Director of Public Prosecutions v Sun

[2020] VCC 1400

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00187

DIRECTOR OF PUBLIC PROSECUTIONS

v

YU SUN

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JUDGE:	HIS HONOUR JUDGE BROOKES
WHERE HELD:	Melbourne
DATE OF HEARING:	22 July 2020
DATE OF SENTENCE:	4 September 2020
CASE MAY BE CITED AS:	DPP v Sun
MEDIUM NEUTRAL CITATION:	[2020] VCC 1400

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Stalking; Aggravated Burglary & Criminal Damage

Legislation Cited: Sentencing Act 1991 (Vic)

Cases Cited:DPP v Meyers [2014] VSCA 314; DPP v Rogers [2017] VCC 43; DPP v Stewart [2019] VCC 2086; DPP v Dalgliesh [2017] HCA 41; and DPP v Bourke [2020] VSC 130

Sentence:Convicted and Sentenced to a total effective sentence of three years’ and 7 months’ imprisonment with a non-parole period of 30 months’.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Harrison (For Plea)	OPP
Ms M. Kiapekos
(For Sentence)
For the Accused	Ms E. Clark	James Dowsley & Associates

HIS HONOUR: 

1Yu Sun, on 22 July 2020 you pleaded guilty in this court to one charge of stalking, which carries a maximum penalty of 10 years' imprisonment, one charge of aggravated burglary, which carries a maximum penalty of 25 years' imprisonment, and one charge of criminal damage, which carries a maximum penalty of 10 years' imprisonment.

Circumstances of offending.

2The victim in this matter is a Ms Qin Ha Zang.  A point of contention between the alleged circumstances of this offending and the submissions of your counsel centres on how you were acquainted with the victim.  It was submitted by your counsel that you had been in a relationship with the victim while the prosecution submitted as part of its opening that you met in March 2019 when you both worked in a barbecue restaurant in Melbourne's CBD before you helped her find employment after being laid off.  You left Melbourne shortly after that time and resided in Sydney until returning to Melbourne in August 2019.  This will be further expanded on below.

3Suffice to say in approximately September 2019 you started calling and sending SMS messages to Zang.  This occurred generally after 11 pm when she had finished working.  Owing to these calls and messages, Zang believed that you wanted to be in a relationship and that you believed that because you had found Zang a job she owed you.

4Zang stopped answering your calls; however, at times she would answer out of fear.  During these calls Zang invariably would not speak, but you would swear and be abusive towards her.  You began to call Zang multiple times every night, causing her to frequently put her phone on silent.

5On one occasion in September 2019, not long after the commencement of the calls from you, Zang caught her usual tram home from work.  Around halfway home you also boarded the same tram, approximately halfway towards Zang's home address.  Zang asked you why you were on the tram and you replied you would catch whatever tram you wanted, before getting off a short time later. 

6Regularly thereafter, when Zang alighted from her tram at her stop, she would see you waiting and watching her from nearby.  This caused Zang to begin to alight from the tram one stop earlier; however, she soon found that you would be waiting there for her as well.  On these occasions Zang would run from you.

7During October 2019 every day that Zang alighted from her tram she would see you waiting for her, so much so that she sometimes waited for work colleagues to finish work so that they could go home together. 

8At approximately 11.38 pm on 20 October 2019 you began to call and text Zang.  Between then and 4.30 pm on 21 October 2019 you called Zang 18 times and sent her six text messages. 

9Following work on 21 October 2019, Zang took a tram home and alighted one stop before her normal stop.  As she got off the tram she turned around and saw you.  Zang ran from you; however, you chased her.  Zang managed to climb over a large wall or fence to escape from you.

10On 26 October 2019 you called Zang a further four times between 10.56 pm and 11.30 pm.  You also sent an SMS message to Zang on 27 October 2019 once with Zang messaging you back five minutes later and calling twice that day. 

11Between 12.58 am on 5 November 2019 to 7.48 pm on 6 November 2019 you attempted to contact Zang 28 times.  You also tried once each on 7, 9 and 10 November 2019; however, Zang changed her phone number and did not speak with you.

12At approximately 11.40 pm on 10 November 2019, Zang arrived home at an address in Baker Street, Richmond.  Some of her housemates arrived home at approximately 12.50 am on 11 November 2019 and Zang began speaking with them.

13Zang and her housemates heard a smashing sound at the front door and could hear someone trying to break in.  Zang heard the person yelling and saying, 'Fuck you, I find a new job for you and you didn't give me back anything.  You are such a bad person.  You don't know how to give back to people who help you'.  Zang could tell from the voice that it was you.

14Zang and another housemate Ben Chen leant against the front door to stop you from pushing it in.  Zang saw another housemate open his bedroom door, so she ran inside that room to hide, closing the door behind her.  Zang locked the door and pushed her body against it.

15You went around to the back of the house and entered through the back door, carrying a meat cleaver and gardening scissors.  You went to Zang's bedroom and damaged the door; however, when seeing that Zang was not there, you ran through the house to the bedroom where Zang was hiding.  You started to hack at the door with the meat cleaver, trying to get in.  One of Zang's housemates, Jonathan Raj, saw this occurring and ran outside to call the police. 

16Zang heard your voice whilst in the bedroom and believed you were inside the house and she looked through the gap in the door and saw you standing there.  She could hear smashing and banging coming from outside the room and you also smashed on the door and you were cursing. 

17You left the house and started to smash the windows to the room in which Zang had locked herself.

18Police arrived at the address and saw you at the front of the house, still holding the meat cleaver in your left hand and garden scissors in your right.  Police noted that both items had blood on them and that you were bleeding from your left palm.  Police members yelled to you to not move and get down on the ground; however, you instead raised your hands and walked towards the officers.  The police had parked cars between themselves and you and again requested that you stop and drop the weapons.

19You did not drop the weapons but stopped short of the officers.  Police then deployed OC spray in  your eyes; however, you did not drop the weapons, causing police to physically take you to the ground and take the weapons from your hands.  It is not alleged by the prosecution that you were refusing to be arrested and that your language difficulties accounted for a large amount of this behaviour.

20Police provided you with after care for the OC spray and you were then transported to St Vincent's Hospital for assessment and medical treatment for the OC spray.  Once completed, you were taken to Richmond police station for interview.

21Police determined that you were alcohol affected and not fit for interview, so you were housed in the cells to give you time to rest.

22At approximately 11.59 pm you were interviewed with the aid or an interpreter and answered the majority of the questions put to you and stated no comment at others.  You stated:

(a)You were 'drunk last night and couldn't remember anything'.

(b)You used to live at the address in Baker Street, Richmond.  You lived there for seven months with Zang, who was your girlfriend at the time.  Your relationship ended about a month ago and started in March 2018.  You met in Mildura on a farm and moved to the Baker Street address together.  You lived there from March 2018 to October 2018.

(c)When asked if it was a definite relationship or whether you believed you were in a relationship and Zang did not believe you were in a relationship, you responded that it was only from your side.

(d)That you worked with Zang between March and July 2018 in a barbecue shop and were in an intimate relationship until September 2019, when she ended the relationship.

(e)Since about September 2019 you and Zang would speak on the phone, but you would call her more.  This would be daily or one or two calls a day.  At times Zang would tell you not to call her.  This was around August 2019, as she said she had a husband.

(f)You knew Zang took public transport home from work but did not follow her.  You just waited for her sometimes.  You had only waited for her twice:  once at her stop near where she lived and once further away.

(g)You never followed her from her home or from her workplace and you never sat at her home and watched who was coming and going.

(h)You had been drinking Chinese wine the night before the interview at home alone and do not remember what had happened.

(i)You did not recognise the meat cleaver or garden scissors when they were shown to you, but you confirmed that the keys found at the scene were yours.

(j)You denied committing the aggravated burglary.

Assessment of gravity of offending

23It was submitted by your counsel that this constituted serious offending and that the court in determining the objective seriousness of this particular aggravated burglary should have regard to the considerations espoused by our Court of Appeal in the case of DPP v Meyers [2014] VSCA 314. With those considerations in mind it was submitted the court should view your offending as follows: your intention at the point of entry of the share house was to assault. You attempted to smash and push your way into the house, ultimately entering via a back door armed with a meat cleaver and garden scissors. You engaged in this conduct alone late at night. You knew the victim would be at home and it is accepted that the victim had reason to be frightened of you as per the alleged conduct constituting Charge 1. It was additionally conceded that there were a number of aggravating features to the offending contained in the above factors. Overall your conduct was submitted as not being at the low end of offences of this type but that it must be seen in the context of your background and the lead-up to its commission.

24As to the dispute about the nature of your relationship with the victim, which will be expanded on below, it was submitted by your counsel that it did not matter as it was conceded that the victim was already in fear of you based on the months of stalking preceding the aggravated burglary.  In determining Charge 2's objective gravity there are aggravating features if it were found to have occurred in a family violence context and aggravating features if you were someone the victim had no relation with and had acted as you did.  Both pathways were submitted to have objective seriousness in each and that the court was not in a position where it must reconcile the background of the offending.

25The prosecution submitted that they were in agreement with the factors as set out above; however, there were aggravating features to your offending owing to the family violence nature, being at the end of a relationship.  There was an indicator of planning in your offending, as you attended armed with multiple items.  And as disclosed to Ms Danswan, your intention in attending the property was to stop the victim reporting you to the authorities with respect to your visa status and endeavour to change her mind as to your relationship.  This final point is of particular concern in the context of your attendance with weapons.

26As to the charge of stalking, the prosecution submitted that the offending occurred over an extended period, being a total of 71 days, and was more serious than just phone calls and text messages, though these were significant in and of themselves.  Between 20 October 2019 and 10 November 2019 you had called or sent the victim a text message 60 times.  You had on occasions attended tram stops in order to observe the victim throughout the period and the victim's reaction was to run.  Furthermore, that in terms of this offending occurring in the context of a relationship breakdown that this is a further aggravating feature, particularly as on your own account the relationship ended in September 2019 and there is an escalation of calls after it was made clear that the relationship had come to an end.

27In response to your counsel's submission that the victim had reason to be frightened of you with respect to Charge 2 because of your admitted conduct constituting Charge 1, the prosecution submitted that such a position would not equate to double punishment owing to the same behaviour being part of the facts of Charge 1, as the important feature being the level of fear of the victim at the time of the aggravated burglary and not the particular facts of the alleged stalking that preceded it. 

28Overall the prosecution submitted that your culpability for this offending was high and nothing was submitted by the defence to lower it.

Criminal record and victim impact statement

29You do not have a criminal record and no victim impact statement has been provided to the court.  The Crown did submit that the statement of the victim contains numerous statements of her fear of you concluding with the statement, 'I was so scared that he was going to get inside my room and stab me with the chopping knife'.  He submitted that the court can take judicial notice of the impacts of this type of offending has on victims generally.  It is accepted by your counsel that this offending would have had a significant impact on the victim.

Matters in mitigation and personal to you

30You were born and raised in Heilongjiang province in northern China.  Your parents still reside there and you are one of four children, being the only male child.  Your upbringing in China was a positive one and you do not recall any difficulties.  You are now 45 years of age, were previously married in China and are now divorced with one adult son being born from that union.  You have maintained in contact with your family and have sent money back to them up until the time you were remanded.

31You were married for 15 years before your marriage ended in 2011 after discovering that your wife was having an affair.  Your son continued to live with you once your marriage had ended, until you moved to Australia.  At last contact you knew he was living on campus and university.

32You completed your education to a Year 9 level and then went on enlist in the Chinese Army, where you trained for a further three years.  Following this stint in the army you commenced employment at a local grain factory as a machinery mechanic.  You held this role for 10 years before being made redundant due to company restructuring.  You worked as a cook from 2016 to 2017 before moving to Australia.  Upon your arrival you continued in this profession in a Chinese restaurant in Melbourne and have continued to work as a cook in various restaurants until you were placed in custody.

33A psychological report authored by Ms Kerrin Danswan, clinical psychologist, dated 29 April 2020 was provided to the court and now marked as Exhibit 1 on the plea.  In it she provides a similar educational and employment history.  With respect to your family and relationship history it is significantly expanded.  Of note is the fact that you moved to Australia as the wages were low in China and you were responsible for caring for your ageing parents at the same time as your son went through university.  You have not been in contact with any member of your family since being taken into custody and worry about them and are unaware of their current situation.  You regard the period following your marriage ending due to your wife's infidelity as being a very difficult time of your life.

34During the assessment you provided a history of your association with the victim as follows.  You met the victim whilst working at a farm and were both from the same region in China.  You commenced a relationship with her at that time.  The relationship was approximately one year and four months in duration.  A month into your relationship you moved to Melbourne and into a house together.  In October of 2018 you worked in Sydney for a month and during this time a young male tenant moved in with the victim.  Upon your return you and the victim continued to live with the young male until April 2019, when you decided to rent a place closer to your employment.  Three months after you started living separately and the victim informed you that she had moved out of the property.  You contacted the landlord, seeking to move back, and were informed that you 'would not want to see', which led you to suspect that your partner was engaged in an affair with the young male tenant.  You continued the relationship despite your suspicions until it officially ended in September 2019 when the victim informed you her husband was moving to Australia.  You previously believed her to be divorced.  Following the breakup the victim stopped taking your calls and you admitted to attending the tram stop that she alighted from in an attempt to talk and win her back.  During this conversation the victim told you she had no interest in resuming the relationship and, in the course of that conversation, the victim threatened to call the authorities in relation to your expired visa, making you anxious.  Your declarations of feeling a strong connection and being in love with the victim was raised a number of times in Ms Danswan's report.

35You report no current medical conditions, have never sought treatment with regard to your mental health but did feel emotionally distressed and depressed when this relationship had ended, the effects of this being disturbed sleep pattern, lethargy most days, difficulty concentrating on anything aside from the relationship and experiencing feelings of worthlessness and depression most of the time.  You have admitted that you did not handle the relationship ending whilst coming to terms with your belief that Zang had not been honest about her marriage and likely had an affair.

36On the night of the offending you were upset that she did not wish to continue the relationship.  You were depressed and anxious about her threat regarding your visa and fearful for your future. 

37Ms Danswan writes that your intention was not to harm the victim, but you wished to gain entry to the premises and talk to her, stop her reporting you to the authorities and had yet again naively hoped to change her mind about your relationship.  Reflecting on your decision to attend the share house, you acknowledged that she did have housemates and you had not considered the impact of your actions on the victim or them.  You simply stated that you were not thinking clearly and regretted your actions.

38Upon examination you appeared at least of average intelligence, with your thought content not containing any unusual preoccupations or bizarre ideas and no evidence of formal thought disorder.  However, you did demonstrate limited problem-solving skills and a history of poor judgment, particularly in the context of intimate relationships. 

39In Ms Danswan's opinion, at the time of the offending you were experiencing symptoms consistent with a mild single depressive episode and had consumed a vast amount of alcohol, impacting your decision-making.  You reported that you have never tried any illicit substances and denied a history of alcoholism, stating that you consumed a glass of wine daily but were heavily intoxicated on the night that you were arrested.  Danswan linked your excessive consumption of alcohol as a way you sought to reduce your psychological distress caused by your feelings of genuine anxiety about potentially being reported, combined with your depressive state.  It is likely that your alcohol use impaired your reasoning, judgment and insight into your actions.

40To Ms Danswan, you appeared to have limited coping strategies and may lack social supports, be socially isolated and were dependent on your former partner.  You were unable to cope effectively and began to ruminate on the relationship and how you would convince the victim to resume the relationship.  Additionally the end of your marriage occurred as a result of cheating on your wife's part and your belief that the victim was also cheating may have exacerbated past feelings of hurt and rejection.

41It is with these considerations and your statement that your intention was not to harm anyone that evening that Ms Danswan has assessed your general risk of reoffending as low.  The factors which would increase this risk, including being involved in intimate relationships, your lack of suitable coping skills and inability to regulate your emotions in a prosocial manner, place you at risk of engaging in inappropriate behaviour when you feel hurt or rejected by a partner.  Also clearly you are likely to resort to poor decision-making when intoxicated.

Sentencing principles

42In sentencing you I must have regard to a range of different factors.  I must give effect to the principles of deterrence both general and specific.  I must deter other people from behaving like you.  I must deter you from repeating such behaviour and impose a just punishment in all the circumstances.  I must express the community's denunciation of your conduct and promote your rehabilitation.  I must also have regard to current sentencing practices for offences of this kind that you have committed and I must balance your personal circumstances.

Current sentencing practices

43In the course of submissions your counsel directed the court to the following comparable County Court cases:  DPP v Rogers [2017] VCC 43 and DPP v Stewart [2019] VCC 2086. These cases do serve as some reference to the objective gravity and seriousness of your offending and whilst the court has taken the cases provided into account in determining the appropriate sentences as being informed by them I am not bound by them in exercising my sentencing discretion and view current sentencing practice as only one of the factors I must consider along the lines of the principles of DPP v Dalgliesh [2017] HCA 41.

Plea of guilty and remorse

44Both counsel submitted that you made admission to the police, that your plea was made at the committal stage and at the earliest possible opportunity.  Your counsel submitted that your plea should be regarded as having significant utilitarian value, more so even due to the current health crisis of COVID-19 and its impacts on the criminal justice system and the cessation of jury trials it has caused.  On that point the court has considered the decision of Justice Jane Dixon in DPP v Bourke [2020] VSC 130 at paragraph 32.

45I take the timing of your plea into account and you will of course also receive credit for its objective utilitarian benefit, through the saving of time and resources associated with the running of a trial, and I do recognise a level of remorse and insight with respect to this offending and your subjective willingness to facilitate the course of justice.  It is accepted that you have demonstrated genuine remorse for this offending, for your conduct and its impact, and was submitted to be so despite not having a full recollection of what happened, further that you have demonstrated insight and remorse as reflected in Exhibit 1.

Mental health

46Your counsel submitted that this is not a case where any of the diagnoses of psychologist Ms Danswan are relied upon in mitigation nor as a basis for any submission that the Verdins principles have been enlivened.  Further, the material extracted above and her conclusions, specifically the context of your relationship with the victims, your previous issues relating to relationship breakdown involving infidelity with your wife, are solely to assist the court in providing the context in how this offending escalated to you violently trying to enter the victim's home.  Clearly you had not coped well with the distance that had been put between the two of you and had therefore spiralled into stalking behaviour and which culminated in the aggravated burglary.  This does go somewhat to explain what was submitted to be an out-of-character type of attack for a man of your age with no prior convictions.

47As to the evident conflict between what the prosecution and your counsel submit as to what your relationship was with the victim, it was submitted by your counsel that the court could accept your version of those facts as you were found by Ms Danswan not to be significantly impaired in any way that would suggest the relationship be a delusion of some kind and that your version was consistent with what you had told both the police at the time of the record of interview and Ms Danswan during the assessment.

Impact of imprisonment and COVID-19

48This period on remand marks your first time in custody.  One of the consequences of you being remanded is that you have been unable to communicate with your family in China and acquaintances in Melbourne.  While you did have their contact details and were in contact with them prior to being placed in custody, you entered custody without those details.  As such it was submitted that you had been completely isolated whilst in custody save for a few fellow prisoners who speak your language and this is likely to continue.  The language deficit you face has been submitted to be significant, with your grasp of English being almost non-existent save for some words and phrases.

49Additionally there has been the impact of COVID-19 upon our prison system and its operation.  Not only are you understandably concerned for your own health and safety in custody now that cases have been detected within prisons, you have been impacted by the necessary lockdowns occurring and the reduced access to employment, exercise, education and programs.  Added to this is the fact that you have no information as to the status of your family in China and whether they have been impacted or not.  This has left you labouring with intense feelings and difficulties.

50Finally it was submitted that you have been moved around within the system and for a time placed in a management unit for protection due to your life being threatened by two Malaysian men.  Whilst there was not a physical altercation or assault upon you, you have now been moved to a different prison and have greater feelings of disconnection and isolation through these threats in custody.

51The Crown submitted that the extent to which COVID-19 is relevant to sentence is a matter to be resolved on the particular facts of an individual case.  Whilst conceding a number of inferences as to COVID-19's likely effects on the Corrections system, it was further submitted that what weight is to be attributed to the asserted additional hardship faced in custody is a matter of fact and degree and to be considered on a case-by-case basis.  With reference to those likely effects and the submissions appropriately put by defence counsel, the prosecution accepted and concede the matters submitted to be present before the court.

Deportation

52While you were uncertain as to your visa status, having engaged a migration agent to apply for a bridging visa in 2018, it has been clarified following the aforementioned threats you have received in custody.  Your prison indent indicates that you have been categorised as an unlawful non-citizen.  The uncertainty of what the future holds for you on that classification was submitted to be an additional aspect that would impact your time in custody.

53The prosecution submitted that the prospect that an offender will be deported following sentence is relevant to sentence if it will make the burden of imprisonment more onerous to be given limited weight in cases where the offending is particularly serious and dependent on the personal circumstances of the offender and their ties in it to Australia.  It was conceded in this case that you will be impacted during your time in custody with the uncertainty of your visa situation and the likelihood of you being deported at the completion of your sentence.  However, as your family and support network remains in China, upon deportation you will be able to re-engage with them.  Whilst it is conceded that the burden of imprisonment would be more onerous due to your isolation from your family, it was submitted that the mitigatory nature of the possibility of deportation has some work to do and should be somewhat limited in the court's instinctive synthesis.

Prospects of rehabilitation

54In assessing your prospects of rehabilitation it was submitted that your lack of criminal history, demonstrated work history, absence of substance abuse history, acceptance of responsibility for this offending demonstrated remorse.  And your assessment of being a low risk of reoffending by Ms Danswan leads to the conclusion that they should be categorised as excellent.

55The prosecution joined in these submissions, categorising your prospects as being viewed as great; however, there were some concerns as to your rehabilitation, noting the opinion of Ms Danswan to the following effect: 

'His lack of suitable coping skills and inability to regulate his emotions in a prosocial manner place him at risk of engaging in inappropriate behaviour when he is feeling hurt and rejected by a partner'.

She noted that you would need to engage in treatment to mitigate this risk. 

Specific deterrence and community protection

56Your counsel submitted that specific deterrence was capable of some moderation on account of your prior good character, lack of criminal history and the particular circumstances of this case.  Additionally, protection of the community should not overwhelm other considerations having regard to those factors. 

57Conceding that some moderation of specific deterrence was appropriate, owing to your prior good character, prospects of rehabilitation and low likelihood of offending, the prosecution submitted that it remained an important sentencing consideration given the nature and duration of these offences that the court should consider it as an important sentencing factor.

General deterrence and denunciation

58These were submitted by both the Crown and your counsel to be important and relevant considerations, more so in the submission of the prosecution due to the presence of family violence in matters such as this that these factors should be mitigated and that you were an appropriate vehicle for general deterrence.

59Mr Sun, these offences are abhorrent.  People have relationships and sometimes, for whatever reason, they end.  It was made clear to you by the victim through her communications and actions that this relationship was over and she did not wish to discuss this with you any further or see you.  You must have understood that your behaviour was harassing, unacceptable and scared her to the point of running away at the sight of you and scaling a fence.

60Women have the right to feel safe in the community, on public transport and, most importantly, in their homes.  Whilst it is accepted that you were heavily intoxicated at the time of committing the aggravated burglary, that does not detract from the offending, nor the terror the victim must have felt when she observed you trying to force your way into her room with weapons in each hand in the middle of the night.  However aggrieved a man might be or desirous of wanting to continue a romantic relationship and discuss reconciliation with a former partner, this type of behaviour will not be tolerated by our society. It is for the courts to impose appropriate condign punishment which sends a clear message that if you engage in this conduct you will face a term of imprisonment.

Disposition

61In terms of the disposition that should be imposed in all the circumstances of this offending, it was submitted by the Crown and rightly conceded by your counsel that a term of imprisonment comprising a head sentence and a non-parole period was the only disposition open to the court. 

62Your counsel submitted that the court should be mindful of the principle of parsimony in the imposition of sentence and not impose a more severe sentence than that which is necessary to achieve the sentencing purposes.  Additionally that in relation to the three charges, that this is an appropriate case for the application of the totality principle with modest cumulation.

63The Crown submitted that the principles of proportionality and totality were both to be grappled with in this sentencing exercise.  As to the issue of cumulation on the individual terms imposed, it was submitted that there must be a level of cumulation between the charge of stalking and that of aggravated burglary.  These two offences contained utterly different acts of criminality and both being serious examples of these offences.

64Whilst these acts could be considered an ongoing course of offending relating to the breakdown of your relationship, the stalking charge is submitted to be made of defined individual acts and the criminality of what occurred as to the aggravated burglary sits outside those acts.  As to Charge 3 it was conceded that the criminal damage occurred immediately upon the completion of Charge 2 and therefore should have substantial concurrency.

65Ms Zhen, I will now read paragraph 65 to 71 in one block.  The sentence is as follows, Mr Sun. 

66Mr Sun, on Charge 2 of aggravated burglary you are convicted and sentenced to three years' imprisonment.  This is the base sentence.

67On Charge 1 of stalking you are convicted and sentenced to 15 months' imprisonment with six months to be served cumulatively on Charge 2.

68On Charge 3 of criminal damage you are convicted and sentenced to three months' imprisonment with one month to be served cumulatively on Charge 2.

69This makes for a total effective sentence of three years and seven months' imprisonment and I direct that you serve a non-parole period of 30 months before being eligible for parole, which I believe is appropriate in all the circumstances.  I declare that 298 days, not 299 - 298 days not including today have already been served as a pre-sentence detention.

70Pursuant to s.6AAA of the Sentencing Act, but for your pleas of guilty I would have imposed a total effective sentence of five years with a non-parole period of three years and six months.  The prosecution have also made application for a forfeiture order and a disposal order, which is by consent, and I will make the orders sought as to the items set out in the schedule.

71Would you read those paragraphs, please.  Have you finished?  Yes.  anything further, counsel?

72COUNSEL:  No, Your Honour.

73HIS HONOUR:  All right.  Thank you for your assistance.  Can we adjourn the court, please. 

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