Director of Public Prosecutions v Zang

[2016] VCC 1400

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-16-01171

DIRECTOR OF PUBLIC PROSECUTIONS

v

LIWEN ZANG

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2016
DATE OF SENTENCE:	16 September 2016
CASE MAY BE CITED AS:	DPP v Zang
MEDIUM NEUTRAL CITATION:	[2016] VCC 1400

REASONS FOR SENTENCE
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Subject:  Criminal law

Catchwords:             Sentencing – intentionally causing injury – sentence of imprisonment imposed.          

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecution	Mr M. Regan	John Cain, Solicitor for Office Public Prosecutions
For the Accused	Mr P. Bloemen	Paul Vale Criminal Law

HER HONOUR:

1       Liwen Zang, you pleaded guilty before me to one charge of intentionally causing injury.  The charge is serious and that is evidenced by the maximum penalty that is prescribed by law and that is level 5 imprisonment, ten years maximum.

2       The offending relates to an incident that is described as “car park rage” that occurred at the Golden Leaf Chinese Restaurant car park in Burwood East on 9 April 2010.

3       On that day, the victim, Roger Chang, decided to have a celebratory lunch with his wife, Yim Wu.  At around 12.20 pm Mr Chang was prevented from driving into the carpark adjacent to the restaurant because his passage was blocked by your vehicle.  You were having a conversation with another male, Leon Li, who was on foot standing outside your vehicle.

4       Mr Chang was concerned that you appeared to be indifferent to his difficulties, so he tooted his car horn and on receiving no response, he tooted again.  He then raised his voice and called out, “Are you moving or not?”  Eventually you did move your vehicle into a car park and parked it, allowing Mr Chang to drive into the car park.

5       When he was attempting to walk towards the entrance of the restaurant with his wife, Mr Chang passed both you and Mr Li.  Neither Mr Chang nor his wife were known to you previously. 

6       Mr Li stared at Mr Chang and said, “What are you looking at?”  He then said words to the effect of, “What you say?  Why you swear at me?” 

7       Mr Chang then explained he was not swearing and all he wanted to do was for the car to be moved.  Li replied, “What’s your problem?” in a very aggressive manner.  At that point, you came over and an altercation commenced between Mr Chang and Mr Li, whereby Mr Li tapped or pushed Mr Chang on the shoulder three times, causing him to back away and say, “Hang on, hang on.”  Mr Chang then heard you say words to the effect that he would be beaten up.  Mr Chang then patted Mr Li on the back, saying, “Why would you want to do that?”  Mr Li then brushed Mr Chang away and swung a punch at him that missed.  You then started fighting and punched Mr Chang as well.  Mr Li began pushing Mr Chang back while at the same time Mr Chang was pushing you away.  Mr Chang found himself being pushed between parked cars to a point where he was near the driver’s door of your vehicle with Mr Li behind him and you to his front.

8       Ms Wu then heard you say to her husband, “I can make you dead, believe it or not.”  He then replied to you, words to the effect, “You dare do that, it’s a lawful society.”  You then said, “I can, believe it or not.”  You slapped Mr Chang to the face and pushed and shoved him.  You were kicking out at him and punching him and he was kicking back in retaliation. 

9       Mr Chang then saw you come at him and felt your right hand hit the left side of his stomach.  He experienced a sensation of feeling forced but was not immediately aware he had been stabbed to the abdomen.  You withdrew the knife which Mr Chang described as the blade of the knife about ten centimetres long with the blade being 15 millimetres from the top edge to the blade.  It looked like a kitchen knife, not a pocket knife.  Mr Li then stepped in to prevent you stabbing Mr Chang a second time and he told you, “That was enough.”

10      Mr Chang realised he had been stabbed and noticed you both walking away towards the restaurant, continuing to swear at him and call him a bastard.  Mr Chang noted that you still had the knife in your hand as you were walking away.  At that point, he then noticed blood coming out of his side.  A 000 call was made and police attended together with an ambulance.

11      Mr Chang was taken to The Alfred Hospital where he underwent gastroscopy and laparoscopy procedures following the detection of a perforation to his stomach and colon which was surgically repaired.  It was a single stab wound.

12      On 14 December 2010, Mr Chang picked you from a photo board, however, police could not locate you for an interview and at that time it was thought that you had left the jurisdiction. 

13      Twenty-four months later, there was a renewed police investigation.  You had come to police attention following a traffic accident that occurred  in Springbale on 2 January 2012.  Uniform branch members had taken your details, that were passed on to the investigating officers.  They were then able to establish telephone contact with the female acting as your intermediary but they were unable to determine your whereabouts at that time. 

14      A further 22 months later, you were located on Tuesday 15 November 2013, you were arrested and bailed.  You did not appear on the occasion you were bailed to.

15      It was not until another 29 months later, on Monday 25 April 2016, that the police were able to locate you and you were remanded.

16      Mr Zang, your original visa expired on 29 June 2007, you are therefore an illegal non-citizen and you are liable for immigration detention and deportation under s.189 of the Migration Act, Commonwealth.

17      Mr Bloemen, on your behalf, conceded that the offence was objectively serious.  He emphasised that it was situational, that is, it arose out of the circumstances that developed in response to your reaction to Mr Chang on that occasion whilst he was attempting to enter the car park and that there was no level of premeditation or planning.

18      Mr Zang, I consider that this is a serious example of this sort of offence.  Notwithstanding that I consider that it was opportunistic offending.  I reject the submission that you used a piece of sharp metal that you picked off the ground to poke the victim.  I am satisfied that you had the knife in your possession and that you used the knife to inflict the wound upon Mr Chang without there being any real provocation for your actions. 

19      

In sentencing you there is a real need for the court to denounce your behaviour and to emphasise both general and specific deterrence.  People are entitled to their freedom of movement in public places without the threat of harm.  

Mr Chang may have been a little impatient but his actions were reasonable and your response was out of all proportion to any perceived slight that you may have suffered and you must be punished accordingly.  

20      Mr Li has already been dealt with by the Court on the basis he was involved in the altercation but had no prior knowledge of the fact that you were carrying a knife or that you would use the knife.  He was, without conviction, fined $1000 in respect to one charge of common assault arising out of this incident.

21      By way of background, you were born in Shandong Province, China.  You are the youngest of three children.  You attended school in China to the equivalent of Grade 7 and then worked in various clothing shops and night clubs.  You married at age of twenty-seven and that marriage broke down quickly.  There is one child born to that relationship but you have no contact with your child or former wife.  You came to Australia on a business visa with the intention of working.  You have poor English skills.  You have mainly associated with other Chinese immigrants following your arrival.  In Australia, you worked as a plasterer doing mainly cash work. 

22      

There was some evidence before the court concerning your medical history.  

Dr Jing Yi Shu, general practitioner, saw you twice in April 2016.  You told the doctor that you had been feeling unwell for the past five years and that you were suffering poor sleep, feeling unsafe and worrying.  You were paranoid and suffering some hallucinations.  He diagnosed hallucination, cause unknown.  His impression was that you were suffering a form of mental illness with unknown reason and that you needed psychiatric assessment.  He referred you for specialist management, to Royal Melbourne Hospital but you could not follow up his advice because of being remanded.

23      

Dr N Zimmerman, forensic psychiatrist, prepared a report for the court dated

29 August 2016.  She assessed you at Port Phillip Prison with the aid of a Mandarin interpreter on 22 August 2016.  Her opinion is that you suffer from depression with a history of suicidal ideation and one suicide attempt. 

24      She considered, on the basis of the material, you suffered a brief reactive psychosis in April 2016 but he could not find any current symptoms of psychosis.  She believed you were depressed.  She did not consider that there was any other information about your mental health state at the time of the offending and nothing in the police account to suggest you were psychotic or depressed at that time.  According to the account you gave her, you acted out of fear of being attacked.  She did not believe that your mental health impacted on your behaviour at the time of the offending. 

25      In terms of your experience in custody, she considered you feel depressed, isolated and fearful in an environment where you cannot understand what is being said around you because of your lack of understanding of the English language and she recommends monitoring by the mental health services whilst you are in custody. 

26      She noted that you expressed a longing to return to your homeland to be with your parents. 

27      Mr Zang, in determining the appropriate sentence, I have taken into account all the matters put in mitigation.  I accept you entered an early plea just prior to committal hearing, that no witness was called to give evidence or be cross-examined.  Your matter settled once an appropriately framed indictment was settled.  I accept that the plea was entered at the earliest opportunity.  There is utilitarian benefit to your plea and you have indicated willingness to facilitate justice and your sentence will be discounted accordingly.

28      There has been considerable delay in this matter.  However, I consider that that delay has been primarily attributable to you making yourself scarce because of your fears of being deported.  Nonetheless, it is apparent that there does not appear to be any subsequent criminal offending and I have taken that into account and consider that you have good prospects of rehabilitation.

29      I accept, by reason of your current psychiatric status, that imprisonment is difficult for you and that it is more likely that you may suffer a deterioration in your mental health as a consequence of being in custody more so than others who are not suffering from such illness and I have taken that into account.

30      Further, you are culturally and linguistically disadvantaged because of your inability to speak and understand English. You have no real connections here in Australia and I accept that your experience is a very isolated and lonely one and that your time in imprisonment has been more onerous.

31      I do not consider that mental health has any role to play in this offending and I do not propose to moderate your sentence accordingly in accordance with limbs one to four of the Verdins principles.

32      Overall, having regard to the particular circumstances of the offending, I consider that a term of imprisonment to be immediately served is the most appropriate disposition.  I must impose just punishment.

33      The formal Court orders are in respect to the one charge of intentionally causing injury, you will be convicted and sentenced to 18 months' imprisonment and I fix a non-parole period of 12 months.

34      I declare that you have served 144 days pre-sentence detention and direct that that be entered into the records of the court and be deducted administratively from the sentence you are to serve.

35 I make the following declaration pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a term of imprisonment of three years, to serve three years.  I do not believe there is any ancillary orders?

36      MR BLOEMAN:  No, Your Honour - 464ZF?

37      MR REGAN:  Yes, sorry - - -

38      HER HONOUR:  A disposal?

39      MR REGAN:  A forensic sample order.

40      HER HONOUR:  A forensic sample order.

41      MR REGAN:  Yes, that is right, Your Honour.

42      HER HONOUR:  Have you got the orders?

43      MR REGAN:  I am not sure, I think they were going to be date modified.

44 HER HONOUR: I do not have those. Is there any opposition to the s.464ZF?

45      MR BLOEMAN:  No, there is not, Your Honour.

46      MR REGAN:  For some reason, the copies that are in court, Your Honour, are the non-custodial - - -

47      HER HONOUR:  All right.

48      MR REGAN:  May we have leave to email that to your associate?

49      HER HONOUR:  Yes, certainly.  Yes, all right.

50      MR REGAN:  But with the dates - yes.

51 HER HONOUR: All right. Finally, an application has been made for the taking of a forensic sample pursuant to s.464ZF of the Crimes Act (1958).  Having regard to the circumstances of your offending, I consider it is in the public interest that the order be made.  I note that it is not opposed.  An order will be made accordingly.

52      MR REGAN:  We have found three copies of the custodial form, Your Honour.

53      HER HONOUR:  Good.  All right, so Ms Ye, all you have to do now is to explain to Mr Zang, the only matter that needs to be explained is that an order has been made for the taking of a scaping from his mouth and what that involves is that the authorities will give him a cotton bud to put into his mouth and he rubs it against his cheek inside the mouth and  provided he cooperates, that is all that is involved.  But I have to advise him, if he does not cooperate, if he does not consent to the taking of the mouth scraping under supervision, well then police may use reasonable force to enable that procedure to be conducted.  Thank you. 

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