DPP v Li

[2022] VCC 1699

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00683

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHENG LI

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JUDGE:	Her Honour Judge Ellis
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September and 21 September 2022
DATE OF SENTENCE:	10 October 2022
CASE MAY BE CITED AS:	DPP v Li
MEDIUM NEUTRAL CITATION:	[2022] VCC 1699

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              one charge of receiving payment of sexual services provided by a child-plea of guilty- no prior criminal history- family hardship not exceptional circumstance- burden of imprisonment-registrable offence

Legislation Cited:      Sex Work Act 1994, Sentencing Act 1991

Cases Cited:DPP v Borg [2020] VSCA 191,  R v Markovic[2010] VSCA 105; (2010) 30 VR, Worboyes v The Queen 589, DPP v Jeffries[2016] VCC 1398, Boulton v R[2014] VSCA 342; (2014) 46 VR 308

Sentence:                  Community Correction Order for a period of 3 years, with 400 hours of unpaid community work. Fine of $1000.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C. Pezzimenti	Office of Public Prosecutions
For the Accused	Dr T. Alexander	Kawakami Lawyers

HER HONOUR:

1Cheng Li, you have pleaded guilty to one charge of receiving payment for sexual services provided by a child, contrary to section 6 of the Sex Work Act 1994, which carries a maximum penalty of 15 years imprisonment.

Circumstances of Offending

2A detailed Summary of Prosecution Opening was tendered on the plea (Exhibit A). By way of background, you were authorised to act as a manager of a licensed brothel and had been since 2018. At the time of the offending, you were working as a manager at Heidelberg Angels, a brothel owned by your mother.

3The complainant in this matter is Raquel Tyler.[1] She was aged 16 at the time of the offending. She was living in a residential care unit which was overseen by what was the Department of Health and Human Services, now known as the Department of Families, Fairness and Housing (DFFH).

[1] A pseudonym.

4About 8 months prior to the offending, the complainant saw an advertisement on Facebook for an assistant dominatrix. She clicked on the advertisement and shortly thereafter a man known as Mike contacted her. Mike sent the complainant a message and later called her, after he obtained her mobile phone number. Mike asked whether the complainant had any identification.

5The complainant had a learner’s permit that showed her date of birth. She altered the date on her learner’s permit, using white-out and a permanent marker. She then took a blurry photo of the altered permit and sent it to Mike. The photos displayed the front and back of a learner’s permit with an altered birth year of ‘2092’.

6The complainant met with Mike once at another brothel in West Melbourne. The complainant discussed wanting to work in her local area. Mike asked Ms Tyler her age, and she replied that her 27^th birthday was coming up. The complainant exchanged her details with Mike and chose to use the name ‘Pixie’ whilst at work.

7The complainant would contact Mike by text message to tell him that she was available to work that night. He would arrange an Uber to pick her up and drive her to Heidelberg Angels. The cost of the transport was then later deducted from the complainant’s earnings.

8Ms Tyler worked only at Heidelberg Angels and was available for services as an assistant dominatrix and for fetish pleasers. The complainant was not required to complete any application paperwork or attend an interview, prior to working. The complainant told those at the brothel that she was 27 years old.

9The complainant mostly provided services involving the use of whips or other toys. However, clients could negotiate with workers and pay extra for other services including penetrative sex. Ms Tyler took part in penile/vagina sex on approximately five occasions. A co-worker was always present in the room on these occasions and also when the complainant provided services as a dominatrix. The complainant was paid in cash at the end of each night worked.

10On 3 September 2019, the Sex Industry Coordination Unit received information that a 16 year old female was working at the brothel. An investigation commenced and the complainant was later identified. A statement was obtained from the complainant. Police applied for a warrant to search the premises of Heidelberg Angels. At the time, you were the manager on duty. The police seized a number of items from the premises including a CCTV recorder and player.

11Within the CCTV footage, the complainant can be seen attending the brothel premises on multiple occasions.

12It is apparent from the footage that you were present on 27 August 2019. The CCTV depicts you on the premises speaking with male clients. The complainant can be seen arriving at the premises at 9:31pm. Within minutes, Ms Tyler can be seen apparently making an introduction to an unknown male.

13At 10:39, you can be seen escorting another unknown male to a room, and a minute later the complainant entered the same room. Each left the room at approximately 11:11pm, and at 11:22 you can be seen escorting a different male into the same room at 11:22. The complainant can be seen entering a minute later. Both left the room at 11:51.

14The complainant continued to attend at Heidelberg Angels over the next few days, though you were not present. Further CCTV footage depicts the complainant attending the brothel on 28, 29 and 30 August 2019.

15You participated in a police interview on 22 October 2019. You stated that you could not remember who ‘Pixie’ was. You described the manager’s role as dealing with the clients, letting them pick the worker and keeping the place safe. You also disclosed that as the manager you would collect payments from the clients and pay the workers. You said, if a guest picks a girl, the manager leads the guest to the room first and then the girl and tells the girl how long they will be working for. You said that when a new worker arrived, you would check their identification or visa to ensure they were able to work at the brothel. You denied that the brothel employed any workers under the age of 18.

Victim Impact

16A Victim Impact Statement was prepared by Ms Tyler and tendered on the plea (Exhibit B). This offending has had a profound impact on her. Ms Tyler describes that the crime has affected her outlook on life and she feels hopeless for her future. She notes that the events haunt her and that she experiences flashbacks. Ms Tyler has lost trust in people, has low self-esteem and finds it difficult to take care of herself. She states that she struggles to eat regular meals due to anxiety and she has difficulty sleeping. She states that she is exhausted, physically weak and emotionally burnt out. Ms Tyler describes that every aspect of her life has been affected by the offending and fears that she ‘may never heal’.

Procedural History

17You were charged with this offending on 26 March 2020 and a summons was issued. Your mother, and a further co-accused Mr Zhu were also charged in relation to offending involving the employment of Ms Tyler. The three of you were committed to this court on 1 April 2021 after a committal hearing, where no witnesses were called.  An initial directions hearing occurred on 31 May 2021, where dates for a s198A examination, Ground Rules and Special Hearing were set.

18After a number of adjournments, a Special Hearing was set down for May 2022. On that date, the Special Hearing was adjourned after parties indicated that resolution discussions were ongoing. At a Mention on 15 July 2022, parties indicated that the matter had resolved. A notice of discontinuance was entered in relation to the two co-accused. You were later arraigned and pleaded guilty to this offending on 29 July 2022.  You have not spent any time in custody in relation to this or any other offending.

Prior Criminal History

19You come before this court with no prior criminal history.

Personal Circumstances

20I was told something of your personal circumstances which were set out in written plea submissions and articulated further by your counsel, Dr Alexander during the plea hearing.

21You are now 35 years old. You were born in June 1987, in a small town in Liaoning Province, China. In 1990, when you were aged 3, your parents divorced. When your mother and father both remarried, you went to live with your maternal grandmother. In 1996, your mother moved to Australia to live. At this time, you continued to reside with your grandmother in China.

22In 2000, you came in live in Australia and were reunited with your mother. While in Australia, you attended University High School in Parkville and were a gifted student. During this period, your mother would work long hours so that she could financially support you both. She would leave home early in the morning and return late at night. You were reportedly supportive of your mother and assisted with house work where possible.

23In 2005, when you were in Year 10, your grandmother, with whom you had a strong connection, was diagnosed with cancer. She had raised you as a young child. You returned to China to care for her. You lived with your grandmother and would care for her when she was unwell, until she passed away in 2012.

24While in China, you continued your high school education and later attended university.  You graduated with a Bachelor of International Trade in 2010. Following your graduation, you obtained work in a claims department at a large insurance company. You met and married your wife, Nai Qi Zhang. You share two children together, a daughter and son, born in 2015 and 2017 respectively. You supported the family financially and at times worked two jobs in order to do so.

25Your mother continued to live in Australia during this period. In 2017, she decided to open an escort business. Your mother wanted a male to assist in the running of the business and help provide security, so she asked you to come to Australia. In October 2018, you and your family moved to Australia in order for you to assist your mother with her new business. In November 2018, you were granted an approved manager license to work in licensed brothels. In March 2019, your mother was granted a Sex Work Provider license, enabling her to open the brothel in Heidelberg West.

26You are reportedly very much responsible for the care of your children. Your wife provided evidence and a written statement to the court at the plea (Exhibit 2) to the effect that you are the primary carer for the children.  Your wife works at a pastry factory, approximately 6 days per week. You are responsible for cooking meals, completing house work and driving your children to school and other activities. According to your mother, who prepared a letter of support for you (Exhibit 1), your children mean everything to you. She describes you a devoted father and one who spends every spare moment with the children. A reference from your cousin also speaks to the role you play within your family. I understand that this cousin, Ms He, has returned from spending a considerable amount of time in China. Her presence in Victoria is somewhat contrary to the submission that you have no other family within Australia, however there is nothing to suggest Ms He has had any involvement with your children’s care over the last few years.

27Your son has a speech delay. A statement from your son’s speech pathologist, Michelle Jiang was tendered on the plea (Exhibit 3). Ms Jiang outlines that your son has a severe phonological disorder, characterised by phonological processes such as final consonant deletion, stopping, and cluster reduction, atypical speech and sound errors. Your son commenced fortnightly speech therapy in June of this year and has attended 5 sessions. You attend these sessions alongside your son and you have provided support throughout the sessions by interpreting your son’s communicative messages to the speech pathologist. It is not entirely clear why the speech pathologist requires your assistance in this regard. Ms Jiang recommends that your son remain engaged in speech therapy, in order to further support his speech development.  Your son attends kindergarten and a letter from his kindergarten teacher, tendered on the plea (Exhibit 4), indicates that he has achieved a lot in his language skills. He has made friends at kindergarten.

28Since this offending, you have been unable to work as the manager of the brothel. While it is not clear exactly when you ceased working at the brothel, your family now solely relies on your wife’s income. You have not obtained any other employment. It is also a little unclear what your financial position is. You and your wife apparently rent your home and have expenses of about $1300 per week. Your wife purportedly earns $800 per week. You have some money in your account, you own your own motor vehicle and you have $8000 in superannuation. According to your wife, if you were in custody she would need to cease work at the factory and she states she would be required to live on Centrelink benefits. The pressure on her, she says, would be enormous.

Nature and Gravity of Offending

29Receiving payment for sexual services provided by a child is a grave offence indeed. The seriousness with which this offending is viewed is reflected in the maximum penalty applicable. I accept that this offending occurred on a single day, and you are not to be sentenced for the conduct of others who actually hired Ms Tyler or for those responsible for the other occasions upon which the complainant provided these services.

30However, you were the manager of Heidelberg Angels. As such you carried with you the considerable responsibility of ensuring that individuals who were employed to provide sexual services, were adults. For whatever reason, you chose to ignore that obligation. At a minimum, you failed to ensure that the basic requirements of your role were fulfilled. Instead, you chose to make no enquiries to confirm that staff were over 18. Putting it generously, you turned a blind eye and in doing so, allowed a vulnerable 16-year-old child to participate in sex work for your financial reward.

31It was submitted on your behalf that all the staff employed with the brothel were safe and well looked after. Clearly this was not the case by virtue of the simple fact that you had a child working for you. This offence was created to ensure that those who might be inclined to prey upon or take advantage of young people, however willing they may seem, cannot do so. In this case whilst you may have only been present on this one occasion, and are therefore responsible for what occurred under your watch, your conduct was enough to cause considerable damage to the mental health of a very vulnerable young woman.

Relevant Sentencing Factors

32When it comes to passing an appropriate sentence there are a number of factors to which I must have regard. The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  I am required, pursuant to the Sentencing Act 1991, to take into account various factors when formulating an appropriate sentence in your case.  These include the seriousness of the offending, your culpability, the effect of your offending on the victim and your personal circumstances. I regard this offending as very serious.

33The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated.  I must have regard to protection of the community.  I also have regard to principles of parsimony. This requires that a sentence be no more severe than is necessary to achieve the purposes of sentencing for which it is imposed.

34Here general deterrence is of considerable importance. Other people who work in positions of responsibility within the sex work industry must understand that those who take advantage of underage sex workers will meet with the court’s condemnation and be punished accordingly. The court must send a message that this sort of offending will not be tolerated.

35You have no prior criminal history. Therefore specific deterrence is of less weight but it is by no means irrelevant. I am troubled by the apparent lack of appreciation you have for the seriousness of your offending. Although your plea of guilty is some evidence of your regret for your conduct, there appears to be very little other evidence of your remorse for this offending, or acknowledgement of the seriousness of what you have done and the impact this has had on Ms Tyler.

36The reference from your mother Ms Yang notes that you are very sorry, but goes on to comment that you have suffered so much already for what has happened. Indeed the remorse exhibited appears arguably to be in relation to the position in which you now find yourself. Specifically, that these charges have had an impact on your life and the delay in finalising these matters would have weighed heavily on you. Some of that delay is of your own making, though I accept the role that the pandemic has had with respect to that delay. Your wife, in neither her written statement nor in her evidence made any reference to any expression of remorse by you. Similarly, neither Wen He nor Mr Bowler make any mention of your offending or any feelings of remorse- only the impact of the offending on yourself. This is somewhat troubling and does not bode well when assessing your prospects of rehabilitation.

37Furthermore, I note that when you spoke with Corrections, whilst you did demonstrate some insight into your offending, you did suggest that to some extent it was out of your control. Thus it is open to me to conclude that you still have difficulties accepting the wrongfulness of your actions.

38Balanced against that, you have otherwise been of good character and your referees speak highly of you. Your cousin describes your kindness and how helpful you were upon her arrival into Australia. This is the first time you have come before the courts.

39I do take into account that there has been a delay and this would have impacted you, as it must have similarly caused considerable angst for Ms Tyler.

Family Hardship

40Your counsel has submitted that should you be sentenced to a term of imprisonment, your wife and children would endure significant hardship as a result of your absence. Specifically it is submitted by Dr Alexander that the hardship will concern caring responsibilities for your children, school pickups and drop-offs and in particular the significant role you play in assisting your son with his appointments for speech therapy. A term of imprisonment would require your wife to cease her employment in order for her to be able to care for the children properly and she is not sure how she would cope financially.

41Dr Alexander submits that this hardship is such that it amounts to an exceptional circumstance warranting a mitigation in your sentence. Your counsel referred me to a decision in DPP v Borg,[2] in which the responsibility for the care and upbringing of children was considered to amount to an exceptional circumstance.

[2] [2020] VSCA 191 (Priest, Beach, Niall JJA).

42Although I appreciate that a term of imprisonment would have a significant impact upon your wife and children, I do not accept that the circumstances of your role in caring for your children and providing support to your wife are exceptional. Although evidence was given that Ms Zhang works during the day and you have the responsibility for collecting your daughter from school and taking your son to his appointments, this is not exceptional. Sadly, many people with the care of children find themselves in a similar position and unfortunately alternative arrangements must be made. I do not consider your circumstances to be similar to or on par with those in the matter of Borg.

43As the Court reiterated in Markovicv R[3] although the court is not impervious to the consequences of a sentence upon other members of the family of a person in prison, such factors will need to be ‘exceptional’ or ‘extreme’ before the court will tailor its sentence in order to relieve the plight of those other family members.

[3] [2010] VSCA 105; (2010) 30 VR 589 (Maxwell P, Nettle, Neave, Redlich And Weinberg JJA).

44However I do accept that your time in custody if a term of imprisonment were imposed, would be more burdensome knowing that your children and your wife would have difficulties coping in your absence. I take these matters into account. Referring again to what the court said in Markovic:

An offender’s anguish at being unable to care for a family member can properly be taken into account as a mitigating factor – for example, if the court is satisfied that this will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of the offender’s prospects of rehabilitation.[4]

[4] Ibid [20].

Guilty Plea

45I take into account your plea of guilty. However, it was not a plea entered at the earliest opportunity. Indeed your plea has come about following a number of hearings and on at least one occasion, required the complainant to attend the remote witness facility and prepare to give evidence. This would undoubtedly have been extremely unsettling for her. I note however that the matter did not proceed as a contested committal and therefore at no stage have witnesses been required to give evidence. It appears as if your guilty plea has come about following the resolution of the matters involving your mother as co-accused. There may be a certain pragmatism about this but the reality is that had you accepted responsibility in an earlier point in time, you would have been entitled to a greater discount in sentencing.

46Nevertheless your plea of guilty has a significant utilitarian value albeit that it was not a plea at an early opportunity. You have spared the community the significant expense of a trial and importantly, you have spared the victim the ordeal of having to give evidence.  Your plea demonstrates a willingness to facilitate the course of justice.  It is also some evidence of remorse.

47Furthermore, as your plea was entered during the COVID-19 pandemic, it has an additional value. The court has faced a substantial backlog resulting from the suspension of jury trials and accordingly, as the Court of Appeal articulated in Worboyes v The Queen,[5] your guilty plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic’s effects.  Your plea of guilty should result in a perceptible amelioration of sentence, and I have taken this into account.

[5] [2021] VSCA 169.

48Dr Alexander has submitted on your behalf that a term of imprisonment is not necessary in the circumstances of this case. He submits that a community correction order would adequately address the objectives of sentencing. The prosecution submit that having regard to the seriousness of the offending here, a term of imprisonment is warranted, but any custodial term could be served in combination with a community correction order. The prosecution have referred me to a sentence imposed for the same offence in a matter of DPP v Jeffries,[6] however, I am of the view that the circumstances in that case are considerably different to this offending.

[6] [2016] VCC 1398.

49You have been assessed by corrections as suitable for a community correction order. You are assessed as low risk of reoffending, however a number of conditions are recommended including supervision and that you undergo programs to reduce your risk of reoffending.

50Given this assessment, and your lack of prior criminal history, I am satisfied that you still have very good prospects of rehabilitation, despite my reservations as to whether you truly appreciate the gravity of your offending.

51I have given careful consideration as to the appropriate sentence in this case. As I have already said your offending was serious and there is a real need to consider general deterrence and for the court to denounce your conduct. The question is whether I should impose a term of imprisonment in combination with the community correction order. Indeed offences of this nature do warrant such a disposition.  

52However, imprisonment must be a sentence of last resort. There must be no other sentencing disposition that could adequately address the sentencing objectives and reflect the seriousness of the offending. Ultimately I have come to the conclusion that a community correction order by itself can appropriately meet objectives of sentencing. In reaching this conclusion I have taken into account not only the seriousness of the offending and its impact on Ms Tyler, but your lack of prior criminal history, your plea of guilty, your personal circumstances and the impact that knowing your family would experience some hardship whilst you are in custody, would have on your time in custody.

53As the Court of Appeal made clear in Boulton v R[7], a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.

The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[8]

[7] [2014] VSCA 342; (2014) 46 VR 308. 

[8] Ibid [131].

54As I have said, I have given this matter careful consideration. Your offending is limited to a single occasion. Had the offending occurred beyond that evening, you almost certainly would have been going to jail today.

Sentence

55Accordingly, on the charge of receiving payment for sexual services provided by a child, you are you are convicted and placed on a community corrections order for a period of 3 years.  Additionally, I am imposing a fine of $1000. There will be a number of conditions of the CCO, including undergoing programs to reduce the risk of re-offending and you will need to perform unpaid community work.

·Specifically, you are to perform 400 hours of unpaid community work.

·You are to be under the supervision of a Community Corrections officer for a period of 3 years.

·You are to undergo programs to reduce the risk of re-offending. I understand this will be offence specific treatment determined by the Forensic Intervention Services.

56I order that some of the hours of treatment and rehabilitation can be counted as hours for the purposes of the unpaid community work condition - up to 50 hours.

57This is in addition to the core conditions of a community corrections order which include:

·you must not commit any other offence punishable by imprisonment during the next 3 years.  

·You must comply with any and all obligations and requirements.  

·You must report to and receive visits from Corrections.  

·You must report to your nearest designated community corrections centre, which will be in Ringwood, within two clear working days from today.  

·You must let a Community Corrections officer know within two working days of a change of address or job.  

·You must not leave Victoria without first getting permission, and

·You must obey all lawful instructions from Corrections.  

·They are all the mandatory core conditions that attach to any community correction order.

58Should you commit any further offences, should you fail to comply with any of these conditions, then the matter will likely be brought back before me, and you may be charged with a breach of the CCO. But more importantly, I would need to re-sentence you for this offending. You would most likely not be afforded any further opportunities. I would likely have no alternative but to jail you. Do you understand this? Do you understand the conditions as I have set out?

Sex Offenders Registration Act

59Because of this sentence, you have become a registrable sex offender. The offence of receiving payment for sexual services provided by a child is a Class 2 offence under the Sex Offender Registration Act 2004. This means that registration is mandatory for a period of 8 years.

60This means that you will be required, within 7 days from today, to report your personal details and begin a regime of annual reporting and be otherwise subject to the Sex Offenders Registration Act for the next 8 years.

61You will now be asked by my Associate to sign two documents. The first is your agreement to abide by the conditions of the Community Correction Order. The second is a form notifying you of your reporting obligations under the Sex Offenders Registration Act. Your counsel will assist you with these forms.

S 6AAA

62Pursuant to s 6AAA of the Sentencing Act, I note that had it not been for your plea of guilty (that is, if you had been found guilty after trial), I would have sentenced you to a term of imprisonment for a period of 2 and a half years, with a non-parole period of 15 months.