Director of Public Prosecutions v Zhu

[2021] VCC 1473

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE

CRIMINAL DIVISION

Revised Not Restricted

Suitable for Publication

CR-21-00831

DIRECTOR OF PUBLIC PROSECUTIONS

v

JIN ZHU

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JUDGE:	HER HONOUR JUDGE KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2021
DATE OF SENTENCE:	21 September 2021
CASE MAY BE CITED AS:	DPP v Zhu
MEDIUM NEUTRAL CITATION:	[2021] VCC 1473

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentencing.

Catchwords:               Plea of guilty – Make threat to kill – Intentionally damage property – Attempting to pervert the course of justice – Unlawful assault – Unlawful assault with a weapon – Possess prohibited weapon – No criminal history – Mental health – Verdins – Family violence – COVID- 19 pandemic.

Legislation Cited:      Sentencing Act 1991 ss 6AAA, 18

Cases Cited:R v Verdins & Ors [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169

Sentence:Imprisonment for a period of 9 months. Upon release, a Community Corrections order for a period of 10 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms M. Zammit	Office of Public Prosecutions
For the Accused	Mr J Gullaci (plea) Mr C. Nikakis (sentence)	Haines and Polites Lawyers

VICTORIAN GOVERNMENT REPORTING SERVICE

(Prepared by Epiq Australia Pty Ltd) 224480

HER HONOUR:

1Jin ZHU, you have pleaded guilty to an indictment containing the following charges: Charge 1, make threat to kill; Charge 2, intentionally damage property; and Charge 3, attempting to pervert the course of justice.

2Each offence carries the following maximum sentences:

(a)Make threat to kill, 10 years' imprisonment.

(b)Intentionally damage property, 10 years' imprisonment

(c)Attempting to pervert the course of justice, 25 years' imprisonment.

3You have also pleaded guilty to the related summary offences of unlawful assault (Charges 1 and 2), unlawful assault with a weapon (Charges 5 and 7), and possess prohibited weapon (Charge 11). The charge of unlawful assault carries  a maximum sentence of 15 penalty units, or imprisonment for three months. The charge of assault with a weapon carries a maximum sentence of two years' imprisonment. The charge of possess prohibited weapon has a maximum sentence of 240 penalty units, or imprisonment for two years.

Circumstances of the offending

4The full circumstances of your offending are set out in the Summary of Prosecution Opening dated 27 August 2020, marked as Exhibit 1 on the plea. The document forms part of, and is attached to, these reasons, so I will not repeat the summary here, but I will refer to it briefly.

5The victims of the offending are your wife, Emily Yang1, and your son, David,2 who was aged 12 at the time.

6You married in China in around 2005 and have two young children: David, born in 2008, and Sally,3 born in 2011. Your family settled in Australia in 2014. Your

1 A pseudonym.

eldest son from a previous marriage, Oliver, also lived with your wife and children. Prior to your offending in 2020, you would routinely return to China and visit Australia for about one month a year.

7You last arrived in Melbourne on 3 January 2020 and stayed with your family in Doncaster East. They were aware that you suffered from a mental illness. In  April 2020, you started experiencing difficulties with your mental health and sleep. You were presenting as either in a hyper mood or as being agitated and presenting with odd behaviours.

8One morning in April, you woke your son, David, at 5 am for breakfast. He  did not want to get up. You dragged the bedsheet, with him on it, off the bed. You then took a drag from your cigarette and blew the cigarette smoke into his mouth and nose, causing him to struggle to breathe. He was scared and started to cry, and had to use his inhaler, as he suffers from asthma (Summary Charge 1 - unlawful assault, David). You left the room upon your wife, Ms Yang,  attending, and a short time later you returned and asked David to forgive you. David was crying, and your wife and eldest son, Oliver, removed him from the room. You then started punching yourself in the head, and Oliver stopped you from hurting yourself.

9On or around 20 April 2020, Ms Yang was in the kitchen, and you walked in behind her, holding a red pyjama belt/rope.  She asked what you were doing,  and you put the item around her neck. She was able to hold onto it with her  hand. Oliver ran into the room, and you let go of the belt/rope. You said, 'I'm just kidding, I'm just trying it out' (Summary Charge 2 - unlawful assault, Emily Yang). Ms Yang was scared but sustained no injuries.

10On another occasion, in either late April or early June, Ms Yang was in her bedroom, on her bed. You walked in, said something, and then put a string of walnuts around her neck, squeezing. This caused her to feel like she was

suffocating. You let go. She told you this was the second time you had tried strangling her, and you said, 'I know, I'm just trying it out. If I wanted to do it, do you think you'd be alive?' (Summary Charge 5 - assault with a weapon, Emily Yang).

11On 9 June 2020 you asked Ms Yang about an opal you had bought in 2012, and she told you it was with her parents in China. You became worried and anxious, and asked her to ring her brother and have him deliver the opal to your parents within three hours. Ms Yang telephoned her brother, and, while on the phone, you started scolding her, using foul language directed at both of them, and you located a sword and pointed it at her neck, holding it there for 10 seconds. You did this twice (Summary Charge 7 - assault with a weapon, Emily Yang).

12You said, 'I will give you only three hours. You must have that opal delivered to me,' and you also said, 'Don't you think that I wouldn't dare kill you. I could kill you, and then kill myself' (Charge 1 indictment - threat to kill). Ms Yang was very scared by this threat. You left the room. Ms Yang noticed  that  you appeared to be going a bit crazy. You were crying, repeating what you had said, and were waving the sword at the wall of the stairway, causing marks on it.  Oliver managed to take the sword off you and hid it in the laundry.

13On 11 June 2020, you were sleeping, when Ms Yang alerted Oliver and said, 'I can't die for my children.' He called Triple 0, realising that Ms Yang had taken all of her sleeping pills. Consequently, the police were notified and arrived at your address. They entered, with your permission, and located the samurai sword in the doorway of the laundry. A further hatchet and sword were located in an upstairs bedroom (Summary Charge 11 - possess prohibited  weapon).  Police observed that your behaviour was erratic, but at that time did not regard you as posing an immediate threat.

14At about 6 pm on the same day, you used a golf club to smash Ms Yang’s Mazda that was parked at the address. You also damaged the vehicle by kicking it

(Charge 2 indictment - criminal damage). A neighbour observed the  offending, and the police were called and re-attended. They observed  the vehicle and located you in the house, noticed you were acting more erratic then earlier, and considered you did pose a threat. You were sectioned under the Mental Health Act 2014 and taken to Maroondah Hospital for assessment. After a period in hospital, you were thereafter arrested and remanded in custody.

15While in custody, you made a number of international calls to your sister, Jin Fan Zhu, and had several conversations with her between 14 to 25 July 2020. The conversations specifically relied upon by the Crown are reproduced in the opening at paragraph [23] and I will not repeat the content of them here. In those conversations you essentially: ask your sister to direct Ms Yang to withdraw the charges; state that if the charges aren’t dropped, you’ll have a senior assistant make a phone call that will finish the whole family business; state if the charges are not dropped, it will cost them and that Ms Yang should not go back to China; and you direct her to tell Ms Yang that she will be detained as soon as she lands in China (Charge 3 indictment - attempt to pervert the course of justice).

Arrest and procedural history

16As earlier noted, on 11 June 2020 you were sectioned under the Mental Health Act and conveyed to the Maroondah Hospital for assessment. You were made  an involuntary patient until your discharge approximately one month later, on 10 July 2020.

17On this date, you were discharged and then arrested by police. You were conveyed to court, where interim intervention orders with full conditions were made with respect of your wife and children. I have been told that those orders expire in October of this year.

18You were not asked to participate in a record of interview (ROI).

19You were then charged and remanded in custody.

20On 30 March 2021, you ran a contested committal hearing. As discussed at your plea, the focus of the hearing was limited to matters only relating to your mental health. On 12 August 2021, your case resolved, and you entered pleas of guilty to the charges on the indictment.

21You have remained in custody since the date of your arrest and have a total of 438 days pre-sentence detention.

22You have no prior criminal history.

Nature and gravity of the offending

23I will now address the nature and gravity of your offending.

24The assaults, threat to kill and criminal damage occur between April 2020 to when you were hospitalised on 11 June 2020. In relation to the objective gravity of your offending I have had regard to some of the following matters: the  assaults and threat to kill occurred within the home, where your wife and child were entitled to feel safe; summary charge 1 relates to your child, who was only 12 years of age at the time; and the two assaults against your wife involved you placing a rope and string around her neck, which, although not causing any physical injury, caused her great fear. It was conceded by your counsel that this type of offending is serious. As the prosecutor stated in her written submissions, 'The community abhors such conduct, and is completely unwilling to tolerate it.' Denunciation, just punishment and general deterrence are usually given primacy in sentencing in this context.

25In relation to the attempt to pervert the course of justice charge, there was no dispute that this was a serious charge, and that the maximum sentence reflects the fact that the crime imperils the proper administration of the criminal law. General deterrence is usually given significant weight in sentencing those who commit this crime. Taking into account the objective circumstances, I regard  your offending as at the lower to mid-level for offending of this type. As was

accepted by the prosecution, 'It is not the lowest level example, but it is clearly not at the other end, either.' Your offending was relatively simplistic and did not involve any planning. It comprised of several recorded telephone calls made to your sister while you were on remand and had only recently been discharged as an involuntary psychiatric patient.

26As was agreed between the parties, what is particularly unique in your case is that the majority of your offending occurred within the context of your serious mental illness. Your illness at the time and the application of Verdins4 principles in your case has a significant bearing on an assessment of the gravity of your offending and your moral culpability.

27The parties agreed that your offending can be seen to fall within three discrete, though related, periods: April/May 2020 (Summary Charges 1, 2 and 5), when your mental health was declining; June 2020 (Summary Charges 7 and 11 and charges 1 and 2 on the indictment), when you were acutely unwell and psychotic; and July 2020 (Charge 3 on the indictment), when your symptoms were still active, but had subsided. I consider the effect of this in further detail below,  when dealing with the application of the Verdins principles.

Victim Impact

28I have not received a Victim Impact Statement from Ms Yang or any member of your family. I was told that they have had the opportunity but declined to make a statement. Ms Yang’s police statement refers to the understandable fear and distress that she felt at the time of your offending. It was properly conceded on your behalf that your criminal conduct, and your general erratic and unusual behaviours at the time, would have been very frightening and disturbing for your wife and children. I take this into account in sentencing you.

Psychiatric Evidence and application of Verdins

4 R v Verdins & Ors [2007] VSCA 102

29I received a number of medical reports that canvass in detail your mental illness and your poor and deteriorating mental health at the time of your offending. I have found this material to be of great assistance, and I will now briefly refer to it.

Eastern Health, Dr Jose Segal, 8 July 2020 (Exhibit B)

30The report notes that you have had an 'established relapsing mental illness for at least the last 30 years,' and had previously been treated with clozapine and lithium. When you were conveyed to the hospital by police, it was quickly established that you were mentally unwell and alcohol intoxicated. You were 'frankly psychotic,' and your behaviour was 'markedly disturbed'. You required medical restraint, rapid tranquilisation, and special nursing care. During your hospitalisation you also received approximately six treatments of electroconvulsive therapy. Non-adherence with prescribed medication for  several months was identified as a significant factor for your relapse. Your diagnosis was considered to be bipolar mood disorder type 1, severe, relapsing, with psychosis; most recent episode manic, with psychosis.

Dr Gunvant Patel, 16 September 2020 (Exhibit C)

31Dr Patel saw you for the purpose of assessing fitness and mental impairment issues. He assessed you on 9 September 2020, and also had access to your Justice Health file. While he considered it unlikely that you would meet the threshold for mental impairment, Dr Patel states that you suffer from a serious mental illness. Your illness exhibits disturbances in mood, thought, and at times perception. In his opinion, bipolar affective disorder was a possible diagnosis,  but he could also not exclude schizophrenia. He states that at the time of your offending, you knew the nature of your actions, but you were 'affected by disorganised thinking and disinhibition, such that [your] mental functioning was impaired to a significant degree,' and as a result you fluctuated in your 'capacity to deliberate over [your] urges.'

Mental Health Advice and Responsive Service ('MHARS') reports (Exhibit D)

32I received MHARS letters, of 22 and 29 October 2020. The letters also helpfully annexe the report that was provided to the Mental Health Review Tribunal, of 8 July 2020, which gives further insight into your presentation at the time of your hospital admission. The letters also indicate that in prison you have received some case management and have been complying with your medication regime.

Lester Walton, 22 June 2021 (Exhibit E)

33Dr Walton assessed you on 24 May and 17 June 2021, and you were thoroughly cooperative. He agreed with Dr Patel that the precise diagnosis in your case remains a little obscure. He states that while the 'diagnostic niceties are an interesting distraction for psychiatrists,' it is clear that you are 'suffering from a chronic psychotic disorder which would be straightforwardly accepted as a disease of the mind.'

34In his opinion, at the time of the assault incidents you were 'acutely psychotic'. It was only on a 'reasonably fine balance of probabilities' that he considered that you did not have a mental impairment defence available in relation to these charges. He described it as a 'near-miss' mental impairment and opined  that your major mental disorder 'did make a direct contribution to [your] behaviour, especially disinhibiting the aggressive urges to some extent, and in [your] state of marked agitation, [you] likely would not have given proper thought to the longer term consequences of [your] actions.'

35In relation to the attempt to pervert the course of justice charge, it was clearer that you had no defence of mental impairment available to you. This was consistent with the fact that at that stage, you had received treatment, and your psychotic symptoms had substantially subsided. You simply claimed to be ignorant that such behaviour was unlawful, but you now accept that proposition.

36Dr Walton also expresses the opinion that 'any prisoner suffering from a recurring major psychiatric illness will endure incarceration  as more onerous than others.'  I accept that this is the case for you.

37The expert evidence before me clearly establishes that you suffer from a serious, long-standing mental illness for which you will require life-long treatment. This was not in dispute between the parties.

38The parties agree that your case is one of those rare cases where the Verdins principles 1 through to 5 are enlivened and have clear application on the charges. However, the severity of your mental impairment appears to differ as between the offences, and there should therefore be some correlating variation  in the weight to be attributed to these matters.

39I accept that during the first period of offending, your mental health was rapidly declining and impaired. You sought to obtain some assistance at that point, but as your counsel submitted, it may have been too late by then. Your declining mental health is entirely consistent with the description by Ms Yang in her police statement of your behaviours from Ahpril 2020. I accept that in relation to the second period of offending in June 2020, right before you were hospitalised, you were acutely psychotic. I consider that your moral culpability for these periods of offending is significantly lowered as a result of your illness. Given in particular  the nature and severity of your symptoms at the time, it also results in a significant moderation of general and specific deterrence as sentencing considerations.

40In relation to the pervert the course of justice charge, Dr Walton indicates that you were receiving treatment at the time, and your symptoms had substantially subsided. This is somewhat at odds with your report to Dr Patel. I do note, however, that the offending period is between 14 July to 25 July 2020, and for at least part of this period - 12 July to 20 July 2020 - according to Dr Patel, the Justice Health file indicates that you 'continued to show unstable mood, disinhibition and irritability, disorganisation in thinking and behaviour.' I accept that at the relevant time you were still suffering a level of instability and chaos arising from your mental illness, but that the severity of your impairment at this particular time can be distinguished from the earlier period.

Plea of guilty and remorse

41Moving on, Mr ZHU, you indicated that you would plead guilty on 12 August 2021. This is significant and counts in your favour. While not an early plea, I accept that the resolution of your matters first required proper exploration of the complicated mental health issues that arise in your case.

42Your plea is particularly valuable in circumstances where there is a large backlog of cases in the court, and I recognise the utilitarian benefit of that. As the Court  of Appeal has recently stated, a plea of guilty during the pandemic should result in a 'perceptible amelioration of sentence'.5

43I accept, as was submitted on your behalf, that the plea of guilty indicates an acceptance of responsibility and some limited evidence of remorse. I note Dr Walton's opinion that while you do not present as remorseful, the illness you suffer from commonly distorts emotional expression.

Personal circumstances

44You are now 48 years of age.

45You were born in China and have lived there for most of your life.

46You were raised by parents who are scientists, and who are both now in their seventies. You have one older sister, who lives in Tian Jin. You were raised in a large city and described your childhood to various doctors as well supported and relatively uneventful.

47You did well academically and obtained qualifications as an electrical engineer.

48

You remain close with your parents and sister, and, with their assistance, you own and run a medical and/or educational equipment supply company, and have done so for some 15 years. This is based in Guangzhou, and your sister is managing it in your absence. I am told that the business continues to operate

5 Worboyes v The Queen [2021] VSCA 169 at [39].

successfully. You have the present comfort of not being under financial pressure or strain, and you have employment to return to. You continue to have weekly contact with your family overseas.

49Your first marriage ended as you apparently disagreed on lifestyles. You have a 20-year-old son from this relationship, Oliver, who was residing with you and Ms Yang at the time of the offending.

50You married and were in a relationship with Ms Yang for approximately 15 years. She and the children have lived in Melbourne since 2014 and are permanent residents. Due to your business demands you spent time in Guangzhou, and a month or so in Melbourne with your wife and children, to meet your residency requirements.

51In relation to your status in Australia, I note here that your counsel referred to the risk of deportation but did not rely upon it as a mitigating factor, given its speculative nature. Mr Gullaci, however, submitted, and I accept, that the risk of deportation, or, as Ms Zammit aptly put it, your potential inability to re-enter the country in the future, is something that has weighed on you during your remand. This is particularly so given your young children are permanently resident in Australia.

52Your marriage broke down, you report, after you discovered Ms Yang had been unfaithful. By March of 2020 you had agreed to separate. At that time, your intention was to return to Guangzhou, but due to Covid you were unable to  travel.

53You consider that you were a devoted father, and you told Dr Patel you would never imagine hurting your children. You have had no contact with Ms Yang or your children since your arrest, and you do not know of their whereabouts. As previously noted, Mr ZHU, there is a current intervention order in place, prohibiting contact.

54In terms of your physical health, you have a past history of cardiac disease. You are also medicated in relation to diabetes and elevated blood pressure.

55In relation to your psychiatric history, as noted earlier, it is long-standing, and you told the doctors that your first psychiatric episode was at around the age of 20.

56I have also had regard to the following additional factors.

Impact of COVID-19 pandemic

57It is now well established that prisoners are subjected to greater restrictions and deprivations than in normal times. We are now in our sixth lockdown, and cases are on the increase. Prisoners suffer the anxiety of not being able to isolate and visits and programs have been suspended. You have also experienced lockdowns and at least one period of quarantine in custody. This is also a factor giving rise to a reduced sentence. I consider these difficulties, in your case, may also be compounded by your language limitations. While you have managed to undertake some English courses in custody, English is not your first language.

Prospects of rehabilitation

58As for your prospects of rehabilitation, Mr ZHU, in custody you have made efforts towards your rehabilitation and in managing and treating your mental illness. I was also told that you have been working in the laundry for a couple of hours each day.

59Ms Zammit raised the legitimate concern that you may have had an earlier awareness of what might occur when you become unwell, and yet still failed to comply with your medication. This does raise some concern. Both Dr Patel and Dr Walton note that you now have some insight into the fact that you suffer from a serious mental illness which requires lifelong psychiatric treatment. Also, your illness, as demonstrated by your current stability and substantial improvements, is treatment responsive. These matters are reassuring in terms of your prognosis.

60Also, you are a mature man with no criminal history. You have otherwise, it seems, been a successful businessman and a contributing member of the community and your family. If your mental illness is properly treated, I consider your prospects for rehabilitation to be very good. Similarly, I consider any future risk of re-offending to be unlikely if you continue to receive and comply with psychiatric treatment.

Sentencing principles

61Finally, Mr ZHU, I will now turn to the relevant sentencing principles in your case. Both parties agree that the sentencing principles of general and specific deterrence, denunciation, and community protection, along with rehabilitation, have a role to play in your case, but that they require moderation, given your mental illness. I accept this submission. As noted earlier, the sentencing task in your case is complicated by the fact that the severity of your mental impairment differs as between the offences. For some of the offending, in particular the June charges, which encompass the threat to kill, criminal damage and the unlawful assault with weapon, your psychotic symptoms were extreme, as was your disturbance of thought, mood and perception. As such, in respect of these matters, your moral culpability is significantly reduced, as is the appropriateness of using you as a vehicle to generally deter others, and the applicability of specific deterrence.

62The impact of your mental illness is not as clear or as extreme in the case of the attempt to pervert the course of justice charge. The parties however agree that your offending on this charge is unique, because of its lead-up and your mental state at the time. This calls for some appropriate moderation of the relevant sentencing principles. I note here that I have had regard to the general  landscape for sentencing for offences of attempting to pervert the course of justice. However, as the parties submitted, other cases are of very limited assistance, particularly given the unique and compelling mental health considerations that apply in your case.

63I regard the protection of the community and your family to be best achieved by your continued treatment for your mental illness. Both parties and the medical experts were in agreement that you require some supervision in the community.

64Also, in relation to specific deterrence, it was further submitted, and I accept, that for someone of your age, with no prior experience of gaol, having spent 438 days on remand in the middle of a pandemic has had a salutary effect.

65In determining the sentence to be imposed in this case, I must also, and do, have regard to the principles of totality and parsimony.

66I have taken into account all the material before me and the submissions of the parties, including those outlined in Exhibit 2 and Exhibit A. I had you assessed  for a community-based order and have received an assessment outcome report of 20 September 2021. I also received a further Forensicare report from Kay Feteris. The outcome report assesses you as suitable for a community corrections order, with recommendations.

Sentence

67Mr ZHU, taking all factors into consideration, and assessing the appropriate sentence in the circumstances of your case, I will sentence you as follows –

68On the indictable charges 1 (threat to kill) and 2 (criminal damage), and the summary charges of unlawful assault (Charge 1) and unlawful assault (Charge 2), assault with weapon x 2 (Charges 5 and 7) and possess prohibited weapon (Charge 11), you are convicted and sentenced to a community corrections order of 10 months' duration, with conditions that I will outline in a moment.

69In relation to the attempt to pervert the course of justice charge, I accept that while the Verdins principles have application, the severity of your mental impairment at the time can be distinguished from the earlier period. I  am satisfied that I have no alternative but to impose a sentence of imprisonment for this charge, and I sentence you to nine months' imprisonment. As of today, I

note again that you have served 438 days in custody. I note but do not declare that period of time under this sentence, but rather declare nine months of it, pursuant to s18 of the Sentencing Act 1991.

70Mr ZHU, you will be placed on a community corrections order for a period of 10 months. You will need to report to Box Hill Correctional Services within two working days. As I understand it, because of the restrictions introduced in response to Covid, that will be by telephone, but it is incumbent upon you to make contact.

71Now, I am just going to explain the conditions of this order. The mandatory conditions of the order include that: you must not commit any offences during  the period of the community corrections order, that is, 10 months from today, for which you could be imprisoned; you must notify a corrections officer of any change of address or employment within two clear working days after the change; you must not leave Victoria without first getting permission to do so from a corrections officer, and you must obey all lawful directions of a corrections officer.

72Additionally, you must also be under the supervision of a community corrections officer for the period of the order. You must undergo assessment and treatment for your mental health as directed. You must engage in programs to reduce your risk of re-offending, as directed. Do you understand the conditions of the order, Mr ZHU?

ACCUSED: (Through interpreter) Yes, I understand.

73You must make sure that you comply with the order. I must tell you that if you do not comply with the requirements of the order, or if you commit a further offence punishable by imprisonment during the period of the order, then you are likely to be breached on your order by corrections, and the matter will be brought back before me. You will then be dealt with for breaching the order, and you will be exposed to the possibility that you will be resentenced for the original offences

and may face a further term of imprisonment. Mr ZHU, do you understand the consequences of breaching the order?

ACCUSED: (Through interpreter) I understand.

HER HONOUR: Mr ZHU, do you understand that, for example, if you were not to  abide by the current intervention order that Ms Yang has against you, that would constitute a breach?

ACCUSED: (Through interpreter) I understand. I will not contact her. HER HONOUR: Do you consent to the making of the order?

ACCUSED: (Through interpreter) Yes, I consent.

74A 6AAA declaration is difficult to give in your case, given the mental health  issues here, as I've already discussed, but I indicate that on the attempt to pervert the course of justice charge, that but for your plea of guilty, I would have imposed a sentence of 16 months' imprisonment and fixed a non-parole period of 10 months.

75I make the forfeiture order for the swords, which was not opposed.

76HER HONOUR: Ms Zammit, Mr Nikakis, are there any other orders or matters that you wish to raise?

77MR NIKAKIS: I'd just like a word with my client once Your Honour has left the Bench, so I can explain a couple of things to him.

78HER HONOUR: Yes, I'll just check that, Mr Nikakis. You have the link available to you until 4.15, and so I'll give you that opportunity.

79MR NIKAKIS: I'll finish before that, Your Honour. Thank you.

80HER HONOUR: Ms Zammit.

81MS ZAMMIT: No, thank you, Your Honour.

82HER HONOUR: All right. Thank you again to the parties. Madam Interpreter, thank you very much for your assistance today.

83INTERPRETER: My pleasure, Your Honour. Thank you.

84HER HONOUR: Thank you. Mr Zhu – Madam Interpreter, I'm sorry.  Are you  able to remain? We're going to adjourn the court, but Mr Nikakis would like to speak to his client. So if you could stay on line, please.

85INTERPRETER: Yes, no problem. Thanks, Your Honour.

86HER HONOUR: Thank you. Adjourn the court, please.

- - -

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE

Court Reference: CR-21-00831 Indictment No: L11649481

CRIMINAL JURISDICTION

IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009

THE DIRECTOR OF PUBLIC PROSECUTIONS

v JIN ZHU

SUMMARY OF PROSECUTION OPENING FOR PLEA

Date of Document:

Filed on behalf of: Prepared by:

ABBEY HOGAN

Solicitor for Public Prosecutions 565 Lonsdale Street

Melbourne Vic 3000

27 August 2020

Director of Public Prosecutions Solicitors code: 7539 Reference: Jack Hurley Telephone: [phone]

File Number: 2004367

Introduction

1.The offender, Jin ZHU, has pleaded guilty to the indictable offences of making threat to kill, criminal damage and attempting to pervert the course of justice. In addition, he has pleaded guilty to the summary offences  of  unlawful assault (two charges), assault with a weapon (two charges) and possessing a prohibited weapon.

2.The offender was born in November 1972 and was 47 years old at the time of the commission of the offences.

3.The victims of the offending are as follows:

oEmily YANG, the offender’s wife who was aged 38 at the time of the offending; and

oDavid YANG, the offender’s and YANG's son, who was aged 12 at the time of the offending.

4.The charges as they relate to the victims are as follows:

Charge No	Charge	Date of offence	Victim	Brief details of incident
1	Make threat to kill	9 June 2020	Emily YANG	Threatening to kill Emily with the threat being made to his son, Oliver
2	Criminal damage	11 June 2020	Emily YANG	Damaging Emily's car
3	Attempt to pervert the course of justice	14 – 25 July 2020	N/A	Requesting persons contact Emily and have her withdraw the charges
Summary Charges
1.	Unlawful Assault	Late April 2020	David YANG	Blowing cigarette smoke into his mouth
2.	Unlawful Assault	20 April 2020	Emily YANG	Putting a red pyjama belt/ rope around Emily's neck
5.	Assault with a weapon	Late April or early June	Emily YANG	Putting a string of walnuts around Emily's neck
7.	Assault with a weapon	9 June 2020	Emily YANG	Pointing a sword at Emily's neck
11.	Possess Prohibited weapon, being a samurai sword and a sword	11 June 2020	N/A	Possessing a samurai sword and a sword, located by police inside the house on 11 June 2020

5.The offender and the victim, Emily YANG, met and married in China in around 2005. The couple had two children together, being David who was born in 2008 and Sally who was born in 2011.

6.In 2014, Emily arrived in Australia with her husband and son David. The offender stayed in Australia for about 2 months before returning to China.  The offender next flew into Australia in 2015, this time bringing Sally with him.

7.Prior to the offending in 2020, the offender would routinely visit Australia for about one month in every year.

8.The offender’s family was aware that the offender suffered from mental  illness. His son, Oliver ZHU, prior to the offending occurring, believed that the offender suffered

from mania and schizophrenia, that the offender was aware of his illness, but that the offender did not want to discuss his mental health issues with anyone.1

Overview of Offending

9.The offender arrived in Melbourne on 3 January 2020 and stayed with his wife and family, including his older son, Oliver, at their address in Doncaster East.

10.In April 2020, the offender started experiencing difficulties with his mental health and his sleep. At around this time, he would either be in a hyper mood or be agitated.2 On some occasions, the offender asked Emily and Oliver if they would like to go to the park with him at 3 or 4am.3

11.One morning in April, the offender woke up 12-year-old David at 5am for breakfast. David did not want to get up at that time.  The offender dragged  the bedsheet, with David still on it, off the bed.   He then took a drag from    his cigarette and blew the cigarette smoke into David's mouth and nose, which caused David to struggle to breathe, become scared and start crying (Unlawful Assault – David YANG). David was required to use his inhaler, as he suffers from asthma. David asked the offender, “Why are you trying to hurt me?”.4

12.Upon attending at the room in which David and the offender were in, Emily was told by the offender that nothing was wrong, before he left the room. A short time later, the offender returned to the room, took David from the bed, moved him to another room and asked David to forgive him. At this time, David was crying. Upon seeing this, Emily woke up Oliver and the two of them went and removed David from the room. The offender then commenced to punch himself  in the head.        Oliver stopped the offender from hurting himself.5

13.

On or around 20 April 2020, Emily was in the kitchen when the offender walked up behind her holding a red pyjama belt/rope. Emily could see the offender from the reflection from the stove and she said “What are you trying to do?” without turning around. The offender put the belt/rope around Emily's neck.   Emily was able to hold onto the rope with her left hand and again asked him what he was trying to do. At that point, Oliver saw what was happening, ran out of his room and the offender let go of the belt/rope. After the incident, the offender said, “I’m just kidding, I’m just trying it out.” (Unlawful assault – Emily YANG). Emily sustained no injuries as a result of the offending, but was scared. 6

1  Statement of Oliver ZHU with amendments dated 7 July 2020, pg 1, depositions pg 122.

2  Statement of Emily YANG dated 6 July 2020, [8]-[9], depositions pg 35.

3  Ibid [11], depositions pg 35.

4  Statement of Oliver ZHU with amendments dated 7 July 2020, pg 2-3, depositions pg 123-124; Statement of Emily YANG dated 6 July 2020, [11]-[14], depositions pg 35-36.

5  Ibid.

6  Statement of Emily YANG dated 6 July 2020, [15]-[16], depositions pg 36-37; Statement of Oliver DU with amendments

dated 7 July 2020, pg 4, depositions pg 125.

14.On another occasion that occurred in either late April or early June, Emily was in her bedroom, sitting on her bed. The offender walked into the room, said something Emily can’t recall, before putting a string of walnuts around her neck, squeezing. This caused Emily to feel like she was suffocating. As she tried to take a deep breath, the offender let go. Emily told the offender that it was the second time he had tried to strangle her and the offender stated words to the effect, “I know, I’m just trying it out. If I wanted to do it do you think you’d be alive?”. (Assault with a weapon – Emily YANG).  Again, Emily did not sustain any injuries but she did have difficulty breathing at the time and was very scared. 7

15.On 9 June 2020, the offender asked Emily where an opal they had bought in 2012 was. Emily told the offender that the opal was with her  parents, in China. The offender became very worried and anxious and told Emily to contact her younger brother and ask him to deliver the opal to where the offender’s parents were within 3 hours. Emily telephoned her brother and whilst on the phone, the offender started scolding Emily and using foul language, which was directed at both Emily and her brother. The offender then located a sword, pulled in out of the scabbard and pointed it at Emily's neck, holding it there for 10 seconds. He did this twice (Assault with a weapon – Emily YANG).8

16.The offender said, “I will give you only 3 hours you must have that opal delivered to me.”  In addition, the offender said, “Don’t you think that I  wouldn’t dare kill you, I could kill you and then kill myself.” (Charge 1: Make Threat to Kill). Emily was very scared  by  this  threat.9  The  offender  then left the room.    Emily noticed that the offender appeared to be going a bit crazy, that he was crying, repeating what he just said and waving the sword at the wall of the stairway, causing marks on the wall.10

17.Oliver managed to take the sword from the offender, before hiding it in the laundry.

18.Before 10am on 11 June 2020, the offender was asleep in bed, when Emily alerted Oliver and said, “I can’t die for my children”.11 Emily recalls saying to Oliver, “I can’t die I have to live for my children”.12 At this time, Oliver called 000 after realising that Emily had taken all of her sleeping pills. Police were subsequently notified by officers from DHHS and attended the address just after 3pm. At that time, police members entered the property, with the permission of the offender. Police located the samurai sword in the doorway of the laundry, which was seized. A further hatchet and sword were located  in an upstairs bedroom (Possess Prohibited Weapon). At this time, police observed that whilst the offender’s behaviour was erratic, they deemed that he posed no immediate threat to himself or others.

7  Statement of Emily YANG dated 6 July 2020, [19]-[22], depositions pg 37.

8  Statement of Emily YANG dated 6 July 2020, [24], depositions pg 38; Statement of Oliver ZHU with amendments dated 7 July 2020, pg 5-6,

depositions pg 126-127.

9  Statement of Emily YANG dated 6 July 2020, [31], depositions pg 39.

10  Statement of Emily YANG dated 6 July 2020, [24], Depositions pg 38; Statement of Oliver ZHU with  4

amendments dated 7 July 2020, pg 5-6, depositions pg 126-127.

11  Statement of Oliver ZHU with amendments dated 7 July 2020, pg 7, depositions pg 128.

12  Statement of Emily YANG dated 6 July 2020, [33], depositions pg 40.

19.At about 6pm on the same day, the offender used a golf club to smash Emily's silver Mazda, registration 1BY1AM, that was parked at the address.  The offender also damaged the vehicle by kicking it (Charge 2: Criminal Damage). This offending was observed by a neighbour in the street.13 Police were called and attended the address at approximately 6.42pm.    Police observed the damaged vehicle and  located  the offender in his house.  On this occasion, police noticed that the offender was acting more erratic than he was earlier and that he did pose a threat to himself and/or others. The offender was sectioned under the  Mental Health Act 2014 and  taken  to  Maroondah Hospital for assessment.

20.The offender remained at the Maroondah Hospital Inpatient Unit until 10 July 2020. On that date, the offender was arrested, charged and remanded in custody at Melbourne Assessment Prison in respect to these matters.

21.Whilst in custody, the offender made a number of international calls to two persons, being Jin Fan ZHU.

22.During the period of 14 to 25 July 2020, the offender had numerous conversations with both persons, during which he essentially:

oasked her to direct Emily to withdraw the charges;

ostated that if the charges aren’t dropped, he will have a senior assistant make a phone call that will finish the whole family business;

ostated that if the charges aren’t dropped within a week, it will cost them;

ostated if the charges aren’t dropped, Emily should not go back to China;

odirects them to tell Emily that she will be detained as soon as she lands in China;

orefers to his illness, stating, “If you don’t get those nonsense 12 charges dropped  and  say  old  ZHU  wasn’t  aware   of   this illness; it’s due to misunderstanding, right away within a week. . ”

23.Specifically, the prosecution relies on the following comments made on the relevant dates:

14 July 2020 at 3.07pm to Jin Fan ZHU

ZHU:     You ask Yang Emily to do this. You ask Yang Emily to immediately withdraw 12 charges.

You listen to me. Let me finish. You let Yang Emily say (Indistinct) old Zhu wasn't aware of this illness, so angry at that  time,  it  became  like  this.  Now  quickly  (Indistinct)  police station. She's got someone, absolutely, I tell you. Ash her to give up, you say if you don't give up, if (name indistinct), (Indistinct) company, including your second auntie's company, (Indistinct) joint investigation, the Director  of  investigation  has  a  relation  with (name indistinct), with me, my senior assistant

13 Statement of Narin RODRIGUES dated 19 June 2020, depositions pg 47-48.

5

makes a phone call, your whole family will be finished, also you won't be able to go back to China. Old Zhu (indistinct), doesn't mind being detained, once coming out, do you still want to live, Yang Emily? You just say, (name indistinct) doesn't matter. Never mind  being detained. Now there is room for discussion, okay  to  discuss  anything.  If  you don't get those nonsense 12 charges dropped and say 'old Zhu wasn't 'aware of this illness; it's due to misunderstanding', right away, within a week, (name indistinct) let, let, let, (Indistinct), no idea how much it  will  cost, including your second auntie, including your family, including you Yang Emily, don't ever go back to China, you'll be detained as soon as you land in China. You just tell her this.

Recipient: If Yang Emily withdraws those 12 charges, are you able to come out?

ZHU:Hundred percent out. You tell Yang Emily to withdraw that quickly. If not, you (Indistinct) say old Zhu was framed up and sent to prison.

14 July 2020 at 3.46pm to Jin Fan ZHU

ZHU:     You tell Yang Emily this. (Indistinct) would be detained right away and it can't be resolved by spending 300,000 or 500,000. No idea how much it will cost. And you Yang Emily as soon as (Indistinct) would be detained right away.

24 July 2020 at 12.23pm to Jin Fan ZHU

Recipient:I understand. There  is another issue. Yang Emily said it wasn't up   to her. Police put through charges against you. She can't withdraw it. That's what she told me.

ZHU:    Yes, yes, yes, it’s police, she can’t take care of this. She threw me in. Why does she

care? Zhu Yingfang, why are you so dumb? You give Du Song a call.

25 July 2020 at 1.27pm to Jin Fan ZHU

ZHU:    Du Song, I tell you, you tell Du Song, I can't get out of the prison for the time being because of his sister's charge. You say, I won't harm him no matter what, but (indistinct) played this game and sent me into prison, if something happens to Du Song, I really can't save Du Song. Only if Du Song is arrested, once Du Song is arrested, then his father, his mother, if his parents' hearts burst, I really can't do anything about it. You ask him to speak to his sister. You know? Another thing, I ask you, did mum receive the (indistinct, possibly opal) from Du Song?

Arrest of the offender

24.      As indicated above, the offender was arrested by police on 10 July 2020, following his discharge from the Maroondah Hospital. No record of interview was conducted.

Maximum Penalties

25.Make threat to kill: 15 years imprisonment

26.Criminal Damage: 10 years imprisonment  6

27.Attempt to Pervert the Course of Justice: 25 years imprisonment

28.Unlawful assault: 3 months imprisonment

29.Assault with a weapon: 2 years imprisonment

Pre-sentence Detention

30.The offender has been in custody since his arrest on 10 July 2020. Accordingly, as at the plea date of 20 September 2021, there will be a total of 437 days available as pre- sentence detention.

Criminal History

31.The offender has no criminal history.

Victim Impact Statement

32.TBA

Forfeiture Order

33.A Forfeiture Order will be sought in relation to the samurai sword and other sword seized by police on 11 June 2020.

Compensation Orders

34.TBA

Chronology

Date	Event	Details
April – 11 June 2020	Offences committed	Offender detained under the Mental Health Act
10 July 2020	Arrested	Offender remanded in custody
14 September 2020	Filing Hearing
5 October 2020	Bail application commenced	Application adjourned for Forensicare Report to be obtained

5 November 2020	Bail application resumed	Application further adjourned to 10 November 2020
10 November 2020	Bail application concluded	Bail refused
26 June 2020	Committal mention	Listed for Committal Case Conference
14 January 2021	Committal Case Conference	Listed for Contested Committal
30 March 2021	Contested Committal	All witnesses cross-examined. Adjourned for submissions.
26 April 2021	Contested Committal	Charge 10 (criminal damage) withdrawn. Offender committed on the balance of the indictable charges and related summary offences transferred.
24 May 2021	Initial Directions Hearing	Adjourned for receipt of report from Dr Lester Walton
12 August 2021	Directions Hearing	Matter resolved, accused arraigned and guilty pleas entered.

Michelle Zammit Plea Prosecutor