Director of Public Prosecutions v Zhang

[2015] VCC 1243

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

AT MELBOURNE
CRIMINAL JURISDICTION  CR -15-01081

DIRECTOR OF PUBLIC PROSECUTIONS

V

FENGXUE ZHANG

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	4 September 2015
DATE OF SENTENCE:	4 September 2015
CASE MAY BE CITED AS:	DPP v Zhang
MEDIUM NEUTRAL CITATION:	[2015] VCC 1243

REASONS FOR SENTENCE

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Subject: Criminal law - sentence            

Catchwords:   Pleas of guilty to single charges of indecent assault, false imprisonment and common assault – Indecent assault committed against 11 year old – three children required counselling, relocation of home and school – Offender  Chinese national – no English -  Prosecution agreed time served of 216 days adequate – no priors – low risk of re-offending -immediate deportation.

Sentence:  6 months imprisonment.

Note: Pseudonyms used to protect the identity of the complainants.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Piggott	OPP
For the Offender	Ms D. McCann	VLA

HER HONOUR: 

1Mr Zhang, you have pleaded guilty to one charge of indecent assault, one charge of false imprisonment and one charge of common assault. 

2These offences occurred on 31 January 2015 in a park in Bundoora.  You were in the park at about 6.30 pm at the same time as three sisters; Molly[1], Paige[2] and Amber[3] Brown[4], aged 11, 9 and 6 respectively.  The children's mother, Rebecca[5] Brown, was about to join them in the park with their baby brother. 

[1] pseudonym

[2] pseudonym

[3] pseudonym

[4] pseudonym

[5] pseudonym

3The family lived very close to the park, only 30 metres away, and the children had been allowed to go there ahead of their mother.  Before she arrived you approached the swings where the children were playing, you picked up Amber who had been on a swing and put her on your lap.  She resisted and told you to go away and pushed you, whereupon you put her down and let her go.  You then approached Molly from behind and lifted her up, you carried her a short distance to an area of bushes near the swings.  She tried to run away but you caught her, grabbing hold of her arms.  She tried to get away running backwards but you pulled her arms and she was hurt trying to resist.  You pulled her back into the bushes, stood behind her and wrapped your arms around her, you then placed your hand under her clothing, onto her vagina on top of her underpants.  The other girls ran to help Molly and told you to stop.  They tried to pull your hand away from Molly's pants and kicked you.

4At this time your next door neighbour, Ms Kinney[6], arrived in the park with her daughter.  She saw Molly, whom she knew, running towards her.  She also saw you in the background.  Molly told her what had happened and you approached Ms Kinney to speak to her but as you do not speak English you were unable to communicate with her.  You then sat underneath a tree.

[6] pseudonym

5Around the same time Ms Brown's partner, Raymond Chivers[7], arrived home and seeing the children in the park he told them their mother would not be long.  Molly told him what you had done and Mr Chivers went to the house to tell the children's mother and then rang the police.  He and their mother then joined the children and Ms Kinney in the park.  Molly pointed you out to her mother telling her what you had done.  When her mother asked her if she was okay she started to cry. 

[7] pseudonym

6Ms Brown confronted you, as did Mr Chivers, and the police arrived.  You were arrested and later charged and remained in custody without applying for bail on the basis that your only available accommodation was with your son in the vicinity of the park and the children's home.

7All the children had to make video recorded statements to the police and Molly had to do so twice, as the first recording was defective.  They and their mother have each provided Victim Impact Statements and Ms Brown describes the impact on the family with the need for counselling and relocation away from the vicinity of the park.  The children describe their sadness because of what happened, their fear of parks and the need to move house and change schools.

8Your personal circumstances are that you are aged 57, a Chinese national, and you came to Australia in December last year to visit your son and daughter-in-law and your infant grandson.  You have never been here before and you speak little or no English.  Your visa has been cancelled and I am informed that once you are released from custody you will be placed in a detention centre before being deported.

9You have spent 216 days, just over six months, in custody, held in protection and unable to communicate.  You have had to have all your teeth removed and this has caused continued pain and discomfort.  You have had regular visits from your family but your wife returned to China yesterday and you are anxious to return home too.  You have retired from the workforce owing to health problems and you are dependent upon your wife financially.

10You have no prior convictions and there appears to have been no planning of the offending, rather, it was a spontaneous incident with no explanation as to the motivation.  You had seen the children in the park previously when they had wanted to hold your grandson, which you had not permitted.  Your approach to Amber on the swing was without incident but of course was not welcomed by her.

11You were assessed recently by the psychologist, Ms Carla Lechner, who found you to be depressed, consistently with your present circumstances, and otherwise there was nothing to suggest any other problems.  She considers you are at low risk of reoffending and indeed your prospects of rehabilitation would seem to be good.

12You are entitled to a discount on your sentence by reason of your early plea of guilty which has saved the witnesses from having to give evidence in a trial, which is a very important consideration.  I also accept it as an indication of your remorse and you have expressed your sorrow for the effects of your behaviour on the children and the family.

13The indecent assault and the way you treated the little girl are very serious offences and the community has every right to feel outraged about such behaviour.  It certainly calls for a prison sentence, as indeed you have already served.  Those who might be inclined to offend in the same way need to understand this and that the court sternly disapproves it.

14As for your punishment, because of the mitigating factors I have mentioned, the time you have already served is sufficient and I will make orders that will permit you to be released immediately on the understanding that you then be detained until your deportation.  I note that the prosecution takes no issue with this course being adopted.

15The maximum penalty for indecent assault and false imprisonment is ten years' imprisonment and for common assault five years.

16Mr Zhang, would you stand please.

17I sentence you to the following terms of imprisonment:  for indecent assault, six months; for false imprisonment, three months; for common assault, two months.  The sentences for Charges 2 and 3 are to be served concurrently with the sentence for Charge 1.  This results in a total effective sentence of six months.

18As I said earlier, you have already served 216 days, not including today, which I declare to be reckoned as already served and I shall cause that to be noted on the court record. 

19If you had pleaded not guilty to these charges I would have sentenced you to ten months' imprisonment.

20There are several other matters to be dealt with.  The forensic sample obtained from you will be automatically retained and so I do not need to make any order. 

21You are a registrable offender under the Sex Offenders Registration Act subject to reporting conditions for eight years but because you will be deported that provision will have no effect.  However, I make the order anyway, as I am obliged to do, and that order will be given to you in a moment.

22Are there any other matters I've neglected, Ms Piggott?

23MS PIGGOTT:  No, Your Honour.

24HER HONOUR: The practical problem I suppose is the time that needs to be taken for the interpreter to interpret the sentence and the Sex Offender registration form to Mr Zhang.  My associate will give that to him now.  There's no need for me to stay on the Bench any longer so I'll leave the court in a moment.

25MS McCANN:  I appreciate that the Sex Offenders Registration aspect of it would need to be explained in court.

26HER HONOUR:  That needs to be done .

27HER HONOUR:  All right.  In that case we will proceed with the sex offender registration form now.

28MS McCANN:  Yes.

29HER HONOUR:  I will ask my associate to take that down to him now please.  After that, as soon as he has signed it, he can be taken down to the custody centre and you and Madam Interpreter could see him down there in due course.

30MS McCANN:  Yes.  Yes.

31HER HONOUR:  Thank you very much.

32MS McCANN:  May I approach my client as well?

33HER HONOUR:  Yes.

34(Sex offenders registration signed and acknowledged.)

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