen, on Charge 1, causing serious injury negligently, you are convicted and sentenced to 2 years and 3 months imprisonment. I direct that you serve 1 year and 9 months before becoming eligible for parole
78Zi Zhang, on Charge 1, causing serious injury negligently, you are convicted and sentenced to 2 years imprisonment. I direct that you serve 1 year and 6 months before becoming eligible for parole.
79Pursuant to s 18 of the Sentencing Act1991, I declare that 734 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
80Pursuant to s 6AAA of the Sentencing Act1991, if not for your pleas of guilty I would have sentenced you, Xing Shen, to 2 years and 9 months, with a non-parole period of 2 years and you, Xi Zhang, to 2 years and 6 months, with a non-parole period of 1 year and 9 months.
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