Director of Public Prosecutions v XA
[2024] ACTSC 292
•11 September 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v XA |
Citation: | [2024] ACTSC 292 |
Hearing Date: | 21 August 2024 |
Decision Date: | 11 September 2024 |
Before: | Christensen AJ |
Decision: | See [62] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – leave for ACT Human Rights Commissioner to intervene refused –aggravated burglary by joint commission – joint commission assault occasioning actual bodily harm – no prior criminal history – low risk of general reoffending – lack of remorse and insight – assessed not suitable for intensive corrections order – non-English speaker – reasonable adjustments to facilitate supervision and community service – suspended sentence imposed – good behaviour order – community service order |
Legislation Cited: | Crimes Act 1900 (ACT) s 24 |
Cases Cited: | DPP v Makoi (No 3) [2023] ACTSC 337 |
Parties: | Director of Public Prosecutions ( Crown) XA ( Offender) |
Representation: | Counsel E West ( Crown) G Le Couteur ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ( Offender) | |
File Number: | SCC 245 of 2023 |
CHRISTENSEN AJ:
Introduction
1․Mr XA is to be sentenced in relation to three offences involving the entry to a home of persons unknown to him, and an assault on the two occupants of the home.
2․Mr XA is charged with an offence of aggravated burglary by joint commission, contrary to s 312(a) of the Criminal Code 2002 (ACT), carrying a maximum penalty of 20 years imprisonment, a fine of 2000 penalty units, or both, and two offences of joint commission assault occasioning actual bodily harm contrary to s 24(1) of the Crimes Act 1900 (ACT), carrying a maximum penalty of five years imprisonment.
The offending
3․On 25 June 2023 at about 7pm, Mr XA attended at the apartment of the victims, Ms Li and Mr Jun, in Belconnen. The victims are a married couple who were residing together at that apartment. They rent out a second bedroom of the apartment.
4․Ms Li heard knocking at the apartment’s front door, and she answered. Mr Jun was in his bedroom at the time. Standing outside the door was Mr XA, and a co-accused, Xiantao Shang (the co-accused). Ms Li did not know either of them. She was confused, but assumed that they were potential tenants for the bedroom. Ms Li let them into the apartment.
5․Ms Li spoke to them in Mandarin, and she asked, “[w]ho are you looking for?” They replied, “[w]e are looking for someone”, and gave Ms Li the name of a person that she did not know. Ms Li asked them both to leave, but they refused to do so.
6․Ms Li called out to Mr Jun, who came out of the bedroom. Mr Jun asked in Mandarin, “[w]ho are you looking for? Do you know me or my wife?” and then shouted in Mandarin, “I’m gonna call police”.
7․The co-accused tried to grab Mr Jun’s mobile phone and a struggle ensued. During this struggle, Mr Jun swung his first towards the offenders. Both offenders started hitting Mr Jun. Ms Li said in Mandarin, “[w]hy are you hurting my husband?” or, “[w]hy are you hitting my husband?”
8․One of the offenders put their arms around Mr Jun, while the other hit Mr Jun’s face, eyes, and nose, causing his vision to become blurry. Mr Jun was knocked to the ground, and the offenders kicked him in the head and back. Mr Jun’s right eyelid swelled up.
9․The offenders also hit and kicked Ms Li. Ms Li was punched multiple times in the face, eyes, and nose. She came to be on the ground. The co-accused kicked Ms Li in the back, shoulder, and back of the head. Mr XA, who was not responsible for any kicking, is described as having hit Ms Li harder than the co-accused. Ms Li’s face became red and bruised, and she felt dizzy. Mr Jun was calling out in Mandarin, “[s]top kicking my wife. Do not hit my wife”.
10․Mr Jun called 000 twice. During the second call, Mr Jun can be heard yelling in Mandarin, “[t]his is my home! Don’t hurt my wife, don’t hurt my wife! I don’t know you, I let you slap me a few times. …”
11․One of the offenders said in Mandarin that, “[w]hen we came, you did not how [sic] to talk nicely” and Mr Jun responded in Mandarin, “[h]e/she is gone. Already gone. … He/she was just here for a couple of days … We did not know that person”. Ms Li said in Mandarin, “[w]e don’t know that person. We don’t know what was happening between you and that person”.
12․Police arrived at the apartment at 7:15pm and Mr Jun opened the door. Police found Mr Jun to be sitting next to the front door, and Ms Li standing in the hallway. The offenders were standing next to Ms Li, and then moved into the loungeroom at the request of police.
13․The co-accused told police that he and Mr XA are friends and that he came to the apartment to “find the girl. … she takes too much money and it’s gone. …” He said that another of his friends said “the girl” lived at this apartment, that she had taken Mr Shang’s money, and had taken the money of his friend who told him where she lived, as well as the money of other people. Mr Shang made swiping motions with his fists, telling police that Mr Jun had swung first.
14․Mr Shang was arrested. When asked as to whether he had recorded anything on his phone while he was inside the apartment, he said that he did. His phone was seized but any contents of this were not provided in the sentence hearing.
15․Mr Shang’s wife, who had been waiting outside the apartment building, came up to the apartment and police spoke with her. She said that there was a female who had lied to many people that she calls friends and that she borrows money and then runs away. Mr Shang’s wife said that the female had run away, out of Canberra, and was not initially replying to messages. After many texts were sent, the female responded that she would return his money when she came out from jail. Mr Shang’s wife told police that she did not know Mr XA.
16․Mr XA was asked by the police, “[w]hy is there blood on your hands?” and he said that he did not speak English. Mr XA was arrested. It is relevant to note that the sentence proceeding occurred with the benefit of an interpreter for Mr XA.
17․ACT Ambulance service paramedics attended at the apartment to assess Mr Jun and Ms Li. Mr Jun was conveyed to hospital by ambulance and received a diagnosis inclusive of having mildly displaced acute fractures in the nasal bones and “significant periorbital soft tissue swelling … extending to the right cheek”.
18․The entry to the home did not involve violence or threats, but it did involve a level of deception that breached the trust given to them by the occupant of the home. There must have also been a level of planning in the decision to attend at this home.
19․There was no aggravating feature of a weapon or implement used in the offending, and the injuries that were caused, while no doubt of understandable concern to the victims, are not the most serious examples of bodily harm. There were two offenders who entered the home, accounting for the burglary being an aggravated form of the offence. The intention in remaining in the apartment was, as particularised, with an intent to cause or threaten harm, which was realised soon after the entry.
20․It was the co-accused who initiated the physical altercation, with his action in trying to grab the victim’s phone. That conduct in and of itself was serious, plainly directed towards attempting to prevent the victim seeking assistance. Beyond this, there is little to distinguish the conduct of the offenders in the acts of assault.
21․Mr XA almost immediately joined in the physical altercation, which involved a sustained and vicious assault initially on Mr Jun, and then on Ms Li. It was an entirely unprovoked assault on both victims, committed in their own home. Both victims experienced a form of restraint, or at least the vulnerability of being on the ground, for periods during the assault. Both victims sought repeatedly that the offenders stop the assaults. Mr XA had ample opportunity to desist from the conduct and depart.
22․He did not do so, and each victim was assaulted by both offenders, and each victim was assaulted to a vulnerable part of the body, being the head, with multiple applications of force. The applications of force extended to kicking Mr Jun to both his head and back while he was on the ground. Ms Li was also assaulted while on the ground, and, while it was the co-accused who kicked Ms Li at that stage, Mr XA is described as having hit the victim with more force.
23․The motivation for the offending by Mr XA is not entirely clear. Seemingly either himself, or the person he was with, or both of them, were intent on finding a person they thought was an occupant of the apartment. When this person was not at the apartment, there was a resort to violence, either out of anger for her not being present and/or frustration that was inflicted on the victims from an erroneous perception that they were withholding information. Despite being told the victims were not the person they were looking for, they continued in their conduct.
24․It is not clear on the facts the identity of the female who apparently owed money, or indeed whether there was a female who owed money, and was uncontactable, or that had been in jail. In any event, the agreed facts provide that the court is to sentence on the basis Mr XA was not owed money or otherwise involved with the unidentified female or associated people.
25․The co-accused has pleaded not guilty, and his trial is yet to be reached.
Victim impact
26․The photographs clearly show the extent of bruising, swelling and abrasions that were caused to the face of each victim. Mr Jun appears to have sustained moderately more serious injuries than Ms Li. In addition to the physical injuries that each victim sustained, which would have caused discomfort for a not insignificant period, the victims will have experienced the emotional distress and likely ongoing psychological impacts from the offending. They were made to feel unsafe in their own home. They experienced not only the assault on themselves, but the fear of observing an assault on their spouse.
27․The photographs also show that there were blood marks and stains on surfaces and items in the home, demonstrating not only the nature of the assaults, but being a visible reminder to the victims of their experience. Further, there will have been inconvenience, and potentially financial costs, in the cleaning required.
Subjective circumstances
28․Mr XA is 45 years of age and was 44 years of age at the time of the offending. He was born and raised in a suburban area of a city in China where he had a positive upbringing. He had a positive relationship with his father, before his father passed away when Mr XA was 19 years of age. He maintains a close relationship with his mother who lives in China. He speaks often with his older sister who also lives in China.
29․Mr XA first came to Australia in 2017 and has lived here since. He initially travelled here with his wife, but she has since returned to China with their two young children. He has frequent contact with their children by phone.
30․He has no criminal history in Australia and reports having no criminal history in other countries.
31․Mr XA completed high school in China. He is currently in Australia on a bridging visa as a political refugee. He has been consistently employed since he moved to Australia. He currently works for a plaster-boarding company. He is described as a hard worker with good knowledge and skills.
32․His social circle is mainly work colleagues, and he spends time with them socialising, and sometimes goes fishing and for walks. He does not engage in illicit substance use, and is not currently drinking alcohol.
33․Mr XA lives at an address in Canberra with three housemates.
34․Mr XA was assessed for an intensive correction order (ICO). The assessment report, dated 8 August 2024, finds that Mr XA is not suitable for such an order for the following reasons [extracted from the report]:
Living circumstances of the offender: This Service was not satisfied that each of the
co-residents had a sufficient understanding of the information provided and consent documents were not completed to an accepted standard.Personal circumstances: The significant language barrier is likely to contribute towards ineffective supervision and an inability for Mr XA to comply with the required levels of contact
35․No other indicators of unsuitability for an ICO are present: s 46D Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
36․The representative on behalf of Mr XA gave notice that a question arises in the proceeding involving the application of the Human Rights Act 2004 (ACT): s 34 of the Act. This was with reference to the findings of the ICO assessment report, and evidence given at the sentence hearing by Community Corrections Officer Ms Erin Harris, the assessor and report writer. The ACT Human Rights Commissioner sought leave to intervene in the proceeding.
37․I determined not to grant the leave sought because, for the reasons and orders that follow, the question does not arise in the proceeding as an intensive correction order is not the appropriate order to be made for Mr XA.
Plea of guilty and remorse
38․Mr XA pleaded guilty in the Supreme Court at a pre-listed arraignment on 17 March 2024, following a level of agreement reached at the Criminal Case Conference. A trial had already been listed to commence on 2 September 2024. I am satisfied that the plea of guilty remains of significant utilitarian value such that a reduction up to 20 per cent is appropriate.
39․For the purposes of the ICO assessment, Mr XA was asked as to his attitude to the offences. He disagreed with the Statement of Facts. He said that the male victim initiated the violence by attacking his friend. He claimed that the female victim took a knife from the kitchen and tried to assault his friend, and his friend tried to get the knife out of her hand.
40․Mr XA advised that he and the co-accused were looking for a woman who had stolen $25,000 from him. He advised the victims lied when they said they did not know her, and he and the co-offender believed she was in the apartment when they arrived, which is the reason they entered the apartment.
41․The ICO assessment describes Mr XA as displaying limited insight into his offending behaviour. He is reported as not acknowledging the impact of his offending behaviour on the victims.
42․During the sentence hearing, it was confirmed that Mr XA maintained his plea of guilty to the offending, and the parties agreed that Mr XA was to be sentenced on a basis that, in accordance with the agreed facts, he did not know the female who was said to have taken the money.
43․Mr XA’s reported attitude towards the offences does not demonstrate any remorse or insight into the offending. Rather, it demonstrates a concerning lack of remorse and insight.
Presentence custody
44․Mr XA was released from custody the day following his arrest, on 26 June 2023. I take this into account as Mr XA having experienced a level of deterrence from the experience of custody, and his engagement with the police and the courts.
Consideration
45․I am satisfied in relation to each of the offences that, having considered possible alternatives, no other penalty other than imprisonment is appropriate. This was conceded on behalf of Mr XA.
46․The primary issue in this matter is how that sentence is to be served. The prosecution did not make a submission that fulltime imprisonment was warranted, submitting that it would be open to the court to order an ICO, if it was deemed appropriate to depart from the assessment report recommendation, and that it was otherwise a matter for the court as to how the imprisonment is to be served. It was recognised by the prosecution that given the absence of a criminal history, rehabilitation is an important sentencing consideration and leniency can be afforded.
47․The prosecution provided the court with authorities said to be of some comparative value: R v Hanrahan [2020] ACTSC 10; R v Hagen [2022] ACTSC 274; R v Hagen [2022] ACTSC 362; 374 FLR 260; R v Knight [2021] ACTSC 165; DPP v Makoi (No 3) [2023] ACTSC 337. Similarly, on behalf of Mr XA, authorities said to be of some comparative value were provided: DPP v Stasinos [2023] ACTSC 179; R v Crick [2021] ACTSC 106; R v CN; R v SN; R v Rix [2019] ACTSC 293; R v Schrattenholz [2017] ACTSC 247; R v Ruby Schrattenholz [2017] ACTSC 416. These authorities provide that sentences for offending of this type have included sentences of imprisonment ordered to be suspended, served by way of an ICO, or involved a period of fulltime imprisonment.
48․As indicated, Mr XA has sought that the sentence to be imposed be served in the community by way of an ICO: s 11 Sentencing Act. There is a difficulty with doing so.
49․That is, it is difficult to understand the intensive correction that Mr XA requires. The offending here was serious. But it was committed in June 2023 and there has been not only no offending since, but Mr XA has no record of having offended prior to this conduct.
50․It appears to be an isolated occasion of very poor misjudgement that regrettably resulted in significant harm to two innocent people. Mr XA is described in the ICO assessment report as having several protective factors including stable employment and finances, positive relationships with family and friends, no history of substance use, and stable mental health. Mr XA has been assessed as a low risk of general re-offending.
51․Mr XA clearly has strong prospects of rehabilitation and of not further offending in this manner. The only factor that causes pause as to this is the lack of remorse and insight into the seriousness of the offending behaviour. The report finds that he lacks awareness of the negative impact of his actions on the victims, and he displayed limited insight into the unlawfulness of his behaviour.
52․Plainly in those circumstances, an order that emphasises sentencing purposes of deterrence, denunciation, and accountability is warranted. The harm caused to the victims must also be recognised. In this matter, this is achieved by way of the imposition of terms of imprisonment.
53․These sentencing purposes are also met through the suspension of that term of imprisonment for a lengthy period, providing a deterrent effect to Mr XA. Such an order will incorporate a requirement to be of good behaviour and, I consider it appropriate to include a community service condition. This will emphasise to Mr XA that there are consequences for his offending conduct.
54․In making such an order, there are two matters to be considered.
55․Firstly, s 89 of the Sentencing Act requires that the court must not include a community service condition in the good behaviour order “unless a pre-sentence report is given to the court about the offender’s suitability to serve a sentence (or part of a sentence) by performing community service work”.
56․Here, the report provided to the court was one described as an “intensive correction order assessment report”, rather than a “pre-sentence report”. Nonetheless,
pre-sentence report is defined in the Sentencing Act to mean a report that is (a) for use in a criminal proceeding; and (b) prepared by the director general. The form of report provided here meets that definition and, accordingly, the requisite information was available for the court to consider suitability per s 89 of the Sentencing Act.57․Secondly, I recognise that the finding of the pre-sentence report was that Mr XA was not suitable for such an order “specifically due to the potential impracticability of engaging in work while unable to understand or speak English”. In evidence, Ms Harris explained that:
… the general community service work is what we call work crew and that is generally outdoor work, things like gardening, painting over graffiti, sometimes preparing for events at like the showgrounds, and it usually has one supervisor and then the group of clients, which can be one client up to like eight clients, depending on the day and how many people attend, and that would not be practical for Mr [XA] to do via interpreter, and it could be unsafe because of the context of the work being physical work.
58․However, the evidence of Ms Harris included that she was of the belief that Community Corrections have funding available for an interpreter service as required. Further, that in facilitating supervision for people sentenced to community based orders, reasonable adjustments to accommodate a language barrier are part of the role.
59․The nature of Mr XA’s employment, and his apparent ability and willingness to undertake physical work safely, has been informative in the decision that a community service order is appropriate, despite the findings of the pre-sentence report. It was submitted on his behalf that he currently works with an Australian company that includes a group of people who speak both Mandarin and English. He is able to use an application on his phone to communicate as necessary.
60․I recognise that Mr XA is currently employed fulltime, and that it would be ultimately detrimental to his rehabilitation if a community service order disrupted his capability to be employed. Accordingly, the period of hours of community service will be moderated.
61․Otherwise, I observe that in determining the appropriate sentence, the totality principle is relevant. As the prosecution submitted, it is appropriate that there be some concurrency between the sentences as they occurred as a course of conduct. However, a sentence that reflects the marginally more serious assault and injuries caused to Mr Jun, as well as one that reflects the harm and impact caused to the two distinct victims, is warranted.
Orders
62․The orders of the court are as follows:
(1)XA be convicted of aggravated burglary (CAN 6526/2023), and he be sentenced to 12 months imprisonment, reduced from 15 months on account of the plea of guilty, to commence on 11 September 2024 and end on 10 September 2025.
(2)XA be convicted of assault occasioning actual bodily harm (CAN 6524/2023) and he be sentenced to 8 months imprisonment, reduced from 10 months on account of the plea of guilty, to commence on 11 March 2025 and end on 10 November 2025.
(3)XA be convicted of assault occasioning actual bodily harm (CAN 6525/2023) and he be sentenced to 10 months imprisonment, reduced from 12 months on account of the plea of guilty, to commence on 11 September 2025 and end on 10 July 2026.
(4)The sentence of 1 year and 10 months is suspended from today, 11 September 2024 to 10 July 2026.
(5)XA is required to sign an undertaking to comply with the offender’s good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from 11 September 2024 for a period of 2 years until 10 September 2026 with the additional condition that he perform 100 hours of community service within 12 months.
| I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen. Associate: Date: 7 July 2025 |
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