Director of Public Prosecutions v Tan
[2019] VCC 1221
•1 August 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-18-02583
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YAFEI TAN |
---
| JUDGE: | HER HONOUR JUDGE QUIN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 July 2019 |
| DATE OF SENTENCE: | 1 August 2019 |
| CASE MAY BE CITED AS: | DPP v TAN |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1221 |
REASONS FOR SENTENCE
---Subject: False imprisonment, recklessly causing injury
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Pezzimenti | OPP |
| For the Accused | Mr L. Carr | Tony Hargreaves & Associates |
1Yafei TAN you have pleaded guilty to one count of false imprisonment and one count of recklessly causing injury. The maximum penalties for these offences are 10 years and 5 years respectively.
2Your offending relates to Ms. Shinbee Cho, a Korean national, who came to Australia in March 2016. In August 2016, Ms. Cho was having financial difficulties and ultimately gained work in an escort agency. It was there that she came in contact with your co-accused Yixuan LEI. Ms LEI arranged bookings and provided relevant details to her – after her services were complete, she was to provide $150 of the $400 she received from customers to Ms LEI . On the first occasion of her working she performed the services and was paid, however she kept the $400 and then blocked Ms LEI as a contact through their communication source WeChat.
3In December 2016, Ms. Cho arranged for work with a different escort agency through you. You explained that the rules of your agency were the same as the other but that the client paid $450 and the escort received $300 of that sum. Ms Cho worked for you for about a month however on the last day she kept $1000 she was supposed to give the agency, fearful she had contracted a sexually transmitted disease. She again blocked you on WeChat, then returned to Korea in February 2017.
4On 9 June 2017, Ms. Cho arrived back in Melbourne and using a new username on WeChat and having altered her appearance having undergone plastic surgery, recontacted the agency thinking that she would not be recognised.
5Circumstances of offending
6At 4:00 pm on 19 June 2017, Ms Lei contacted her with an appointment and the details of an apartment for her to meet customers. At approximately 5:45 pm Ms LEI collected 2 sets of keys to the apartment. She gave one set to the driver and she retained the other – the driver then collected Ms Cho and took her to that apartment. Ms Lei had contacted Ms Cho telling her the customer would be late.
7Ms Cho waited for a couple of hours at the apartment and you arrived at 9.30pm with Ms Lei. Ms Lei had with her a bag containing a measuring tape and cotton straps. You both told Ms Cho to shut up and lie on the bed – Ms Lei then took her phone from her.
8A struggle ensued though Ms Lei eventually tied her up, with you restraining her by her wrists – she was punched with an open and closed fist a number of times.
9You took a wet tea towel and placed it over her nose and mouth, making it difficult for her to breathe, and shouted demands for money. Ms Lei continued to hold her down by the wrists whilst this was happening.
10Ms Cho continued struggling – you threatened to rape her and to send a video to her friends and mother. Her mother’s details were discovered by you and Ms Lei when her phone was taken from her. You went to the kitchen and got a knife, pointed it at her face and threatened to kill her.
11Ms Cho eventually handed over her handbag and her passport and NAB card were also taken – Ms Lei had her phone and logged into her bank account and transferred $1000 from her account. This was recorded as occurring at 10.11pm.
Ms Lei threatened to take more funds and left the apartment for about 15 minutes – she did not succeed though said you would wait again till midnight. Ms Lei told her she could get her phone, bank card and passport back the next day at 2:00 pm. Ms Cho’s hands were soon untied, and Ms Lei took her downstairs, waited for a taxi to arrive to take her home. Police and security were called a short time after she after she arrived at her home.
13 The period of false imprisonment is from the time that you both arrived at the apartment until Ms. Cho left in the taxi, a period of approximately 45 minutes to an hour. Ms Cho’s injuries, included red marks and bruising to her wrists, arms and legs.
14 Investigation, arrest and interview
15 Investigations soon revealed Ms Lei’s connection to this offending including CCTV footage, DNA, her banking records and other rental documents linking her to the apartment.
16 She was arrested on 21 June 2017. Your identity was unknown at that time – On 14 July 2018 Ms CHO saw you in the vicinity of the Westin Hotel in Melbourne CBD and she contacted police who arrested you soon thereafter.
17 Interview
18 The full details of your interview are summarised in the Prosecution Opening Exhibit A.
19 You denied any wrongdoing other than asking the girl for the money that she owed you – you said she was asleep in the apartment when you arrived and that she apologised for owing you money, and said she would transfer funds to Ms LEI –you then helped her get a taxi. You denied inflicting any injuries or threatening Ms CHO.
20 Victim impact statement
21 I received a victim impact statement from Ms Cho dated 19 July 2019 which was read in Court by the prosecutor. Ms Cho has had difficulties sleeping and has nightmares about the offending. She requires medication for both sleeping and depression. She has difficulties trusting people. She is concerned that she will run into as she did in July last year, so she limits her usual social activities. She said:
22 nobody will ever understand what I am suffering. I want to remove the memory and pain of that day forever but the more I try the more it reminds me.
23 Personal circumstances
24 I also take into account the material in the report prepared by Patrick Newton Psychologist dated 13 July 2018, including as to your personal history.
25 You are currently aged 28 – you were born in China and were raised primarily by your maternal grandparents as your parents were required to travel extensively for work.
26 You completed your primary and secondary education in China then studied telecommunications at university. You decided to travel to Australia to pursue further studies after completing first year. You came to Australia in 2011 and studied accountancy at the University of Adelaide. You graduated in 2015 then moved to Melbourne, obtaining a job as an accountant.
27 In 2016 you met Ms Pei Shan HU and soon after you were married. I was informed that this relationship was troubled from the outset with you experiencing financial difficulties and you also becoming involved in the use of “ice”. You had personal grief issues with the passing of your maternal grandfather, who had cared for you from a young age. You formally separated when you were remanded in custody for these matters on 14 July. You spent about 2 months in custody before being granted bail and although you are no longer together, your wife attended court to support you. You had other support from friends in court.
28 You have been consistently employed since you completed your studies. You work at Great Wall Capital Partners, a real estate and property development business in the accounting area. You also assist with book keeping and administrative tasks in a pizza business. I received a character reference from Mr Xu the operator of the pizza business who attests to your hard work and commitment to his business, as well as your good character and his shock on discovering the circumstances of this offending. Similar sentiments are expressed in another character reference from Mr Zhang who details your contribution to a Chinese Community organisation – he indicates that you assist with new Chinese migrants by providing them support and guidance whilst they settle in Australia. I take the character material into account.
29 You have no prior convictions or outstanding matters.
30 You have a history of drug and alcohol problems. I was informed that you were using “ice” at the time of this offending and continued to do so until the time of your arrest. You have significant issues with alcohol, however this appeared to develop more so after you were released from custody. Both your drug and alcohol issues are matters that Mr Newton recommends requiring attention.
31 As to your mental health Mr Newton opined:
32 You presented with symptoms of mild depression, with persistent physical malaise, lowered energy levels, sadness and a sense of having brought shame upon your family. Additionally, you are deeply concerned and distressed about the impact of this on your immigration status and your marriage. Mr Newton considered your symptoms as primarily reactive in nature. He viewed your symptoms as sufficiently severe to meet DSM-5 criteria for the diagnosis of an adjustment disorder with depressed mood.
33 He regarded your thought processes as normal and that your capacity for reality testing was not impaired. He thought you were of at least average intelligence.
34 He identified your treatment needs to include:
35 1 for depression encompassing an evaluation for appropriate antidepressant medication together with the provision of counselling;
36 2, substance-related treatment for both drug use and alcohol – he noted that your insight into substance-related matters is at best intuitive and you are considered to remain at high risk for further problems in this area;
37 3, social-skills training to address your maladaptive personality traits;
38 4, intervention to address offence-specific issues and reduce the risk of you committing further violent offences. A particular emphasis on the enhancement of victim empathy and the development of better conflict-management skills he regarded as important aspects of any such treatment.
39 You are concerned about your immigration status as a consequence of the sentence that I am about to impose. I have considered the relevant sentencing principles recently set out in Loftus [2019] VSCA 24 by the Court of Appeal in respect of your predicament.
40 In assessing the prospect of deportation, it is relevant to consider whether the sentence imposed will trigger a discretion to cancel your visa or whether there is a duty to do so. There are two ways in which the prospect of deportation may be relevant:
41 The anticipation of deportation may make your period in custody more onerous; and
42 deportation can be considered an additional punishment if it destroys the opportunity for an individual to be able to settle permanently in Australia.
43 In addition to the immigration issue; Mr Newton noted and I accept that your eccentricity, poor social skills, and diverse cultural background would combine to make you a comparatively vulnerable prisoner.
44 Plea of guilty
45 I accept that due to those factors a sentence of imprisonment or the serving of a sentence of imprisonment will be more burdensome for you. You pleaded guilty at a relatively early stage at the committal - it was at an early opportunity. No witnesses were required to give evidence, particularly Ms. Cho was not required to relive this traumatic incident. I accept that your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit.
46 You demonstrated no remorse when interviewed by police which was consistent with Mr Newton’s view that your remorse was “quite superficial”. In the report provided to Corrections it is noted:
47 You struggled to demonstrate insight and/or accountability for your actions defending your actions saying the victim had taken your money. You did acknowledge what you did was wrong and that your offending bought shame and embarrassment to you and your family.
48 I accept that your plea is indicative of some remorse.
49 Rehabilitation prospects
50 As to your rehabilitation prospects, your counsel submitted that you had good rehabilitation prospects given:
51 That you have no prior convictions;
52 Have family and community support;
53 Stable employment;
54 Your experience in custody when you were remanded for a period of almost two months;
55 And the realisation of the possible impact of this offending on your immigration status.
56 Although there clearly are some positive features that auger well for your rehabilitation, you need to address the issues outlined by Mr Newton, which I have previously referred to. I have less confidence in your prospects of rehabilitation without such engagement.
57 Aggravating features
58 There were some aggravating features in relation to this offending:
59 It occurred in company;
60 The impact on the victim was significant;
61 You were the perpetrator of much of the violence and threats towards her;
62 It was however conceded that you had a lesser role in the organisation and planning of the offence.
63 Your counsel argued that principles of parity applied with your co-accused – I regard parity of limited application given Ms LEI was a young offender and was in immigration detention at the time of sentence.
64 Defence position
65 Your counsel submitted that I should impose a combined sentence namely that you should be placed on a Community Correction Order to commence immediately, or at the completion of a further period of imprisonment. The prosecution submitted that all sentencing purposes could be served by the imposition of a combined sentence, and further submitted that I would not be falling into error by the imposition of a sentence that did not require you to serve a further term in custody.
66 It was necessary for me to receive an assessment report under the Sentencing Act before I could impose a Community Correction Order and Corrections Victoria have found you suitable for a Community Correction Order.
67 No doubt this was a terrifying experience for Ms Cho – it was for a period of almost an hour and related to a relatively small amount of money – the community should not tolerate one taking the law or enforcement of debt into their own hands in the manner in which you did – general deterrence and just punishment are relevant sentencing considerations – these must be balanced with the significant matters in your favour including your plea and personal circumstances. In determining your sentence I have taken into account the time that you have spent in custody as a consequence of these matters.
68 If you could please stand.
69 In respect of Charge 1 you are Convicted and sentenced to a period of imprisonment of 59 days or time served and a Community Correction Order for a period of two years.
70 In respect of Charge 2 you are convicted and sentenced to a Community Correction Order for a period of 2 years.
71 You will be required to do 100 hours community work
72 I will incorporate into the order the conditions as are recommended in the report which can be summarised as follows:
73 You are required to attend as directed for treatment and rehabilitation in respect to alcohol use, mental health, and offence specific behavior.
74 You will also be required to attend Corrections for supervision.
75 As recommend in the report I will allow 20 hours credit in respect of your treatment in rehabilitation towards your community hour work. It is important that you understand that it is necessary for you to do this work and also for you to understand if you commit any other offence in the time of the order you will it is highly likely that you will be breached and the matter will return to me and I will resentence you. If that occurs I will have more limited options in relation to the disposition that I can impose.
76 I understand s.464 has been made by consent I need to inform you that if you do not cooperate with the police with obtaining that sample that they are able to use reasonable force in getting the sample.
77 Ancillary orders/declarations
78 Pursuant to Section 6AAA of the Sentencing Act if you had not pleaded guilty to this matter I would have imposed a sentence of imprisonment of 12 months.
79 Is there anything else I need to do? I suppose I should formally declare the PSD 59 days.
80 You can sit down. Are you prepared to undergo that order Mr Tan?
81 ACCUSED: You mean the community?
82 HER HONOUR: Do you consent to the order?
83 ACCUSED: Yes, I consent.
84 HER HONOUR: All right, my Associate will just take it to you in a minute.
85 MR CARR: Could I approach my client, You Honour?
86 HER HONOUR: Sure
87 MR CARR: Thank you, Your Honour.
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