Director of Public Prosecutions v Wang (Sentence)
[2021] VCC 1570
•15 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00622
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZHIYUAN WANG |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 October 2021 | |
DATE OF SENTENCE: | 15 October 2021 | |
CASE MAY BE CITED AS: | DPP v Wang (Sentence) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1570 | |
REASONS FOR SENTENCE
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Subject:Criminal law - sentence
Catchwords: Criminal damage by fire with intent to endanger life – rolled up charge – no priors – guilty plea – deprived childhood – history of psychiatric admissions prior to offending – diagnosis of Major Depressive Disorder and Borderline Personality Disorder – application of Bugmy and Verdins principles – burden of imprisonment – prospect of deportation – combination sentence of imprisonment and community correction order
Legislation Cited: Crimes Act 1958, s197(2) and s197(6); Sentencing Act 1991
Cases Cited:Worboyes v. The Queen [2021] VSCA 169; R v. Verdins (2007) 16 VR 269; Daylia Brown v. The Queen [2020] VSCA 212; R v. Mills [1998] 4 VR 235; Azzopardi v. The Queen [2011] VSCA 372; Boulton v. The Queen [2014] VSCA 342
Sentence: Imprisonment for 320 days, declared as having been served, to be followed by a Community Correction Order of three years’ duration
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. McGarvie | Office of Public Prosecutions Victoria |
| For the Accused | Mr M. Brennan | Emma Turnbull Lawyers |
HER HONOUR:
1
Zhiyuan Wang, following a sentencing indication given by me, you pleaded guilty to one charge of destroying property with intent to endanger life contrary to
s197(2) and s197(6) of the Crimes Act 1958 ('the Act') arising from the events of 26 March 2020. The maximum penalty prescribed for this offence is 15 years’ imprisonment.
2The charges arise from the events in the early hours of 26 March 2020, when you set fire to bedding in your bedroom in a house where five others were sleeping. Whilst the single charge is subject to the one maximum penalty, it is necessary for the sentence to reflect the fact this is a rolled up charge of criminal damage by fire, encompassing an intent to endanger the lives of not one, but five people living at the property.
3You were born in China in November 1996. You came to Australia in 2018 but returned to China intermittently. In February 2020 you returned to Australia at the urging of your parents. At the time you committed this offence, you were 23 years old and had no prior criminal history.
Background
4Before I turn to the circumstances of your offending on 26 March 2020, it is appropriate to first detail some of the events that occurred in the months leading up to the offence.
5Soon after arriving in Melbourne in February 2020, you were admitted to the Alfred Hospital for psychiatric treatment following a suicide attempt and were discharged on 29 February 2020.
6On 11 March 2020 you attended the Dandenong Magistrates’ Court to respond to an application for a family violence intervention order made by your father. At the court hearing, you were observed to ‘breakdown’ and were admitted to the psychiatric unit at St Vincent’s Hospital for two days, before being discharged. The hospital records indicate you believed that your parents had been 'replaced' and feared the hospital would release you to a ‘fake family’ and you would be arrested by Chinese police.
7Five days later, on 17 March 2020 you attended the Glen Waverley police station and told police you had breached the intervention order made by the Magistrates’ Court. You attempted to persuade the police to take you into custody. When the police told you that you would not be remanded for breaching the intervention order, you told them you wanted to be taken into custody to stop you from hurting yourself, your father and others. You then told police you would 'have to commit more serious offences' so that you could be incarcerated. The police responded appropriately by arranging for you to be taken to Monash Hospital for a mental health assessment.
8On 19 March 2020, you moved into the home of Ms Binbin Xu and her family in Glen Waverley. Ms Xu is a friend of your father's. He had contacted Ms Xu to ask if you could stay at her house for two weeks. He said that he and your mother needed to go to Sydney as your mother was having an operation. Ms Xu agreed for you to stay.
9The residence was rented by the family. It was a two-storey property with four bedrooms upstairs and one bedroom downstairs. Five other people resided at the property at the time: Ms Xu and her husband, Zunqun Liu and their son, Chentao Liu, known as Tony in addition to Ms Xu’s cousins, Cunming Yu (known as Wesley) and Xi Lin (also known as Lindsay). They all knew you by the name of William.
10You slept together with four other residents in the bedrooms upstairs. You slept in the upstairs bedroom at the rear of the property. Ms Xu and her husband, Chentao and Xi also slept in bedrooms upstairs. Only Cunming Yu slept in a bedroom downstairs.
11
From the time you moved in, the other residents observed you acting strangely. You remained in your bedroom most of the time, and did not interact with the others. They also noticed you becoming aggressive, slamming your bedroom door and banging on the walls of your bedroom. Worried about your behaviour, Ms Xu contacted your father and told him you were acting strangely. Your father told
Ms Xu that you were just unhappy because of an argument you had had with your parents regarding money.
The offending
12On the evening of 25 March 2020, you and the five other residents were at home. You stayed in your room. The other residents went to bed between 10.30 pm and 1.00 am.
13At approximately 3.45 am on 26 March 2020, you were alone in your room when you lit fire to your bed. The fire burned through the bedding and mattress before spreading throughout the bedroom. After lighting the fire, you walked out of your room, closing the bedroom door. You left the bedroom window open. You then left the premises without taking any steps to wake any of the other residents sleeping in the house. You left the front door wide open as you left. It is this conduct that gives rise to Charge 1: destroying property with intent to endanger life.
14Fortunately, Ms Xu woke to the smell of smoke and alerted her husband. They saw their bedroom had filled with smoke. They left their room and saw smoke coming from your room. They pushed the door open and saw that your bedroom was also full of smoke. They immediately woke their son, Chentao (Tony) who saw ‘smoke everywhere’ and flames in your room.
15Zunquin Liu then ran to Cunming (Wesley’s) room yelling, ‘Wake up, wake up, there is a fire upstairs’. Cunming (Wesley) got out of bed and ran to the kitchen. He filled a wok with water and took it upstairs. He saw the upstairs area had filled with the smoke. The door to your bedroom was open slightly and he saw smoke coming from your window. Cunming (Wesley) was yelling, 'William fire, fire’. He opened your bedroom door and saw that it was full of smoke but that you were not in your bedroom. Ms Xu saw that your bed was on fire. Zunquin Liu described the fire in your room as being ‘very big’.
16Cunming (Wesley) yelled for everyone to get out of the house and at 4.15 am called Triple 0. The fire brigade and police attended the property at 4.25 am and fortunately the firefighters extinguished the fire. Chentao Liu spoke to police and told them the fire started in your room but that you were now nowhere to be found.
17On the morning of 26 March 2020, the incident was broadcast over the police radio. The broadcast stated that a male of Asian appearance, with a possible surname of ‘Wang’, was believed to have started the fire at the property and had left the address on foot.
18At approximately 5.30 am First Constable Gavin Sceney was on duty at Glen Waverley police station when he observed you outside. He recognised you as he was the police officer who spoke with you on 17 March 2020. When he spoke with you outside the police station he asked what you were doing. You replied, ‘I just murdered someone’. He asked you what had happened, and you told him you had started a fire. When First Constable Sceney asked you what your intention had been, you said, ‘I wanted to kill everyone inside the house’.
19You were arrested and transported to Monash Medical Centre for assessment by a mental health clinician. At 11.00 am you were released from hospital and transported to Oakleigh police station to be interviewed. At the commencement of the interview, you said, ‘I tried to set a fire to kill all my room mates’. After speaking with a lawyer, you were not interviewed further by police.
20The premises were forensically examined by police on 26 March 2020. In the opinion of the police forensic officer, Laura Noonan, the fire was caused by the ignition of combustible materials on the bed, such as the bedding and mattress, and had been directly ignited by the use of a match or cigarette lighter. The fire had spread throughout the bedroom, charring the timber furnishings and burning the exposed surfaces of the fixtures and personal belongings. The fire was largely contained in the bedroom as the door had been closed at the time of the fire. The windows in the room had broken from the heat.
21The residential property was insured at the time. The cost of repair to the damage caused by the fire totalled approximately $65,750. An estimate of damage to the contents of the property, including furniture and carpet, was in the vicinity of $12, 500.
Gravity of offending and victim impact
22I turn now to discuss the objective gravity of your offending and the devastating impact it had on the victims.
23The act of criminal damage by fire with intent to endanger life is an inherently serious offence, as gauged by the maximum penalty of 15 years’ imprisonment set by Parliament. In pleading guilty to this offence, you accept that you knew or believed that the lives of those at the property were more likely than not to be endangered by the destruction of the premises when you lit the fire.
24Self-evidently, lighting a fire in these circumstances posed a significant risk to the lives of the others. There are a number of features that aggravate your offending. First, the fire was lit by you in the early hours of the morning, when you were aware that five other people were asleep in their bedrooms. The victims, at that hour, were extremely vulnerable. Secondly, having lit the fire you made no attempt to alert or warn the victims about your actions, or to render any assistance once the fire had been lit. To the contrary, you walked out of the house without giving any consideration to the plight of the victims. In doing so, you turned your back on the kindness shown by Ms Xu and her family in agreeing to take you into their home and was a breach of the trust they extended to you in allowing you to live with them.
25This was a terrifying ordeal for the victims. The consequences could have been catastrophic. It is remarkably fortunate that the family awoke and the fire was extinguished without any of the victims being harmed. However, the trauma of the night and the aftermath of the incident has had a devastating impact on the emotional and psychological wellbeing on each of the victims. This is tellingly illustrated by the victim impact statements made by Ms Xu, her husband, Mr Liu, and Cunming Yu that were read in court at your plea hearing.
26Ms Xu describes her sense of betrayal when, after taking you into her home, you set fire to the house and ran away. She says the impact of your offending has ‘completely changed her life’. She struggles with sleep and ruminates about the frightening events of that night. She now struggles to concentrate and feels depressed. Your offending has impacted on her ability to socialise and work. She was no longer able to continue her job, which has had a significant financial impact on her. She says she has ‘no idea what life will be in the future’.
27Mr Liu describes suffering severe anxiety and exhaustion. He says they lost their home and for a long time afterwards his family did not have a stable place to live and were physically and mentally exhausted by moving from place to place. The trauma of the night has impacted on his relationship with his wife and his friends. Sadly he says barely anything makes him feel happy. Ms Xu also describes no longer feeling safe.
28This was a serious instance of the offence of criminal damage by fire with intent to endanger life. Although the one maximum penalty applies, it must be borne in mind that you are being sentenced in respect of an intent to endanger five separate lives. It is acknowledged by your legal representative, Mr Brennan, that this is objectively serious offending, and that there was some pre-meditation in your actions; however, it is submitted that a number of unusual and compelling circumstances apply in reducing your moral culpability for the offending. This is informed by your personal background and psychiatric history, to which I now turn.
Personal history and background
29Much of your personal history is contained in the report of Dr Nina Zimmerman, Consultant Psychiatrist, dated 12 August 2021. Dr Zimmerman had previously assessed you on 25 November 2020 and found you fit to plead[1]. She assessed you again on 20 July 2021 for the purposes of these proceedings. On both occasions you were assessed with the assistance of a Mandarin interpreter. With your permission, Dr Zimmerman also spoke to your father on 28 July 2021, now living in Shanghai, to clarify aspects of your personal history.
[1]Dr Zimmerman’s report dated 10 December 2020 also concluded there was no defence of mental impairment available.
30You were born in Shanghai and are the only child of your parents. Your father had a garment factory and your mother also worked. Until the age of three, you lived with your paternal grandparents while both parents worked. At the age of three, you were placed in a 24-hour care centre, due to your parents' concern that you were being ‘spoiled’. You returned to live with your parents when you were five years old. Having spoken with your father, Dr Zimmerman says that your early years being cared for by others was due to a combination of cultural practices, the work demands of your parents and also a sense that your parents struggled with apparently normal infant behaviours, such as crying.
31
From an early age, you struggled with anxiety and had difficulty socialising with other children. In your pre-school years, you would soil yourself, which
Dr Zimmerman says your parents interpreted as wilfulness and attention seeking, and punished you for this. You were shamed by being made to remain in your soiled pants. You continued to wet and soil yourself in early school years, because you were too afraid to raise your hand in class.
32
You struggled to form friendships in either primary or secondary school. Your relationship with your parents, particularly your mother, deteriorated. You told
Dr Zimmerman that you felt that everyone spoke to you in a ‘different tone’ and you desperately wanted to fit in, but could not. This made you irritable, and you turned your anger on your parents. You told Dr Zimmerman that your mother was controlling of you, and more interested in status than your well-being. You father described you as spoiled, disobedient, angry, stubborn and paranoid.
33You completed Year 11 in Shanghai, and then completed a diploma in film studies at a vocational college. During this time you continued to feel different to others, and became embarrassed by your body, choosing not to shower. After completing college, you worked in early childhood learning centres.
34You had a significant relationship with a woman in Shanghai between 2017 and 2019, but this relationship ended at the urging of your parents who wanted you to marry a wealthier woman. In 2018, you came to Australia to work in your parents' business. As stated, you returned to Australia in February 2020, one month before this offending.
Mental health
35For the purposes of her assessment, Dr Zimmerman reviewed the admission and discharge records of the Alfred psychiatric unit for the period 8 February to 29 February 2020. You had been admitted following an overdose of medication and threatening suicide in the context of conflict with your parents. A diagnosis of an adjustment disorder was made. On 7 March 2020, you presented at the Alfred Emergency Department, repeatedly requesting to be ‘locked up’ and that you wanted to die. At the court hearing on 11 March 2020, you became highly distressed, throwing yourself to the floor and banging your head. You were transported to St Vincent’s Emergency Department expressing suicidal ideation, however, this quickly resolved.
36Dr Zimmerman also reviewed clinical notes from the Central Eastern CAT team. On 13 March 2020, you were assessed as having ongoing depressive symptoms, including feelings of helplessness and suicidal thoughts. On 15 March 2020, you told CAT team members you felt ‘nothing’ and expressed a desire to commit a crime so that you could be incarcerated for life and ‘live alone and not be bothered by others’.
37On 20 March 2020, you told CAT team member you were thinking about taking an overdose or 'burning your room’ so that you could be admitted to hospital. You were noted to be depressed, dishevelled with poor eye contact, poor appetite and poor sleep.
38You continued to receive daily CAT team reviews from this point until the offending. On 22 March 2020 the CAT team took you to hospital after you took an overdose the previous night. You were not admitted to hospital as it was felt that an admission would reinforce your impulsive behaviours. You again expressed suicidal thoughts on 23 March 2020, two days prior to the offending. At that point, the CAT team informed you they would be discharging you from their service and referring you to another. Dr Zimmerman states you knew nothing about this service and, at the time the offending occurred, you felt abandoned and unable to cope.
39Dr Zimmerman has diagnosed you with a major depressive disorder. She states that you developed a depressed mood and suicidal behaviour in 2018 in the context of your parents disapproving your relationship and insisting you come to Australia to help in their business. Additionally, Dr Zimmerman assessed you as meeting the criteria for a borderline personality disorder. Consistent with this diagnosis, Dr Zimmerman says you have 'experienced unstable interpersonal relationships, self-image and affects with marked impulsivity’.
40As to your offending, you told Dr Zimmerman that in the lead up to that date, your father had told you he did not intend to continue to support you and was seeking an intervention order in court. You said you were shocked, felt hopeless and heart-broken. You said you wanted to bring it ‘to an end’, hoping to be locked up if you committed a crime.
41In Dr Zimmerman's opinion, there is a direct connection between your personality disorder and major depressive disorder and your offending on 26 March 2020. Based on her assessment, your depression escalated in the months prior to your offending, precipitated by arriving in a country with no or limited English and a deteriorating relationship with your parents, culminating in the intervention order being obtained. Dr Zimmerman explains the effect of your mental illness on your offending in the following way:
I believe that Mr Wang’s borderline personality would have impaired his ability to … exercise appropriate judgment because of his heightened sensitivity to perceived abandonment, his inability to self-soothe, manage his distress and the heightened impulsivity that is a criteria of the disorder. This will have impaired his ability to think clearly and rationally at the time of the offending.
Mr Wang’s cognitions of hopelessness and helplessness associated with his depression will have further reduced his ability to think calmly about the implications of his behaviour.
Sentencing considerations
42I now turn to discuss other relevant sentencing considerations. In written submissions that were expanded upon at your plea hearing, both counsel emphasised matters they submitted should be given weight in the sentence I impose.
Guilty plea
43First, and significantly, is your guilty plea. You were charged and remanded with the offending on 26 March 2020. You were held on remand until being granted bail on 9 February 2021. The matter resolved to a plea of guilty following a sentence indication hearing before me on 23 August 2021. Much of the delay associated with resolving this matter related to the justified need to explore issues associated with your fitness to plead and a potential mental impairment defence. In the circumstances, your plea at this time has significant utility. It not only saved the victims the ordeal of giving evidence in court, but you also saved the community the expense and time associated with a trial. The value of your plea is heightened against a COVID-19 background where an early plea carries greater weight in mitigation than a similar plea entered in other times[2]. Your plea is also an indication of your remorse.
[2]Worboyes v The Queen [2021] VSCA 169, [35]-[39]
Application of Verdins principles
44Generally, serious offending such as this calls for weight to attach to the sentencing principles of general deterrence, just punishment and denunciation. However, as the authority of Verdins[3] makes clear, impaired mental functioning may affect the need for the sentence to operate as a general and specific deterrent, and will also result in the principles of denunciation and just punishment carrying less weight.
[3]R v Verdins (2007) 16 VR 269 (‘Verdins’)
45Based on Dr Zimmerman’s unequivocal expert opinion that your major depressive disorder and borderline personality disorder were directly related and underpinned your offending behaviour, the principles in Verdins are enlivened. In her detailed report, Dr Zimmerman concludes that your mental health disorders led directly to you engaging in ‘self-destructive and impulsive acts of self-harm’ and impaired your ability to manage your distress, to think clearly and rationally at the time of the offending. As such, your personality disorder and depressive disorder enliven the principles set out in Verdins and operate to reduce your moral culpability for these crimes due to your reduced capacity to reason with respect to the wrongfulness of your conduct[4].
[4]Daylia Brown v the Queen [2020] VSCA 212
46Your impaired mental functioning at the time of the offence means that it is less important in sentencing you to set an example to others. Moreover, the need for the sentence to denounce your conduct and operate as a just punishment is less appropriate than it would be for a person unafflicted by these mental health disorders.
47The degree of premeditation regarding your offending must be viewed in the context of your impaired mental functioning at the time, including when you told police you intended to ‘commit more serious offences’ to be incarcerated, two days prior to the offence on 26 March 2020. Similarly, your statement to police that you ‘wanted to kill everyone inside the house’ immediately after lighting the fire, must be considered in the context of your deteriorating mental health at the time. This is best explained in Dr Zimmerman’s report dated 10 December 2020 where she expressed the following expert opinion:
Mr Wang’s decision to set the fire was not specifically linked to a desire to destroy property or indeed to harm others but to commit an act that would result in him being locked away from a society where he felt he had failed to fit in.
48I have taken your impaired mental functioning at the time of the offence into account in moderating the sentence to be imposed.
Youth and prospects of rehabilitation
49At the age of 23 at the time of the offending you were a youthful offender with no prior criminal history. The law recognises that youth is relevant in sentencing for a number of reasons[5]. First, young offenders are generally more immature and prone to impulsive decision making. Secondly, the importance of rehabilitation assumes greater significance for young offenders, and in your case, the prosecution accepts that these principles are prominent considerations in sentencing you.
[5]R v Mills [1998] 4 VR 235, Azzopardi v The Queen [2011] VSCA 372
50Relevantly, since being placed on bail, you have demonstrated strong prospects of rehabilitation. You were bailed subject to engaging with the CISP bail support program and have done so consistently throughout your time on bail. You obtained a mental health care plan from your general practitioner, Dr Joon Win Tan. You self-referred to Access Steps Mental Health team, and have met with a mental health clinician, Ms Cavanagh, on four occasions.
51In addition, you have completed a Salvation Army positive lifestyle program and commenced a men’s behavioural change course through Anglicare. You have developed a supportive relationship with Reverend Tom Koh and attend the Promise Church in Knoxfield twice weekly. Through the church you have been found a supportive home environment in which to live. You also attend other support groups at the church, including a youth group and emotional wellbeing meetings. You secured three days employment a week at an Asian restaurant and you have been volunteering to help others with language skills two days a week at the Salvation Army. Unfortunately, your employment ceased due to COVID restrictions but it is intended to resume. You are working to improve your relationship with your father by regular telephone contact.
52You now have a range of people in the community who support you and have come to know you. Several character references were tendered in your plea hearing. Having spent much time with you over the past six months, Reverend Koh says you are a kind-hearted and gentle person who has matured mentally and emotionally. Having come to know you, Reverend Koh considers your offending was a ‘cry of despair’, ‘a cry for attention and help’ from a young man who was alone and scared. Ms Chen, with whom you now live, says you spend much of your time studying and volunteering, and says she has seen your good nature. Anthony Bezzina, from the Salvation Army speaks of you as polite, helpful and respectful in your work as a volunteer.
53Your father, Weiguo Wang, says you appreciate you committed a serious crime, but that in the six months before the offence your circumstances led to mental illness and the offending. He describes your offending behaviour as ‘out of character’ and says that, on the whole, you are a kind, hardworking and positive person.
54Most significantly, you have experienced stable mental health since being supported on bail and intend to secure ongoing psychological assistance in the community.
55You have no history of drug or alcohol abuse.
56Dr Zimmerman sensibly recommends that you continue to engage in psychological counselling to ‘address the deficits associated with your borderline personality disorder including mindfulness, distress tolerance, interpersonal effectiveness and emotional regulation'. She also recommends that you be referred for therapy, such as dialectical behavioural therapy or cognitive analytic therapy, specifically tailored for people with a borderline personality disorder.
Burden of imprisonment and risk of deportation
57Your time on remand, being your first experience of custody, was a difficult one, not only due to your limited English. Your time on remand ran parallel to significant restrictions, including periods in lockdown and limits on in person family visits, imposed to respond to the COVID-19 pandemic. Added to this, Dr Zimmerman says that this time would have weighed more heavily on you than a person without a diagnosed borderline personality disorder. In respect of your time on remand, Dr Zimmerman states:
His lack of a stable sense of self and sensitivity to perceived rejection by others – associated with this disorder – leaves him vulnerable to feeling mocked or belittled by other prisoners, as was the case when he was on remand, leaving him to isolate in his cell. I note that his lack of English heightened this experience. His intense, episodic fluctuations in mood – including anger – will leave him vulnerable to conflict in the custodial environment.
58I accept that your personality disorder made your time on remand more onerous than is likely to be experienced by others without this disorder and supports a conclusion that your condition may deteriorate if you were to return to custody. This is relevant in mitigation of the sentence I am to impose. I also accept that this time on remand was relevant in meeting the need for the sentence to specifically deter you from further offending.
59I also accept the submission made on your behalf that a sentence of 12 months or more would impact on the status of your visa under the Migration Act 1958 (Cth) and that the risk of deportation if a lengthier sentence were to be imposed is relevant to the sentence. This is particularly so given my finding that, with the supports now available to you in the community, you have good prospects of rehabilitation.
60In their sentencing submissions, both your counsel and Ms McGarvie, appearing for the prosecution, submitted that despite the objective gravity of your offending, your plea, youth, background and mental health disorders, lack of criminal history and good progress towards rehabilitation, mean that all sentencing considerations can be met by a combined sentence of imprisonment and a community correction order. Having regard to the various sentencing considerations to which I have referred, I agree with these submission.
61Clearly, with offending of this nature, community protection is a significant sentencing consideration. It cannot be forgotten that the lives of five people were placed at risk by your offending. I accept that the need for general deterrence, just punishment and denunciation – all moderated in your case – can be met by a combined sentence of imprisonment and a lengthy community correction order. The law recognises that a community correction order is a punitive order by its nature[6]. It also ensures your ongoing engagement in mental health services in the community is monitored and supported. The length of the order I have imposed is designed to maintain your support in the community over a considerable period, thereby fostering your prospects of rehabilitation and the community protection which will naturally follow.
[6]Boulton v The Queen [2014] VSCA 342
62Taking each of these matters into account and having regard to the maximum penalty for the offence of criminal damage with intent to endanger life (Charge 1) I sentence you to 320 days' imprisonment with conviction on Charge 1 to be followed by a community correction order of three years’ duration.
63You have been assessed and found suitable for such an order.
64It is a condition of the community correction order that you be assessed for and undertake mental health treatment as directed in addition to any other offence specific programs you are directed to undertake. I further order that, at least initially, your engagement and compliance with the conditions of the community correction order be subject to judicial monitoring before me.
65In addition to the conditions I have imposed there are standard conditions. First, and foremost you must not commit any other offences punishable by imprisonment during the three-year order. You must report within two working days of this sentence to the nearest community corrections office. You are required to advise your supervising corrections officer of any change in your residential address or where you work and you must do so within two clear working days. It is a term of all community correction orders that you must submit to visits as directed and you must obey all lawful instructions and directions of your corrections officer. You are not able to leave the State of Victoria without prior permission of your supervising corrections officer. You are to be supervised for the duration of the community correction order.
66Mr Wang, you should be aware that the order can be breached if you do not comply with it in terms of the conditions or if you re-offend while the community correction order is in place. If you do so, you will have to come back in front of me for breaching the order. I may have to resentence you on the charge and for a separate offence of breaching the order.
67Pursuant to s18 of the Sentencing Act 1991, I order that the time you served in custody, being 320 days be recognised as already served. As a result, you will not serve any additional time in custody under the sentence I have imposed but are now subject to the community correction order component of that sentence.
68The prosecution did not apply for restitution, and accordingly no order is made.
69Finally, pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, but been found guilty of the offence following a trial, the sentence I would otherwise have impose is a sentence of three years’ imprisonment, with a non-parole period of two years.
70I just propose to set a date for judicial monitoring before me, subject to the availability of counsel. I am proposing that judicial monitoring initially occur in mid-December, so I am looking at Tuesday 14 December at 9.15 am. Is that a suitable date?
71COUNSEL: Yes, Your Honour.
72MR BRENNAN: If I can just put one caveat on that, Your Honour. That will be subject to Mr Wang funding ongoing appearance at judicial monitorings which hopefully he will be able to.
73HER HONOUR: I will request that the community corrections officer provide an updated progress report no later than three working days prior to that date. The prosecution need not attend at the judicial monitoring hearing unless there is good reason to do so, but the OPP would be contacted through my chambers if that was the case.
74MS McGARVIE: As Your Honour pleases.
75HER HONOUR: Arrangements will need to be made, however, for Mr Wang to have an interpreter present for the judicial monitoring hearing. Through you,
Mr Brennan, can you confirm that Mr Wang consents to the community correction order being made?76MR BRENAN: Yes, Your Honour, Mr Wang consents to a CCO being made.
77HER HONOUR: All right. In the circumstances I will note on the order that he has consented to the order being made in the terms I have outlined.
78Do any other matters need to be addressed before adjourning?
79MS McGARVIE: No, Your Honour.
80MR BRENNAN: No, Your Honour.
81HER HONOUR: Can I particularly thank the interpreter. Madam Interpreter, thank you very much for your expertise and assistance, I have been grateful to you.
82INTERPRETER: Thank you, Your Honour.
83HER HONOUR: Mr Wang, you are now on a three-year community correction order. It is a condition of that community correction order that you be supervised, undergo ongoing mental health treatment, and engage in programs to address your offending behaviour. You will come back before me for what is called judicial monitoring on 14 December at 9.15 am. The community corrections office will provide me with a report that outlines your progression, how you are going under that order. You will be assisted by an interpreter that day.
84Do you have any questions, Mr Wang?
85OFFENDER: (Through Interpreter) No, Your Honour.
86HER HONOUR: Thank you. We will now adjourn court.
87MR BRENNAN: If Your Honour pleases.
88MS McGARVIE: As Your Honour pleases.
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