Director of Public Prosecutions v Wu

[2014] VCC 2235

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01597

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON WU

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 December 2014
CASE MAY BE CITED AS:	DPP v Wu
MEDIUM NEUTRAL CITATION:	[2014] VCC   2235

REASONS FOR SENTENCE
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Subject:
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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Bourbon
For the Accused	Mr J. Fitzgerald

HER HONOUR: 

1Jason Ding Guan Wu, you have pleaded guilty to one charge of criminal damage, Charge 1, one charge of aggravated burglary, Charge 2, and two charges of common law assault, being Charges 3 and 4.  The maximum penalty for criminal damage is ten years' imprisonment.  The maximum penalty for aggravated burglary is 25 years' imprisonment.  The maximum penalty for common law assault is five years' imprisonment.

2The prosecution sought an order for the taking of a forensic sample from you.  The making of that order was not opposed.  The prosecution also sought an order for disposal and forfeiture of a knife.  The making of that order was not opposed.

3The circumstances of your offending are set out in detail in the Summary of Prosecution Opening, which was tendered as Exhibit A.  In brief, the circumstances are as follows.

4In respect of Charge 1, this incident occurred on 6 June 2014.  On that day at about 6 pm, you went to the home of your former girlfriend and her parents.  You had been asked to leave there two weeks earlier because of concerns about how you were treating your girlfriend.  That evening, you had called your former girlfriend on the phone about six times.  She did not answer you.  You went around to the house. You parked your car in the driveway and yelled at your girlfriend to come out.  Her father came out of the house.  You yelled at your girlfriend to tell her father to go inside.

5Your girlfriend then came out.  She saw you get out of your car with a knife in your hand.  She went back into the house and yelled that she would not speak to you unless you put the knife down.  You later told police you had two knives and put them back in the car.  Your former girlfriend would not come out of the house again.  You got in your car and drove it into the garage door of the house.  You caused extensive damage to the door to a cost of about $5,000.  The cars in the garage were scratched.

6The second incident, which gives rise to Charges 2, 3 and 4 occurred on 15 June 2014.  You had been living in a house with a married couple for about ten days earlier that month.  The married couple are the victims of these offences.  You were asked to leave and moved out on 10 June 2014.  It was agreed that there would be a refund for rent paid in advance by your mother.

7On 15 June 2014, you rang the female victim and said that you wanted to discuss the money.  It is agreed that at that stage $90 was owing to you.  You began yelling at the female victim.  She called the male victim who spoke to you and ended the call.  Very shortly after that, you came around to the house and rang the doorbell chime continuously.  The couple did not answer.  The male saw your car in the drive and went to check the that backdoor was locked.  He returned to the back room and saw you in the house.  That is the circumstances of Charge 2 of aggravated burglary.

8You were angry.  You said you wanted money.  The male said that he would speak to his wife.  You suddenly grabbed him by the throat, which you tightly squeezed. You pushed him against the wall.  You produced a knife and held that up against the man's throat.  That is the subject matter of Charge 3 of common law assault.

9Again, you said you wanted the money.  The male victim said he would get the money.  The female victim was present and saw your knife and what you were doing to her husband.  She was in fear for her safety.  That is the subject matter of Charge 4 of common law assault.

10The male went to the bedroom.  He heard you yelling at his wife.  He got $50 and gave it to you and you left.

11The police arrested you later that afternoon.  They found a red flick Stanley knife in your car.  You were interviewed.  You made admissions.  In respect of Charge 1, you said you were "Off your face."  You said you ran into the door because your former girlfriend would not speak to you.  You said you knew the cars were usually there.

12In respect of the second incident, you said you went to get the balance of rent back.  You admitted that you had a knife with you.  You said you were not going to stab anyone.  You said you held the knife up while you grabbed the man.  You said you grabbed him by the throat.

13This matter was resolved at a committal case conference and the committal proceeded by way of a straight hand up brief.  It is accepted that your plea of guilty was entered at the first available opportunity.

14Victim impact statements were tendered from your former girlfriend and her father, and from each of the couple who were the victims of the aggravated burglary and common law assaults.  Your former girlfriend describes how angry, sad and scared she was.  She said she was scared to live at home for a while and moved out.  She said she is still afraid that she will run into you.  Her father describes the damage to the door and the cars, and his concern for his family's safety.

15In respect of the couple, it appears that the wife is the one who has been most affected by this incident.  She says that she is scared and remains fearful.  She says that the couple decided to move house.  She says she still gets nightmares and is extremely dependent on her husband.  Her husband describes his concern about his wife and her state of mind.

16In sentencing you, I have taken into account your personal circumstances.  You are now 28.  You were 27 at the time of the offences.  You were born in Taiwan of Vietnamese parents.  Your parents separated when you were four and in 1992 you came to Australia with your mother.  You did not get on with your mother's various partners.  Your relationship with your mother deteriorated.

17You left home at 15 and lived with friends, obtaining your own accommodation at 16.  You have had some contact with your father before his death in 2013.  You left school during Year 11.  More recently, you have tried to resume education but without success.  You have had only short periods of employment.

18From the age of 15, you were using cannabis and heroin.  The cannabis use remains a problem.  You were drug free for a period, but when you broke up with your former girlfriend, you relapsed into drug use and began using Ice on a regular basis.  I accept that at the time of the offending you were relatively socially isolated.

19You have admitted a prior criminal history.  You say that criminal history is essentially drug related and the types of offending are consistent with that.  I do not accept your counsel's submission that your criminal history is limited and has only a small degree of relevance.  I accept that your criminal history is limited but I consider that it is relevant to this sentencing process.

20On 17 February 2012, you were sentenced in respect of offending which included recklessly causing injury, trespass and criminal damage.  You were placed on a community correction order.  That order was breached and varied.  The work hours were deleted and the order was extended.

21On 25 February 2011, you had previously been in court in respect of dishonesty offences.  Without conviction, you were placed on a 12 month community based order.  That order was also breached, it was varied and then breached again, and subsequently, you were fined in respect of that offending.

22Your counsel submitted that the appropriate sentence would be a sentence of imprisonment combined with a community correction order.  Your counsel relied on a number of matters during the plea.  In particular, a) your co-operation with the police and making of full admissions; b) your plea of guilty; c) your remorse and insight; d) your relative lack of relevant prior criminal history; e) your age; f) your mental health issues; g) your social isolation; h) your reasonable prospects of rehabilitation; i) your background generally; j) all limbs of all Verdins principles, and; k) matters generally in the report of Ms Carla Lechner, psychologist.

23Considerable reliance was placed during the plea on the report of Ms Lechner, dated 5 November 2014.  Ms Lechner describes your history of polysubstance abuse.  She says at the time she assessed you, you were on a Suboxone Program to deal with your opiate dependence.  You were also on antidepressants.  You had been using Ice at the time of the offences.  Ms Lechner says that at the time she assessed you, you were showing symptoms of major depression, with a score in the extreme range on testing.  She said you exhibited a high level of anxiety, which was possibly a by-product of Ice use.  Ms Lechner recommends that you receive psychiatric and psychological treatment.

24Ms Lechner in her report says, "Mr Wu expresses regret and shame for his actions.  He also expresses appropriate victim empathy.  He was depressed in mood and drug affected primarily with Ice at the time of these matters.  This no doubt adversely affecting his judgment, decision making and reasoning skills as well as his capacity for impulse inhibition.  Research indicates that Ice has a detrimental effect on executive functioning."

25Ms Lechner is of the opinion that you are not likely to cope well with a prison environment.  She says she would expect a further deterioration in your mood state and an increased risk of suicide.

26The prosecutor in sentencing submissions, accepted that the fifth and sixth Verdins principles relating to the impact of imprisonment on you would have application.  The prosecutor took issue with the application of the remaining Verdins principles.  The prosecutor addressed issues of concurrency and cumulation and the circumstances of your offending.  He also referred to the impact on the victims.  The prosecutor agreed that your offending was situational and that your rehabilitation would be inextricably linked to you receiving treatment for your drug and mental health issues.

27Mr Wu, you have engaged in serious offending.  Aggravated burglary is a particularly serious offence.  The maximum reflects the seriousness with which parliament, on behalf of the community, takes this kind of offending.  The Court of Appeal in Hogarth v The Queen[1] and subsequent cases has made very strong statements as to the seriousness of confrontational aggravated burglary.  Here, there are differences in circumstances from the situation in Hogarth, but in my view, this case clearly falls within the description of a confrontational aggravated burglary as described in Hogarth.

[1] (2012) 37 VR 658

28The Court of Appeal in the recent case of DPP v Myers[2] sets out factors which the Court of Appeal says would ordinarily be relevant to the assessment of the gravity of this type of offending.  I am of the view that various of those factors do apply in this case.  You went into the house armed to get money, which you considered you were owed after being rebuffed in earlier phone calls.  You did not forcibly enter the house but walked into the couple's home.  You did so, prepared to use at least some threat of physical harm to get money.  You knew the couple were at home.

[2] [2014] VSCA 314, 48

29It is clear from the couple's behaviour after the phone calls and before you were in the house that they were frightened of you.  Once you were in the house, you did confront the husband and physically assaulted him.  You held up a vicious looking knife.  The wife was clearly put in fear.  You were given the $50.

30It appears from the victim impact statements that the husband had a reasonably robust response to this incident, but his wife clearly is suffering from continuing negative impact.

31This must have been an extremely frightening incident, in their home where they are entitled to feel safe.  It is very concerning that you engaged in Ice use and this offending, very shortly after the previous episode, which is the subject matter of Charge 1.

32Your offending, which is the subject of Charge 1 of criminal damage, is less serious than the charge of aggravated burglary, but is still significant.  You went to the house to have some sort of discussion with a woman with whom you had had an intimate personal relationship.  When she, very understandably, retreated to the house, you impulsively and destructively drove into the garage door.  Fortunately, you only damaged property, but this must have also been very frightening behaviour for those in the house.

33It appears from the victim impact statements that the victims were very scared by this incident, in addition to having their property harmed.  I regard this as an example of violence within the context of intimate personal relationship.  It is very important that courts discourage this type of behaviour.  Your behaviour on these two occasions must be strongly denounced and appropriately punished.

34General deterrence must be given significant emphasis in sentencing you, with the hope that others will be deterred from acting on their impulses in a similar fashion.

35I note your remorse and increased insight, but I consider that specific deterrence will be given significant weight in sentencing you given you past offending and problems with substance abuse.  You are still relatively young and no doubt would benefit from treatment for your mental health and drug issues.  Such treatment would enhance your prospects of rehabilitation, but at present I consider your prospects of rehabilitation to be moderate.

36In my view, there is some need to community protection some weight in sentencing you.  Again the community needs to be protected from any future offending by you where you target people with whom you have had some connection and with whom you have had some grievance.  A sentence of imprisonment is clearly warranted for the sentencing purposes to which I have referred in the light of the seriousness of the offending. 

37On the basis of Ms Lechner's report, I accept that you have a history of depression and drug use as self-medication.  I consider this results in some small reduction in moral culpability and limited moderation of the application of general deterrence and specific deterrence in application of Verdins principles one, three and four.  I also accept that you are likely to find imprisonment more difficult and it is likely that to some degree you will suffer a negative impact on your mental health with imprisonment.  I have taken these factors into account in application of Verdins principles two, five and six.

38You are entitled to a significant discount for your plea of guilty which was made at the earliest opportunity.  That plea has had considerable utilitarian benefit in saving the trauma and expense of a trial.  I accept that your plea of guilty is a demonstration of your remorse, given what you have said to Ms Lechner.  It is also to your credit that you co-operated with police and made full admissions.

39I have applied the principles of totality and proportionality in arriving at the amount of cumulation or concurrency between sentences.  I have been conscious of the need to avoid double punishment, and there is limited cumulation in respect of the common law assault charges.  This is to reflect the additional offending, but also to reflect that that is part of the same incident as the aggravated burglary.

40I will be ordering some cumulation in respect of the criminal damage charge to reflect the separate harm and separate victims.  I do not consider that a sentence of imprisonment followed by a community corrections order would adequately reflect the seriousness of this offending.  I have taken into account your relative youth, your mental health issues and your potential for rehabilitation when fixing the non-parole period.

41On Charge 1 of criminal damage, you are convicted and sentenced to 12 months' imprisonment.  On Charge 2 of aggravated burglary, you are convicted and sentenced to 42 months' imprisonment.  On Charge 3 of common law assault, you are convicted and sentenced to 12 months' imprisonment.  On Charge 4 of common law assault, you are convicted and sentenced to eight months' imprisonment.  The sentence on Charge 2 is the base sentence.  Five months of the sentence on Charge 1, three months of the sentence on Charge 3 and Charge 4 are to be served cumulatively on each other and on the sentence on Charge 2.  The total effective sentence is 52 months or four years and four months.  I fix 32 months as the period you are required to serve before being eligible for release on parole, 32 months amounts to two years and eight months.

42I declare that you have served 72 days of this sentence by way of pre-sentence detention to be deducted administratively. 

43But for your plea of guilty, I would have sentenced you to a term of imprisonment of six years with a non-parole period of four years. 

44I am making the order for the taking of a forensic sample from you.  I make that order because of the seriousness of the circumstances of the offending and because the making of the order is not opposed.

45Mr Wu, I am required to tell you that if at the time the authorities request you to co-operate with the taking of a buccal swab from you, if at that time you do not co-operate with them, then they are entitled to use reasonable force and to take a blood sample.  I am sure that you will co-operate with the, when they come to take the sample from you.

46I have also made the order for disposal of the knife, which was sought.

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