Director of Public Prosecutions v Zheng Wei Gao
[2015] VCC 693
•27 May 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00604
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZHENG WEI GAO |
---
JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 May 2015 | |
DATE OF SENTENCE: | 27 May 2015 | |
CASE MAY BE CITED AS: | DPP v Zheng Wei Gao | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 693 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr M. Regan | Office of Public Prosecutions |
| For the Accused | Mr S. Payne | Victoria Legal Aid |
HER HONOUR:
1 Zheng Gao, you have pleaded guilty to one charge of false imprisonment and one charge of intentionally causing injury. The maximum penalty applicable to the charge of false imprisonment is ten years and to intentionally causing injury ten years' imprisonment.
2 The victim of your offending is Chi Tuen Wong and your crimes arise out of events which took place between 16 and 19 November 2014.
3 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor.
4 I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing consistent with Exhibit A. It is sufficient for present purposes to simply say the facts in this case, in my opinion, are most serious and disturbing. Your behaviour was thuggish and sickening.
5 I turn to a brief summary of your offending. The victim in this matter, Chi Wong, also known as “Little Ben”, was born in 1990 and arrived in Australia from China in 2010. He had been living in Melbourne since then. In May 2014 he ceased studies after failing English and his visa was cancelled. He remained in Melbourne as an unlawful non-citizen.
6 On 30 December 2014 Wong attended Glen Waverley Police Station and reported he had been the victim of multiple kidnappings, blackmails and assaults between April and December 2014. His main allegation was that he had been unlawfully detained over three days in an apartment in Docklands in November 2014, tortured and beaten repeatedly during that incident.
7 Mr Wong provided names and addresses of alleged offenders and told investigators the persons were involved in trafficking methylamphetamine, ice. At the time of his complaint to police, Wong had a number of visible injuries which he said were the results of the most recent assaults.
8 A number of allegations were being made by Wong to police which included being burnt to his arms and face, being tied to a chair for a number of days, having boiling water poured over his face and chilli oil rubbed in his wounds and having his mouth and nose covered with a wet towel restricting his breathing, having his right hand hit with meat mallet, although that was on an occasion prior to November 2014 and I am aware of that, and being punched multiple times to the head and body on occasions, including in November 2014.
9 An examination of Wong on 30 December 2014 by a forensic medical officer confirmed that the injuries were consistent with his allegations.
10 Wong admitted that between April and December 2014 he was involved with drug transactions with a number of people whom he named. He said he owed different amounts of money to different people for those drug transactions.
11 Police investigating his allegations ultimately charged a number of people with offences against Wong, including yourself.
12 The alleged ring leader was Wen Tao Wei, born in 1980, originally from China, now an Australian citizen. It is alleged that he was a standover man with a number of willing associates and accomplices.
13 Wong alleged he first met Wei in Box Hill in April 2014 and that he wanted Wong to sell drugs for him. The next day Wei demanded Wong buy a handgun and punched Wong to the face with his fist when Wong said he could not buy it. Wei demanded Wong pay $2,800 to him for the gun. Fearful of Wei, Wong borrowed $2,800 from his sister and gave it to Wei.
14 Wong further alleged that in August and September 2014, Wei went to Wong’s house in Glen Waverley with two unidentified males. Wei punched Wong to the face and attempted to stun him with a tazar-type device. Wei and the males demanded money, and burnt his arms and face using heated “ice pipes”.
15 Wong was then taken to Wei’s car and money was demanded from him. Wong was driven to Southbank, blindfolded, taken to an apartment and put into a toilet, as more demands for money were made. Wong was returned to his home and at that time Wei demanded $16,000 from him.
16 The $16,000 demand continued through to September when Wei again turned up at Wong’s with three unidentified males. Wong said a rope was placed around his neck and he was again burnt to the face and arms and hit to the head, back and arms with a piece of dowel. Chunks of hair were cut from his head using scissors before Wei and the males departed, maintaining their demand for $16,000.
17 Wei and the males also took Wong’s Toyota Yaris sedan, his Chinese passport, other documentation and a watch.
18 Relevant to your charges, in November 2014 another co-accused, Yaxuan Wang, known as “Polly”, attended Wong’s home with two unidentified males. Wong was grabbed, pulled into a car and driven against his will to Docklands and to an apartment where there were about five other persons present.
19 In the apartment he was tied to a chair, assaulted by various people present and repeatedly interrogated about when he was going to pay the money to Wei. Wong was held for about three and a half days in that apartment with Wei attending at various times making demands for money to Wong.
20 Another co-offender in this offending was Yaunce Lin, known as “Guang”. He had been an unlawful visa over-stayer in Australia since 2009 and it was his apartment at Docklands.
21 Lin was present when Wong was brought into the apartment by Polly and two unidentified males. Wong was tied to a chair and Lin began burning a candle, dropping hot wax onto Wong’s chest and pouring some near-boiling water onto his face. Lin then got chopsticks and painfully squeezed Wong’s fingers using the chopsticks.
22 Lin also used a towel, placed it on Wong’s face and poured cold water over it, making it difficult for Wong to breathe. The near-boiling water was poured onto Wong’s faced which caused burns to his forehead. Chilli oil was rubbed into those burns causing pain.
23 From the time Wong was untied from the chair to go to the toilet, and at night he was permitted to sleep in an adjacent room, but always guarded by someone else.
24 Turning to another of your co-offenders, Men Wang Kim or “Paul”. Kim arrived in Australia on a student visa. He was present during much of Wong’s false imprisonment in the Docklands apartment, although he came and went at various times.
25 Kim did not physically assault Wong but did act as “security”, guarding him when he was permitted to sleep in the adjacent room. Wong managed to get Kim’s mobile phone and quietly call emergency services. Wong, however, could not tell emergency operators where he was and therefore police did not attend.
26 There was another co-offender, Wei Long Cai or “Eddie” in Australia on a temporary resident’s visa until 10 September 2017. He attended on the final day that Wong was held at the Docklands apartment. Wong alleged that in December 2014 Cai or Eddie persuaded Wong to move temporarily into his apartment in Southbank. Wong alleged Cai or Eddie drove him back to his Glen Waverley home to get his things and when arriving at the Glen Waverley house, they saw Wei’s car was there. Wong did not want to go into the house fearing Wei. Cai, however, pushed Wong into the house. Wei then assaulted Wong, hitting him with a meat tenderising mallet, not the charge before me relevant to you. It is alleged that Cai said to Wong that he had paid Wei $4,500 and that now Wong owed him and if he did not pay the money to Cai, he would look to Wong’s sister and family.
27 Turning to co-offender, Yaxuan Wang or “Polly". She was in Australia on a student visa. Wong alleged Polly supplied him with 3.5 grams of methylamphetamine to sell and that two days later she began demanding payment of $900 from him. She was given $500 then told Wong that Guang wanted to see him. It was then he was grabbed and taken by Polly and the two unidentified males against his will to the address at Docklands.
28 Wang was present for some of the time Wong was being held at the apartment and present while some of the assaults took place, although it is not alleged she actually directly assaulted Wong.
29 Turning to your role in this outrageous and disgusting behaviour.
30 On or about 16 November 2014, you were present at Docklands with Lin when Wong was brought in by Polly and the two male accomplices.
31
Under Lin’s direction, you and another male tied Wong to a chair using phone cable to tie his hands and using packing tape around his wrists. Lin then used a candle to drip hot wax onto Wong’s head and chest. He also dripped
near-boiling water onto Wong’s face and forehead.
32 You and Lin put chopsticks between Wong’s fingers and painfully squeezed his fingers.
33 A wet towel was placed over Wong’s face and cold water poured over it, compromising Wong’s ability to breathe. An unidentified male also used a sharp metal pen to stab Wong’s legs which caused him to scream. You put a towel over his mouth to quieten him.
34 You left the apartment about 7.00 am the following morning, however you returned about 24 hours later. When you returned Wei was also present and he asked you to help “look after” the situation.
35 At that time Wong was asleep in the bedroom with Kim acting as “security”. You and two others opened the bedroom door to check and saw that Wong was holding Kim’s mobile phone. The phone was grabbed and it showed Wong had dialled emergency services. Lin then hit Wong to the face with an open hand.
36 You were told to stay with Wong while others cleared the apartment of illegal drugs and went to see if police were attending. During that time you hit Wong hard to the nose, causing his nose to bleed.
37 Lin and an unidentified male returned to the apartment and you assisted to hold Wong’s arms while the unidentified male assaulted him, punching him a number of times to the ribs.
38 You then left the apartment later that night leaving Wong detained with Lin and Kim. You were actively involved in this disgusting offending, which I have no doubt put your victim in fear.
39 On 4 January 2015 you attended Box Hill Police Station and volunteered that you had been involved in the detention of Wong at Docklands and as a result, you were directed to attend Oakleigh Police Station on 6 January. You did and you were arrested and interviewed.
40 During the interview with police you made extensive admissions as outlined in the prosecution opening and I have also read your record of interview.
41 The prosecution in Exhibit A referred to Wong’s allegations at Docklands as being extremely serious. It certainly was. The prosecution accept that when you gave your record of interview, you candidly and frankly corroborated a lot of what Wong had claimed had occurred relevant to the charges that are before me. The prosecution submitted that you and your co-offenders' offending was a serious example of false imprisonment and intentionally causing injury and I agree.
42 I accept you admitted your direct involvement in the infliction of injuries and participating in the false imprisonment and that you admitted you tied Wong up.
43 Your co-offenders, Wei, Lin, Cai, Wang and Kim, are listed for a three day contested committal due to commence on 13 July 2015.
44 Kim also made extensive admissions, corroborating Wong’s general allegations about his false imprisonment and torture.
45 Wei provided almost completely unresponsive answers to police questions. He confirmed only some peripheral detail of the allegations, denying the central allegations of false imprisonment, beatings, threats, extortion and torture.
46 Cai admitted to knowing Wong and that Wong had issues with "other people" and was being assaulted by them, that he was present on one occasion when Wong was assaulted and said he paid $4,500 to Wei to prevent Wong from being further assaulted. Cai had also been charged by police with 85 grams of substance suspected of containing methylamphetamine, as well as trafficking paraphernalia from his home.
47 Wang or “Polly” made a “no comment” interview which of course was her right.
48 Exhibit A referred to the prosecution intention to compel you to give evidence at the contested committal. To date you have refused to give an undertaking to give evidence on behalf of the prosecution.
49 None of your co-offenders have yet been dealt with and as such parity is not a consideration when sentencing you.
50 Following your arrest on 6 January 2015 you remained in custody and as at 18 May, your plea hearing, you had spent 133 days in custody at that time by way of pre-sentence detention.
51 You have admitted a number of prior court appearances. You came to Australia in 1998 and since then you have appeared at court on a number of occasions. You appeared at Melbourne Magistrates’ Court on 6 February 2014 on charges of attempted robbery, unlawful assault and extortion, with threat to inflict injury. For that offending you were without conviction placed on a community-based order for a period of 12 months.
52
You next appeared at court on 20 August 2008 on charges of possess and traffic heroin, possessing prescription drugs, possessing a controlled weapon without excuse, having in custody a false document, a number of driving related offences and a number of dishonesty charges, including 22 charges of obtaining property by deception. For that offending you were sentenced to
15 months' imprisonment with a non-parole period fixed at 8 months.
53 On 17 September 2008, you were before the court on two charges of theft and a three month sentence was imposed.
54 Mr Payne, who appeared on your behalf at your plea hearing, submitted consistent apparently with your instructions, that you did not seek to downplay or minimise your offending before me. Nor he said could you offer any form of justification for your offending before me, and I add, nor could you provide any justification.
55 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour and I do so. The community has by your plea been spared the time and cost of a trial and witnesses, in particular the victim of your offending, has been spared the ordeal of having to give evidence upon your trial. In addition I accept you entered early your intention to plead guilty to these charges and also from time of your interview with police on 6 January 2015, where you made admissions to your involvement in the actual offending and also followed that with a statement to police sworn that same day. I did however discuss with Mr Payne the lack of clarity in the reasons for your involvement in this in the first place.
56 Your plea of guilty and the stage at which it was entered, which I accept was at the earliest opportunity, is a matter in mitigation of your sentence. Further in the circumstances I am prepared to accept that in your case your plea of guilty indicates some remorse for your actions.
57 I turn to the written outline of submissions prepared by Mr Payne, Exhibit 1. Mr Payne commenced by noting you accepted your offending was very serious and without justification. He submitted that despite any distinguishing features between your role and that of your co-offenders, you acknowledged your part would have been distressing, terrifying and painful for the victim.
58 On this day you instructed you had been using ice. That of course is not mitigatory of sentence.
59 You instructed you remained fearful of the others in the group. It was clear, however, that you were aware that Wong, the victim, was going to be kidnapped and brought to the apartment. Apparently Wong was known to you and was considered by you to be a friend.
60 Sensibly it was conceded by your counsel that the imposition of a period of imprisonment was inevitable for your offending. However Mr Payne ultimately urged it was open to me to impose a term of imprisonment, in combination with a community corrections order, and I shall return to that submission shortly.
61 There are, as noted by Mr Payne, a number of aggravating features of your offending, including the length of time of the false imprisonment, that is over a number of days, an attack by a number of people and some “organisation” in the offending. In respect of the latter, I also note your return to the apartment, after your initial assault upon the victim.
62 I discussed at length with Mr Payne the extent of your admissions in the record of interview and your subsequent statement. You have acknowledged the actual offending relevant to the two charges that are before me. However, as discussed with Mr Payne, your reason for participating is less than clear on all the material before me. There were a number of conflicting accounts and these were discussed at length with Mr Payne, who conceded there was somewhat of a “quagmire” regarding your reasons for your offending and detail of it in light of not only the various accounts by co-offenders in records of interview, but compared more importantly with your own record of interview and statements of the victim.
63 It is unclear whether this offending was purely to do with drugs, as the amounts referred to in documentation at various stages varied from $900 to $16,000, or whether you had a “beef” with the victim related to a motor vehicle. The circumstances of all this is very unclear. You instructed there was an element of "payback" to your offending involving a car.
64 Whilst Mr Payne submitted there was lack of organisation from your part, you had the opportunity to leave the premises and not return. However on the following day you did return and continued your assault.
65 The circumstances of your offending are very serious indeed, whatever the reason or reasons.
66 Mr Payne referred to your remorse and insight into your offending in your admissions to police. This of course has to be assessed against the "quagmire" of accounts regarding the background to this offending. It is clear, however, you did admit to police you were involved in falsely imprisoning and intentionally causing injury to Wong.
67 Mr Payne relied upon your early plea of guilty and the utilitarian benefit of it. As I have said, such is relevant in your favour when sentencing.
68 Mr Payne also submitted you are currently in protection and whilst your future location within the prison system following sentence of course was speculation, I accept it is likely you will remain in protection and such is also relevant when sentencing.
69 I am conscious when sentencing you that any period of incarceration may be more onerous upon you, should you be compelled by the prosecution to give evidence in the contested committal hearing listed for July this year and any subsequent trial hearing involving co-offenders.
70 Mr Payne referred to what he referred as your limited priors and in particular limited priors for violence. I am aware of your prior criminal history and that it does not include charges of violent offending, but nevertheless you are someone who has been before the court before and not only that, you have served a term of imprisonment previously. Even that did not deter you from this offending and it would appear on your instructions, your offending occurring just one month after your return to Australia from China.
71 You are 30 years of age at time of sentence, born in Shanghai in 1984 and you are an only child. Your family moved to Australia in 1998 when you were 15 years of age.
72 You described being very close to your family and having lived with your parents your whole life. Your father owns a take-away business and your mother works in childcare.
73 You instructed you were aware of the shame you had brought on your parents by your offending. Your parents were not in court. You told Mr Payne they supported you and that you would have employment again with your father when ultimately released from custody. No material was before me in this regard.
74 When you arrived in Australia you spoke virtually no English. You attended six months of English language school before entering the mainstream system at Year 8. You attended Koornung Secondary College, successfully completing Year 12, then spent one year at Monash University of a Bachelor of Computer course but did not complete that. You went to TAFE and studied International Trade but again did not finish that course.
75 You described having worked as a kitchen hand in your father’s business until you were first imprisoned. Upon your release from prison initially, that is an earlier sentence, you travelled to China and stayed there for a year and when you returned to Australia then worked in two printing factories.
76 You again returned to China, back to Australia in October 2014. At that time you resumed work with your father before being incarcerated for the offences before me. As I discussed with Mr Payne, I note your offending before me occurred just one month approximately after your second return to Australia.
77 You are not married nor do you have any children, but I was told you have a relationship with a lady who lives in China.
78 You instructed your history involves significant drug use over the years, having been introduced to heroin in your late teens. You instructed you ceased that drug use when you first went to prison. Following release from prison, you did not relapse into heroin use but rather began using “ice”. On the day of this offending you had also consumed ice, on your self-reporting.
79 Mr Payne submitted you were now drug-free and alcohol was no longer an issue for you. This was again from your self-reporting. No reports were before me.
80 Mr Payne submitted your rehabilitation prospects would increase if you did not use drugs in the future. That of course is correct. Unfortunately to date your history does not give me a great deal of hope regarding your rehabilitation prospects. In your history there is little to suggest or give me confidence you will be successfully rehabilitated. Of course, if you remain off drugs and perhaps stop associating with the likes of your co-offenders, your prospects will improve. However at the moment I have at best guarded optimism regarding your rehabilitation prospects. In the end only time will tell. The only material before me really comes from your self-reporting.
81 However when sentencing you, I must seek to maximise your chances of rehabilitation as they may be.
82 Mr Payne was not relying upon any principles in Verdins during the course of your plea hearing and that was an appropriate concession. There was no reports before me and no other ‘independent’ material.
83 I do note, however, that following imprisonment in 2008 you successfully completed a period on parole. Hopefully you will be again able to successfully complete a parole period. In the interim whilst incarcerated you should hopefully address your drug use by participating in appropriate courses including any offence specific programs offered to you. If they are not offered, you should seek them out if you want to improve your rehabilitation prospects when on parole and then in the community.
84 Turning to other sentencing considerations, Mr Payne acknowledged there was a need for general deterrence and denunciation when sentencing you. He is correct.
85 Further, there is a need for specific deterrence when sentencing you, given your prior criminal history and the need for community protection as a result of your offending. Further, he conceded there needed to be just punishment for this offending. All of those submissions are correct.
86 Mr Payne’s ultimate submission was that you could be appropriately sentenced for your offending by the imposition of a term of imprisonment and a community corrections order.
87 I discussed the limitation of such an order with Mr Payne and the transcript will reveal that discussion.
88 Mr Regan, on behalf the prosecution, acknowledged you had voluntarily attended the police station and detailed your involvement specifically of your offending and made a further statement, although he said your reasons for offending were less than clear.
89 The prosecution submitted an immediate custodial sentence was appropriate for your offending, taking into account all relevant sentencing submissions. He submitted that to impose a term of imprisonment together with a community corrections order would not be appropriate in all the circumstances, and as I interpret that meaning to be would be manifestly inadequate in all the circumstances.
90 Mr Regan submitted that there was the need for general and specific deterrence when sentencing you. I agree. Further he submitted your moral culpability was high, that whilst you were candid in the record of interview regarding your involvement in the actual offending, you lacked, in his submission, recognition your offending was wrong. I have not drawn that adverse conclusion, although do remain concerned regarding your insight.
91 Mr Regan correctly conceded your protection status to date was a relevant sentencing consideration and conceded protection was likely to be your future status whilst undergoing any sentence.
92 There was no victim impact statement in this matter. It is clear, however, from the depositions and the statements of the victim that he was in fear as a result of your actions and those of your “group” when he was unlawfully imprisoned and assaulted at Docklands.
93 I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
94 There is also the need for specific deterrence and that you do have a prior criminal history. I am also particularly troubled by your returning to the property after you had left. You had the opportunity to stay away but chose to return and continue as part of this "group".
95 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. This still troubles me.
96 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
97 In determining that an immediate custodial sentence is the only appropriate sentence, I am conscious of the decision of Boulton & Ors v R[1].
[1] (2014) VSCA 342
98 Sentencing courts are required to “rethink the conventional wisdom about whether prison is really the only option”, see Adam v R[2]. Further, that community corrections orders, whilst punitive in nature, also provide an opportunity to promote the best interests of the community and the offender’[3].
[2] [2015] VSCA 48 at 20
[3] Ibid, para (54)
99 I did not understand Boulton’s case to mean that the principles set out in s.5 Sentencing Act 1991 were no longer applicable. Nor did I understand sentencing principles regarding this type of offending, a specifically violent offending, referred to in previous decisions of the Court of Appeal, amount to nought since Boulton. Nor did I understand Boulton’s case to remove the instinctive synthesis involved when sentencing. I am of course conscious that a term of actual imprisonment must always be the last resort of the court.
100 In my opinion, however, to impose a sentence of two years' imprisonment, even with the days you have served to date in custody by way of pre-sentence detention and to then impose a community corrections order, would not appropriately take into account all matters relevant when sentencing you.
101 To impose such a sentence urged by Mr Payne, in my opinion would lead to a manifestly inadequate sentence for your offending, even taking into account all matters in mitigation of your sentence.
102 On charge 1, you are convicted and sentenced to 2 years' and 6 months imprisonment.
103 On Charge 2, you are convicted and sentenced to 2 years’ imprisonment.
104 Charge 1 is the base sentence and I direct that 10 months of Charge 2 be served cumulatively upon Charge 1.
105 That results in a total effective sentence of 3 years and 4 months imprisonment, and I direct that you serve a period of 2 years and 2 months before you are eligible for parole.
106 Pursuant to s.184 Sentencing Act 1991, I declare you have spent 141 days in custody, up to and including yesterday, 26 May 2015, by way of pre-sentence detention and I direct that be entered into the records of the court.
107 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these two charges following jury verdict, in other words, if you had pleaded not guilty but been found guilty of these two charges, I would have sentenced you to a term of imprisonment of 6 years and set a non-parole period of 4 years.
108 No other orders were sought by the prosecution, is that correct?
109 MR REGAN: That is correct, Your Honour.
110 HER HONOUR: What about the PSD, is that right?
111 MR REGAN: The PSD is correct.
112 HER HONOUR: Up to and including yesterday, 141 days?
113 MR REGAN: That is correct, Your Honour.
114 HER HONOUR: All right. Is there anything further from counsel? Any clarification required about anything said?
115 COUNSEL: No, Your Honour.
116 HER HONOUR: All right, thank you. Thanks for your assistance. Thank you, can you remove Mr Gao please. Thank you very much. Thanks Mr Gao.
- - -