DPP v Zhang & Anor
[2019] VCC 139
•19 February 2019
IN THE COUNTY COURT OF VICTORIA AT MELBOURNE
CRIMINAL DIVISION
DIRECTOR OF PUBLIC PROSECUTIONS
v
GE ZHANG
and
DIRECTOR OF PUBLIC PROSECUTIONS
v
YU WEI XIE
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Revised Not Restricted
Suitable for Publication
Case No. CR-18-01482
CR-18-02066
JUDGE: HER HONOUR JUDGE HOGAN
WHERE HELD: Melbourne
DATE OF PLEA HEARING: 30 and 31 January 2019
DATE OF SENTENCE: 19 February 2019
CASE MAY BE CITED AS: DPP v Zhang & Anor
MEDIUM NEUTRAL CITATION: [2019] VCC 139
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty by both offenders to causing injury intentionally and by second offender to false imprisonment and by first offender to blackmail.
Legislation Cited: Cases Cited: Sentence:
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APPEARANCES: | Counsel | Solicitors |
For theDPP | Mr Albert | Solicitor for the Director of Public Prosecutions |
For the Offender Zhang | Mr P Dunn QC | Lethbridges |
For the Offender Xie | Mr M Tovey QC | Furstenberg Law |
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
HER HONOUR:
1Ms Ge Zhang and Mr Yu Wei Xie, you have each pleaded guilty to one charge of causing injury intentionally, which carries a maximum penalty of 10 years’ imprisonment. In addition, you, Mr Xie, have pleaded guilty to one charge of false imprisonment, which carries a maximum penalty of 10 years’ imprisonment and you, Ms Zhang, have pleaded guilty to one charge of blackmail, which carries a maximum penalty of 15 years’ imprisonment.
2The circumstances of your offending are summarised in the prosecution opening, Exhibit “A”. It is a lengthy document which propose to I append to these sentencing remarks. The circumstances are somewhat convoluted. The essence is as follows: Each of you are from Inner Mongolia and, independently, had come to Australia to study on a student visa. You met here in Australia and commenced a relationship in late 2015, approximately one year before the offending behaviour. You were living together, but the relationship was very turbulent and you frequently argued.
3On the evening of 2 December 2016, the two of you had an argument and, at approximately 10.00pm, Ms Zhang left the apartment and subsequently contacted the victim, Mr Jiaqui Qiu, who, like herself, was from China and a student at RMIT University. Ms Zhang arranged to meet the victim at a café and told him that she had just broken up with Mr Xie. Ms Zhang returned home and later messaged the victim and arranged to go to his apartment for a drink. Ms Zhang arrived at the victim’s bedsit apartment at 1.33am. She brought with her a bag containing sleepwear and personal effects. Ms Zhang and the victim drank wine together and she later changed into her pyjamas and went to bed. Ms Zhang and the victim had sex, during which the victim wore a condom. Shortly before 4.00am on 3 December 2016, Ms Zhang said goodbye to the victim and left his apartment. According to Mr Xie’s record of interview, Ms Zhang had messaged him about 4.00am, indicating that she
was near RMIT. He met her there and found her watching You Tube videos and stated that she was apparently unperturbed and hugged him a lot.
4On 4 December 2016, Ms Zhang contacted the victim on social media and told him “to forget what had happened” between the two of them and the victim removed Ms Zhang from his list of contacts.
5On 5 December 2016, Ms Zhang sent a message to the victim via the “WeChat” app. She claimed that he had raped her and needed to apologise. A number of messages were subsequently exchanged on this App between Ms Zhang and the victim.1 The victim responded by saying it was his fault and asking how he could make it up to Ms Zhang. Ms Zhang asked him why he forced her in spite of her resistance and the victim said he lost control, but Ms Zhang did not use much force to stop him. Ms Zhang went on to state that the victim had said he liked her and why did he treat her like that and completely ignore her for days and how could he reconcile with his girlfriend. Ms Zhang suggested the victim could break up with his girlfriend and take his responsibility, noting that she was going back to Melbourne alone. Amongst other things, Ms Zhang inquired whether the victim did not have any feeling for her at all.
6Between 5 December 2016 and 9 December 2016, there were multiple messages between Ms Zhang and the victim. On a number of occasions the victim denied that he had raped Ms Zhang and stated that she was going to extremes. At one point Ms Zhang messaged the victim: “I’m struggling with an uneasy conscience, not only from my boyfriend, but also feeling guilty for your girlfriend”. In one message Ms Zhang stated that she needed to apologise to her boyfriend (Mr Xie) “because (she) doesn’t want the sting of conscience and (she) has done something to hurt him”. Ms Zhang was demanding an apology from the victim to herself, her boyfriend and the victim’s girlfriend.
They agreed to meet to talk on 6 December 2016. The victim was not wanting to meet in his home, but ultimately agreed to do so.
7On 6 December 2016, Ms Zhang attended the victim’s apartment at approximately 6.00pm. She told the victim that he should apologise to Mr Xie because she had not broken up with him when she and the victim had sex, and, if he did not apologise, she would tell the victim’s girlfriend and Mr Xie that the victim had raped her. She demanded that he get down on his knees to apologise, which the victim did, and Ms Zhang took a photograph of him in that position. The victim told Ms Zhang that he did not wish to have Mr Xie attend his apartment because he was concerned there could be violence.
8Unknown to the victim, Ms Zhang had been messaging Mr Xie since approximately 5.00pm, urging him to also come to the apartment.2 After resisting for some time, Mr Xie agreed to attend. On the way to the victim’s apartment, Mr Xie purchased a bottle of chili powder.
9At 7.23pm Mr Xie arrived at the apartment building and Ms Zhang pressed the buzzer to enable him access to the second floor and then opened the door to Mr Xie. Mr Xie then ran at the victim and threw chilli powder in his face and hit him with his fists and kicked him. The blows knocked the victim to the ground and he covered his head to protect himself, but he was kicked multiple times by Mr Xie to the head and body, as Mr Xie shouted that he would kill him. Mr Xie told the victim to take off his pants so he could kick him in the genitals and Ms Zhang told the victim to do as Mr Xie said. The victim realised that his head was bleeding and told Ms Zhang and Mr Xie to leave his home and stop attacking him. He told them that he would call police and that he needed a doctor.
10Mr Xie again began attacking the victim, who escaped into his bathroom and pushed up against the bathroom door to prevent it being opened. The victim
called out that he was bleeding to death and needed to call “000”, while the door was kicked and Mr Xie stated that the victim could stay in the bathroom until he died and he should come out and let him kick him in the genitals and he would call an ambulance.
11The victim remained hiding in his own bathroom for two or three hours while Ms Zhang and Mr Xie remained in his home. Ms Zhang accessed the victim’s computer and located an email address for his girlfriend. She sent an email to the victim’s girlfriend, asking her to attend the victim’s apartment and attached the photo she had taken of the victim on his knees. This was done using the victim’s phone. The victim’s girlfriend called Ms Zhang, who told her that she had had sex with the victim, and if she wanted to know more, she should come to the victim’s apartment. The victim’s girlfriend arrived at the apartment at 10.08pm. She witnessed Ms Zhang and Mr Xie beating on the bathroom door and shouting that they would kill the victim because he had raped Ms Zhang. The victim was in the bathroom yelling for help. They remained for about 30 minutes then left and returned for a brief period of time and then left again.
12The victim’s girlfriend gave him her phone and he phoned “000” complaining that he had been assaulted with what he thought was a glass and that he was bleeding from his head and his head felt heavy. He stated that he had been locked in his bathroom for some three hours and he thought he needed an ambulance because his head hurt.
13The victim was subsequently taken to hospital by ambulance and was treated for a 2 centimetre long laceration to the top of his head that was 3 to 4 millimetres deep and required some three stitches. He also had minor injuries to his arms and legs.
14The day after the assault and false imprisonment of the victim, Ms Zhang contacted the victim’s girlfriend asking to meet her so that she could give the
victim’s phone to her, as she had taken it with her when she left the victim’s apartment with it. Ms Zhang told the victim’s girlfriend that the victim had raped her. When the issue of him having used a condom was raised, Ms Zhang became angry and threatened to break the victim’s reputation and email everyone and tell them that he had raped her. Ms Zhang also asked about the victim’s financial position, with an indication that thousands of dollars of compensation would need to be paid by him, otherwise his reputation would be ruined.
15On 7 December 2016, Ms Zhang continued to text the victim indicating “I reserve my right to sue you for raping.” The victim repeatedly denied having raped her and Ms Zhang challenged him to settle it privately or go to court. The victim stated that he had only $1,500, if she wants it, but not to harass his girlfriend again. Ms Zhang stated that she wanted $5,000 in exchange for his future and threatened to ruin the victim’s reputation at school. The victim again offered $1,500 if Ms Zhang would stop harassing his girlfriend.
16On 8 December 2016, Ms Zhang messaged the victim: “I give you three days to get the money $,3000, not a cent less” and the victim responded, “You’re blackmailing me. What I did wrong is only making love with you. I didn’t rape you.”
17The messages continued through to 9 December 2016 when the victim repeated that he wanted Ms Zhang to promise that she and her boyfriend will never harass him or his ex-girlfriend again. Ms Zhang declined to give any promise in writing and stated that she is only asking for $1,700 and she has sent a text message to the victim’s girlfriend. Ms Zhang later messaged the victim that, if he wants something in writing, then he must pay $3,000. It is the threats accompanied by a demand for money from 7 to 9 December 2016 that comprise the charge of blackmail.
18On 9 December 2016, Ms Zhang and Mr Xie reported to police that the victim
had raped Ms Zhang. Mr Xie asked police whether financial restitution could be obtained from the victim and Ms Zhang indicated that she wished to commit suicide and was taken to hospital for assessment prior to her completing her report. She did not complete a statement until 1 March 2017. Ultimately, further police investigation into Ms Zhang’s rape complaint was not authorised.
19The victim reported the offending conduct of Ms Zhang and Mr Xie to North Melbourne Police Station on 9 December 2016. He made a formal statement to police on 15 December 2016 and a further statement on 27 December 2016. On 26 December 2016, Ms Zhang and Mr Xie were independently arrested and interviewed. A summary of those interviews is contained in Exhibit “A”.
20Ms Zhang continued to maintain that she had been raped by the victim. She admitted that, if she could get the victim to apologise, then she and Mr Xie could get back together again. Notwithstanding her claim of rape, she thought that she would be safe to go the victim’s apartment on her own. She was unable to explain why she did not leave the apartment if, as she claimed, she became scared and had secretly messaged Mr Xie to pick her up. The latter claim is untruthful, given that Ms Zhang had been messaging Mr Xie persistently for almost two and a half hours before Mr Xie arrived at the victim’s apartment, urging Mr Xie to go there as well. Ms Zhang claimed she did not know whether the victim had been bleeding and could not recall the exact detail of the fight.
21Contrary to the messages in Exhibit “D1-9”, Ms Zhang claimed that the victim had offered to pay her $3,000 if she would write a letter of guarantee not to go to the police. She considered herself and Mr Xie to be the victims and told police that she had told the victim that she could report him to the police or they could sort it out privately and she had subsequently asked him for
$5,000.
22Mr Xie, in his interview with police, stated that his relationship with Ms Zhang was awful and she would, at times, physically harm herself and him and had previously threatened to commit suicide by jumping off a building. It was in the context of he and Ms Zhang arguing that Ms Zhang had told him that she had been raped by the victim. Ms Zhang had said she wanted to kill the victim. On 6 December 2016, Ms Zhang told him she wanted to commit suicide with the victim and gave him details of the victim’s address. He bought a container of chilli powder on his way to the victim’s apartment because he had heard that police use it to stop people. Contrary to Exhibit “D2-4”, message 252, Mr Xie told police that he thought that the victim would have given him permission to enter. Mr Xie claimed that the victim and Ms Zhang were struggling at the doorway and that he pushed the door and entered to save Ms Zhang. He stated that the victim kicked him twice in the hip and he threw chilli powder in his face and grabbed him and repeatedly struck him on the head with the bottle of chilli powder. He maintained he was acting in self-defence. Mr Xie claimed that the victim wanted to clean himself up and went to the bathroom and locked the door. He stated that he had kept knocking on the door and telling the victim to come out and fight him as bluff to placate Ms Zhang, and the victim was shouting loudly for a doctor and shouting “help”. Contrary to the messages in Exhibit “D1-9”, Mr Xie claimed that the victim had approached Ms Zhang to pay her to prevent her from going to the police. Mr Xie denied that the victim was ever threatened with damage to his reputation if he did not pay the money.
23Both of you were charged on 26 December 2016 with more offences than those to which you have pleaded guilty. It appears there was some delay in all of the material relied upon by the prosecution being served upon yourselves, but all relevant material had been served by November 2017. There was some change in legal representation as you had initially engaged
the same solicitor. Ultimately, on 19 July 2018, you, Ms Zhang, offered to plead to the charges on the indictment. Then, on 10 October 2018, you, Mr Xie resolved to plead guilty to the charges on the indictment. The prosecution acknowledges that, although they are not the earliest possible pleas of guilty, in the circumstances, they are early pleas of guilty.
24Ms Zhang, even if you had been raped by the victim, you had no business taking the law into your own hands by facilitating Mr Xie’s access to the victim’s apartment and standing by supporting him while he assaulted the victim and ultimately engaging in blackmail of him. In his written and oral submissions, your counsel did not submit that the Court should find that you had been raped as a mitigating factor. Rather, it was submitted that you believed that you had been taken advantage of due to alcohol and believe that you were sexually assaulted.
25On the material before me, I am not surprised that an investigation into your allegation of rape against the victim was not authorised. Much of the material indicates that you are not a witness of truth in relation to a variety of matters. It appears that the allegation of rape was first made in the context of an argument with your boyfriend, Mr Xie. This seems to have taken place sometime after you and Mr Xie left for a pre-arranged trip to South Australia on 3 December 2016. Mr Xie appears to have been critical of you for having cheated on him. The allegation of rape appears to have been raised in the context of you trying to save your relationship with Mr Xie. You then engaged in melodramatic behaviour, threatening suicide while in South Australia. Police were called and you were taken to hospital on 4 December 2016. You were mentally assessed overnight but, meanwhile, Mr Xie had returned to Melbourne. It was against this backdrop that you messaged your victim on 5 December 2016, claiming that he had raped you. No material from your inpatient stay in South Australia, or from your hospitalisation in Melbourne after you and Mr Xie made a complaint to police, has been put before the
Court.
26The material before me suggests that you are a very self-focussed person, capable of very manipulative behaviour by threatening to harm yourself. Your offending behaviour is very vindictive. Not only were you instrumental in having Mr Xie attend the apartment, and supported him while he assaulted your victim, but you threatened to destroy your victim’s reputation at RMIT, where you both attended, and ensured that his girlfriend knew that he had had sex with you so that she would break up the relationship with the victim. I consider that you showed signs of emotionally unregulated behaviour in various of your messages both to the victim and to Mr Xie. Your counsel, rather aptly in my view, described the whole scenario as being like a soap opera. However, it is much worse than a soap opera because it was not a fantasy but a real life and impacted adversely on the life of your victim and his girlfriend, as well as for Xie whom you dragged into your criminal behaviour.
27Exhibit “D2-4” shows that from 5.02pm on 6 December 2016, you persistently messaged Mr Xie, trying to manipulate him into attending the victim’s apartment to suit your purpose of revenge. When he expressed reluctance to do so, you gave him an ultimatum that, if he was not there in 10 minutes, he should “wait to make headlines” and spoke of him “sending [you] onto the road of death”. You then began a countdown, telling him he was running out of time and forcing you to die. He was at his place of employment with a client and you stated “Is your client more important than my life?”. As the time of 6.00pm drew close, you threatened to die with your victim and kept up the pressure of messages to Mr Xie, until he finally relented and at 6.45pm told you that he would come. By this stage, you were already in the victim’s apartment.
28My overwhelming impression of the material before me is that you see yourself as a victim. You have now been counselled for some two years by
both a counsellor from CASA and a psychologist from Orygen Youth Health who, on the basis of your history to them, have accepted that you are a victim. Ms Kathryn Moran from CASA, in reports dated 21 March 2018 and 25 January 2018 (Exhibit “D1-3”), states that she has seen you once a week or once a fortnight since March 2017 and, when she first met you, you showed clear signs of post-traumatic stress symptoms, depression, anxiety, suicidal ideation, flashbacks, nightmares, hypervigilance and intrusive thoughts of sexual assault, entirely consistent with being the victim of a sexual assault. Ms Moran’s report lacks objectivity, in my view. She inappropriately states in her opinion that she believes you were the victim of a sexual assault. She goes on to state that it is her experience that it is common for victims of sexual assault to feel violent towards the perpetrator, but you were different in that you are not concerned to be violent and not out for revenge. However, the assault upon the victim, which you instigated and encouraged, was violent, and your blackmail was certainly vengeful.
29Ms Moran is clearly not in possession of all of the material that is before the Court. In a second report, which is largely a replication of her first, she notes that your mental health has deteriorated recently and you are currently experiencing acute suicidal ideation due to the impending sentencing hearing. She states that you are very motivated to engage in the therapeutic processes and are “reflective and repentant about [your] actions”. Nowhere in her report does she state in what way you are reflective or repentant about your actions.
30Ms Jessica Mitchell, senior clinical psychologist with Orygen Youth Health, states in a report tendered as “Exhibit D1-2” that Ms Moran referred you to her on 28 January 2018. She took a history that you reported to Royal Melbourne Hospital Emergency Department on 10 December 2018 (sic), after having reported the alleged rape to the police. You had suicidal ideation with a plan and self-harming behaviours, and were discharged to CASA. You have since engaged in regular weekly case management and Cognitive Behaviour
Therapy to reduce, what she says, is daily Post-Traumatic Disorder symptoms and management of suicidal ideation. She describes you as a vulnerable young woman due to the trauma you have experienced and subsequent limitations that your legal stressors have placed on your studies and connection with your family, perpetuating a sense of hopelessness. She states that you report daily worry about your capacity to remain living and studying in Australia, which perpetuates your current diagnostic concerns and suicidal ideation. Like Ms Mitchell, she states that you have expressed “appropriate grief around the circumstances leading to the offences”, without in any way elaborating upon what this means. Nowhere in this report, as with the CASA report, is there any convincing expression of remorse about your offending behaviour. It seems to me that your primary concern is the impact upon your own life, which has resulted from the offending behaviour.
31A Psychological Risk Assessment Report provided by Dr Rachel Campbell of Forensicare, dated 13 October 2018, was tendered as Exhibit “D1-1”. Under the heading “Client’s Account of the Index Offence”, there is a history that you gave to Dr Campbell which, amongst other things, refers to you being worried that your partner, Mr Xie, would end your relationship because of what had transpired at the victim’s apartment. It goes on to state: “Although feeling unsafe, Ms. Zhang said she agreed to meet with Damon (the victim) at this apartment”. What follows is, then, in my view, an untruthful account of what occurred at the apartment, including that you were screaming at the victim and Mr Xie to stop the altercation and that, in the ensuing two hours, you pleaded with Mr Xie to leave the apartment and seek medical treatment for his injured leg, but he refused to do so until the victim’s girlfriend attended and she had been told about the alleged sexual assault. This does not sit well with the evidence that you accessed the victim’s computer and sent an email to the victim’s girlfriend, with the photo that you had taken of the victim prior to Mr Xie arriving at the apartment.
32Dr Campbell’s history then goes on to record that it was the victim who had requested that you not report the sexual assault to police and that Mr Xie had been responsible for many of the messages sent to the victim, albeit that they were from your phone. You appear to be blaming anyone other than yourself for what occurred, yet you claim that you “regretted [your] actions”. Earlier on in the report, at paragraph 5, it stated: “Ms. Zhang demonstrated insight into her offending and spoke with regret about her actions”. There is no elaboration of that insight, or about any concern for your victim, but only about the consequences of your actions in terms of the legal implications on your career and the emotional and financial strain it has placed on your family in China.
As with the authors of the previous reports to which I have referred, I consider that Dr Campbell does not have an accurate history and is not in possession of much relevant material that has been placed before the Court. On the basis of their inaccurate and incomplete histories, I could not be satisfied on the balance of probabilities that you suffer symptoms of Post-Traumatic Stress Disorder or suicidal ideation due to what transpired between you and the victim in the early hours of 3 December 2016. Indeed, it was not urged by your counsel that I should do so. Nor do I accept that there is any convincing evidence that you are remorseful for your actions.
33In a plea on your behalf, Mr Dunn of Senior Counsel told the Court that you are now 24 years old, having been born in Inner Mongolia on 3 October 1994. You came to Australia in November 2015, aged 21 years, on a student visa to study nursing. Your mother came with you to settle you into Australia and you were met by Mr Xie, who had been to the same high school as yourself in Inner Mongolia. He was the only person you knewin Australia and you soon commenced a relationship with him and began living with him in February of 2016. Mr Dunn asked the Court to accept that your behaviour occurred in the context of being young and immature and finding yourself in a situation of
emotional distress involving conflict with Mr Xie in a foreign country and being away from the guidance and help of your family.
34I accept that in the days following the evening that you had spent at your victim’s house, your stress escalated when you argued with Mr Xie about what had occurred with the victim to the point where you threatened to suicide and ended up in hospital overnight, alone in South Australia, while Mr Xie returned to Melbourne. I accept that at the age of 22, being away from your home country for the first time in your life and feeling that you had lost the one supportive relationship that you had in the country, namely that with Mr Xie, you were feeling alone and very distressed. The victim’s initial response to your allegation against him, that he was at fault, seems to have been seized upon by you to make you believe that you were a victim and you became angry and felt further vindicated when the victim said he would make an apology. However, it seems to me, upon looking at all the relevant messages, that this offer to apologise was most likely related to his realisation that he had had sex with you when, contrary to what you had represented to him, you had not broken up with your boyfriend, Mr Xie.
35Mr Dunn stated that, after your were charged with these offences on 1 March 2018, you were arrested and placed in Maribyrnong Detention Centre because of your visa status and remained there in detention until 16 May 2018. I have no doubt that this would have been a deeply confronting situation for you, away from family support and with the unknown consequences of these legal proceedings hanging over your head. Whatever reservations I may have about the report of Ms Moran, concerning the cause of any psychological condition from which you were suffering, I accept that, up until that time there had been a significant improvement in your mental state, but you regressed upon being detained. This was due to your deprivation of liberty and you were very fearful, being someone who had no prior contact with the criminal justice system at all.
36In sentencing you, I take into account that you have pleaded guilty to the offences and that this was a relatively early plea entered without any committal proceedings having been conducted. I accept that, had the matter gone to trial, there would have been a deal and time and expense involved, particularly given that a Mandarin interpreter would have been required in relation to the translation of various messages sent on WeChat between yourself and the victim and yourself and Mr Xie. Although I am not satisfied that you have any remorse, you are entitled to a meaningful discount on the sentence by reason of your plea of guilty.
37There has been some delay since the commission of these offences on 6 December 2016. I take that delay into account in that you have suffered mental anguish in knowing the outcome of these legal proceedings. Also, you have not offended again and have tried to make something of your life by transferring from the Bachelor of Nursing course (in which you were unable to complete a practical placement because of these charges) to a Bachelor of Business (Accountancy) at RMIT. Last year where you successfully completed four units of the course (Exhibit “D1-6”). In addition, you have done some volunteer work with the Salvation Army of an indeterminate extent in November-December 2018 and also with a Red Cross pop-up shop on 16 June 2018 (Exhibit “D1-5”). Further, your current visa conditions have permitted you to work over the university vacation for up to 20hours per week and Mr Dunn stated that you have done some work in an Asian grocery, albeit that the extent of that work was not made clear.
38Tendered as Exhibit “D1-10” was an email addressed to your solicitor from Ms Vanessa Bleyer, an Australian lawyer and registered migration agent, dated 29 January 2019. This expressed Ms Bleyer’s advice that, if the Department of Home Affairs is given any evidence that a visa holder has committed any criminal offence, the Department will generally issue a notice of intention to consider cancellation of the visa under either the character
provision or under general cancellation provisions. It is plain that, pursuant to the provisions of s501 of the Migration Act, there is a certainty of cancellation of your visa if you are sentenced to a term of imprisonment of 12 months or more, but any term of imprisonment may result in you failing the character test and in Ms Bleyer’s view this will most likely result in cancellation of your visa. She expresses the view that if you receive a Community Corrections Order with conviction, in the current climate of low level of tolerance towards any criminal behaviour, the Department will likely cancel your visa, although there is some chance that it would not be cancelled if you do not receive a term of imprisonment.
39In the event that I accede to Mr Dunn’s sentencing submission that you should receive a Community Corrections Order, this would potentially result in the exercise of the Ministerial discretion under the Migration Act to cancel your visa. The law is clear that such a risk cannot be taken into account unless it is capable of sensible quantification and further, that deportation would cause hardship. Where the Minister may or may not exercise his discretion to cancel your visa, the risk of deportation cannot be quantified. Hence, the possibility of deportation cannot be taken into account by a sentencing court, However, you came to this country hoping that you would undertake training as a nurse here and your parents have invested a great deal of money to achieve that education. I accept that you have been suffering the anxiety of not knowing whether you will be able to continue your study, here. You still hold hopes of transferring back to nursing from the accountancy course. In sentencing you, I take this anxiety into account.
40Ms Zhang, you should be in no doubt as to the seriousness of your offending.
Courts must make it plain that anyone who attempts to take the law into their own hands will be punished in order to discourage others from such behaviour. In sentencing for these offences, the Court must denounce your conduct and place emphasis upon general deterrence and just punishment. I
have trouble reconciling the character traits referred to in a reference from a friend who has studied with you at RMIT since February of 2016 (Exhibit “D1- 7”), that you are caring and religious, with the offending behaviour. The report of Dr Rachel Campbell refers to you as impressing as young, shy and vulnerable, but of course Dr Campbell was not privy to the threatening content of your messages to either your victim or Mr Xie, which were very demanding, aggressive, self-righteous, self-pitying, manipulative and histrionic (insofar as they referred to your death being a consequence of non-compliance with your requests). However, I accept Dr Campbell’s opinion concerning your risk of re-offending. She considers that your profile indicates that you currently possess only one clinical factor which may increase your risk of future violence, in that you demonstrate partial evidence for symptoms of Major Mental Disorder and that you are likely to experience ongoing difficulty with stress or coping, even though you have been utilising professional support services. She concluded that there is no evidence of current major mental illness or severe personality disturbance and that you are at low risk of committing future violent offences. I also note that Dr Campbell indicates that, were a custodial sentence to be imposed, your mental state and risk of self- harm would need to be closely monitored. This concern is referred to, also, by Ms Mitchell, and Ms Moran has referred to acute suicidal ideation leading up to the sentencing hearing.
41I must also take into account the effect of the offending upon your victim. It is clear from his Victim Impact Statement, Exhibit “B”, made on 25 October 2018, that the impact upon him was not confined to a cut on his head requiring three stitches. The conduct of yourself and Mr Xie struck at the very heart of the victim to feel secure in his own apartment and it is plain that he still suffers significant psychological consequences of your offending behaviour. He describes feeling hopeless and fearing that his life was going to be ruined, breaking up with his girlfriend, suffering disturbed sleep and
losing a lot of weight. The internship which he needed to complete for his qualification should have taken him three months, but eventually took him nine months because he suffered such broken sleep and stress and he ultimately was not considered for paid work by the employer with whom he had done the internship. He still suffers nightmares and feels tense and anxious and suffers a reduced capacity to socialise. In addition, he suffered financially in that he had to pay $1,500 for an ambulance, as well as emergency treatment due to his international student status. These are understandable and foreseeable consequences of the offending conduct of yourself and Mr Xie.
42Ms Zhang, although on its face your offending warrants a term of imprisonment, after taking into account your pleas of guilty, youth, immaturity and lack of support here in a foreign country as well as a lack of prior and subsequent offending, I have concluded that a term of imprisonment is not the only appropriate sentence. I have received a report assessing you as suitable for a Community Correction Order and that is the disposition which I propose to make. However, I must say I have some reservations about your ability to successfully complete it.
43The material before me indicates that you are someone who responds to stress with emotional extremes whereby you threaten self-harm or suicide, as already mentioned, and Ms Moran’s most recent report describes you as currently experiencing acute suicidal ideation due to the impending sentencing hearing and the ramifications of this on your life. As your counsel, Mr Dunn, emphasised, you are very alone here in Australia as your relationship with Mr Xie finally terminated in May 2017. Shortly after that, your family arrived here from China to support you from August to November 2017. You had no family or friends in Court to support you. The only person present appeared to be a counsellor.
44All of the reports to which I have referred describe you as vulnerable and
young. You appear to have become very dependent upon support on a weekly or fortnightly basis from the CASA counsellor and very regular appointments with the psychologist at Orygen, whom, you are currently seeing once per week. Ms Moran states that you are very motivated to engage in the therapeutic process, but this seems to have been directed towards addressing your needs as someone who sees yourself as a victim. I see no convincing evidence that you have addressed anything in your makeup that caused you to engage in this offending, which seems to me to be primarily due to your immaturity and a needy and demanding nature, with a tendency to act out in an emotionally extreme way when stressed. These traits appear to be still present and, in order to remain in Australia, you are likely to require a very heavy reliance on support services and counselling because you are so isolated. The material before me indicates that you are entrenched in your role as a victim and I consider that it is unlikely after this period of time that you will be convinced otherwise. Thus, notwithstanding that you have pleaded guilty to the offences, Given the skewed histories in psychological reports, even as recently as October last year, I am not convinced that you actually have insight into your culpability for the offending behaviour.
45Please stand up Ms Zhang.
46On Charge 1, causing injury intentionally, you are convicted and sentenced to undergo a Community Correction Order for a period of 1 year.
47On Charge 3, blackmail, you are convicted and sentenced to undergo a Community Correction Order for a period of 3 years.
48The core terms of each Community Correction Order are as follows:
(a)you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(ab) you must comply with any obligation or requirement prescribed by the
regulations;
(b)you must report to, and receive visits from the Secretary during the period of the order;
(c)you must report to the community corrections centre specified in the order within 2 clear working days after the order coming into force;
(d)you must notify the Secretary of any change of address or employment within 2 clear working days after the change;
(e)you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
(f)you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that the offender complies with the order.
49In addition, the following condition is imposed:
50In relation to the Community Correction Order imposed on Charge 1, you are to perform 100 hours of unpaid community work. In relation to the Community Correction Order imposed on Charge 3, you are to perform 200 hours of unpaid community work.
51Although the period of the orders are to run concurrently, making a total period of 3 years, I order that the condition of 100 hours of unpaid community work on Charge 1 be cumulative upon the condition of 200 hours of unpaid community work on Charge 2. Ms Zhang, this means that you must complete the 100 hours on charge 1 within 12 months. The 200 hours on charge 3 must be completed within 3 years.
52Ms Zhang, you must understand if you contravene a Community Correction Order, then that, in itself, is an offence punishment by 3 months’
imprisonment.
53I am not able to make such an order unless you consent to it. Do you agree to undertake the Community Correction Orders with the terms and conditions that I have just read out?
MS ZHANG:
54 Yes, Your Honour HER HONOUR:
55Pursuant to s6AAA of the Sentencing Act, I state that were it not for your pleas of guilty the total effective sentence would have been 2 years’ imprisonment with a non-parole period of 1 year.
56Pursuant to s464F(2) of the Crimes Act 1958, I order a forensic procedure for the taking of a scraping of the mouth in accordance with sub-division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I consider this order is warranted by reason of the seriousness of the circumstances of the offending as well as the fact that it is not opposed by you.
57Ms Zhang, you need to understand that if you do not consent to the taking of the swab of saliva from inside your cheek by an authorised member of the police force, then police may use reasonable force to enable that forensic procedure to be conducted.
58Pursuant to s33(1) of the Confiscation Act 1997, I order that one Apple iPhone 6S be forfeited to the Minister.
59Mr Xie, you are presently aged 25 years, having been born on 1 June 1993.
60In a plea on your behalf by Mr Tovey of Senior Counsel, the Court was told that you were born in Inner Mongolia where you were a very good student,
who finished Year 12 in the top 20 per cent of your high school, which was one for students of superior academic performance. After completing school, you came to Australia in 2011 on a student visa. You were then aged 18 years. You spent six months in Perth improving your English skills and then undertook a foundation studies program at the University of Sydney with emphasis on English and achieved good results. During this time you supported yourself by undertaking part-time work. In 2013 you moved to Melbourne where you undertook a Diploma of Business, which you completed in 2014 with very good results including a number of high distinctions and distinctions. You settled well into Melbourne, lived in a group house and developed an interest in fitness, particularly related to nutrition, and undertook a course at a local gymnasium. You had a relationship of approximately one year’s duration with a young woman prior in time to meeting your co-accused, Ms Zhang.
61In 2015 you enrolled in a Bachelor of Business at Monash University. Your counsel stated that you did reasonably well in this course initially prior to meeting Ms Zhang in September 2015. He stated that you and Ms Zhang travelled back to China together in December 2015 and January of 2016. At that time, Ms Zhang became embroiled in conflict with her mother and father and, by the time the two of you returned from China, Ms Zhang was depressed and emotionally disturbed. Thereafter, your relationship took on a tumultuous nature, with Ms Zhang exhibiting behaviour which was immature and emotionally extreme. According to the history you gave to Mr Cummins, forensic psychologist, who provided a report dated 29 October 2018,3 it became apparent to you that Ms Zhang had mental health problems and she told you that she had an obsessive compulsive personality disorder for which she frequently threatened to take her life and in relation to which she stated that she had been attending a psychologist. In the context of the difficulties in
Exhibit “D2-5”
your relationship with Ms Zhang, your grades at Monash University suffered and, by the end of 2016 you were not performing to the requisite standard and the University declined to permit you to continue the course. You then undertook courses to qualify for various certificates in fitness (Exhibit “D2-2”) and ended up working as a personal trainer with a particular focus on children and adults who had a disability, illness or injury. You had regular clients and would also sub-contract to the Anytime Fitness Gym in Bourke Street, and you worked 15 to 20 hours per week.
62Mr Tovey stated that, because of Ms Zhang’s increasingly erratic behaviour, you had really wanted to end the relationship in 2016 but were concerned about her naivety and fragility. You were apparently ambivalent about whether she had been raped by the victim, but some of the earlier messages on WeChat from him to Ms Zhang seemed to suggest it may have occurred. Then, when she engaged in extreme behaviour threatening suicide when the two of you travelled to South Australia, you became very concerned about her vulnerability.
63Mr Tovey said that it was in this context that you ended up being embroiled in this offending behaviour. He placed considerable emphasis upon the persistent importuning of you by Ms Zhang to go to the victim’s apartment on 6 December 2016. I accept that it is clear from those messages comprising Exhibit “D2-4” that you told Ms Zhang that you could not let her go to the victim’s apartment and you urged her not to act on impulse and to stay calm. I consider it to be a fair interpretation of those messages that Ms Zhang was relentlessly pressuring you to go to the victim’s apartment to the point where she starts a countdown threatening that you are going to force her to die because you will not assist her. You complained that you were at work and she was forcing you to choose and that was always like this. Ms Zhang continued to send a barrage of messages to the effect that she may be killed and that you do not care. Finally, after about an hour and three-quarters of
such messages, you relented and said that you would come. This was after Ms Zhang had said, amongst other things, “It doesn’t matter if I'm killed by him”. When you were almost at the apartment, you messaged Ms Zhang to say “He’ll prevent you from opening door for me. I'm afraid you might be trapped inside.” It was a short time after this that she facilitated your access into the apartment.
64I accept that, prior to this series of pressured messages from Ms Zhang, you had no intention of going to the victim’s apartment and that you only did so in circumstances where you were concerned about Ms Zhang’s emotional instability, particularly as it was only a day after she had been released from a mental health assessment in an overnight stay in a hospital in South Australia. I accept that the plan to go to the victim’s apartment was orchestrated by Ms Zhang, who wanted you present with her in order to intimidate the victim. Having enabled your better judgment to be overborne by pressure from Ms Zhang, you then armed yourself with a bottle of chilli flakes and laid into the victim physically in circumstances where it was plain that he did not want you in his apartment. I accept that it was a complex emotional situation for you where you believed that there was some indication that Ms Zhang’s allegation of rape by the victim had been borne out the victim’s message to her, but it was foolhardy in the extreme to take the law into your own hands rather than simply going to the police.
65Mr Tovey has urged that you are person of good character and that this behaviour was an aberration in a situation of emotional pressure from someone whom you knew to be fragile. He has asked the Court to consider a Community Correction Order without conviction. In my view, a without conviction disposition would not appropriately reflect the gravity of the offending, particularly given that, after you arrived at the victim’s apartment and caused his head to bleed, you remained there for some two or three hours after he had barricaded himself in the bathroom, and you continued to
yell threats through the door to him. It was plainly terrifying for the victim as indicated in his call to “000” and his Victim Impact Statement.
66Nevertheless, I consider your moral culpability to be less than that of Ms Zhang in that your involvement might aptly be described as being out of misguided loyalty or chivalry, whereas I see Ms Zhang’s involvement as being very deliberate, vindictive and manipulative.
67You pleaded guilty to the offences shortly after Ms Zhang had pleaded guilty.
Although not the earliest pleas of guilty, there was no committal run and the prosecution has accepted that your pleas of guilty should be regarded as early pleas. In your record of interview with police and also apparently in discussions with your current partner, Ms Du (who gave evidence at the plea hearing), you minimised your conduct, claiming that you had been acting in self-defence. I have reservations about whether you are remorseful. Mr Cummins in his report and Ms Du in her evidence stated that you expressed remorse. It is possible that this developed relatively recently. I am unable to say. Nevertheless, I accept that your pleas of guilty do have considerable utilitarian value and entitle you to a discount on the sentence which you would otherwise have received.
68I consider that you have established yourself as a capable and functioning member of society here in Australia in a superior way to Ms Zhang. You have formed a stable relationship with Ms Du who appears to be a dignified and intelligent young woman. She is in stable employment as a graduate auditor with William Buck. She came to Australia from Fiji five years ago and successfully completed a Masters of Banking and Finance at Monash University and then a Graduate Diploma. She is committed to the relationship with you and indicated that you are planning to marry. She stated that she had not known you to be of a violent or hostile temperament.
69After completing your Diploma of Business at Monash University, you began
studying a double degree of Bachelor of Business and Bachelor of Sports Management at Victoria University. You were prevented from pursuing these studies because your student visa was cancelled in February 2018 following your being charged with these offences. In addition you were not permitted to work. Your visa cancellation is the subject of an appeal to the Administrative Appeals Tribunal where a hearing is listed on 5 March 2019.
70It would appear that you were good at what you did as a personal trainer as testified to by your boss from Anytime Fitness, Mr Stephen Kenny.4 Your life has been in a state of limbo awaiting your fate in this proceeding and the determination of your visa status. There is no quantifiable risk as to whether you will be deported given the disposition that I propose to make, but only a possibility that the Minister may exercise his discretion against you. Hence, I am unable to take deportation into account, other than acknowledging the anxiety that you suffer by reason of the uncertainty about whether the Minister will or will not exercise his discretion to deport you.
71I have taken into account that there has been some delay between the commission of the offences and the court hearing relating to them. I take this into account in the same way that I have done in relation to Ms Zhang in that you have had your fate hanging over you in relation to the disposition of the charges. Also, you have shown some rehabilitation in that you have not reoffended in the intervening period.
72It seems to me that, up until your involvement with your co-accused, Ms Zhang, your life here had been exemplary, characterised by an application to your studies and a preparedness to do part time work as your student visa condition permitted. The impression I have is that you were a stable and contributing member of society, and that in your new relationship, which is supported by Ms Du’s parents, you have the capacity to do so again. I note
Part of Exhibit “D2-1”
that Mr Cummins’ report (Exhibit “D2-5”) states that, other than being moderately anxious and mildly to moderately depressed by way of reaction to your current legal situation, you do not suffer from any personality disorder or psychotic disorder or a Major Depressive Disorder or a generalised anxiety disorder. Mr Cummins considered that your involvement in this offending was situational. I accept that it was out of character and that you are not likely to be a risk to society by being involved in further antisocial or violent offending.
73In sentencing you, I also take into account that as a consequence of the assault upon your victim, you sustained an injury to your right knee, which required surgery by way of knee reconstruction on 4 April 2017. In this regard, you have received some extracurial punishment already.
74In all of the circumstances, I consider that the principles of denunciation and general deterrence and just punishment can be met with a Community Correction Order in your case, albeit that I have made it plain that I do not consider that a “without conviction” disposition is open.
75Please stand up Mr Xie.
76On Charge 1, intentionally causing injury, you are convicted and sentenced to undertake a Community Correction Order for a period of 12 months.
77On Charge 2, false imprisonment, you are convicted and ordered to undergo a Community Correction Order for a period of 18 months.
78The core terms of each Community Correction Order are as follows:
(a)you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(ab)you must comply with any obligation or requirement prescribed by the regulations;
(b)you must report to, and receive visits from the Secretary during the period of the order;
(c)you must report to the community corrections centre specified in the order within 2 clear working days after the order coming into force;
(d)you must notify the Secretary of any change of address or employment within 2 clear working days after the change;
(e)you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
(f)you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that the offender complies with the order.
79In addition, the following conditions are imposed:
In relation to the community Correction Order imposed on Charge 1, you are to perform 75 hours of unpaid community work.
In relation to the Community Correction Order imposed on Charge 2, you are to perform 125 hours of unpaid community work.
Although the periods of the two orders are to run concurrently, making a total period of 18 months, I order that the condition of 75 hours unpaid community work on Charge 1 be cumulative upon the condition of 125 hours unpaid community work on Charge 2. Mr Xie, this means that you must complete the 75 hours on Charge 1 within 12 months. The 125 hours on Charge 2 must be completed within 18 months.
You need to be aware, Mr Xie, that if you do not comply with the terms and condition of a Community Correction Order, then that, in itself, is a criminal offence punishable by 3 months’ imprisonment.
80I am not able to make such an order unless you consent to it. Do you consent to the Community Correction Orders with the terms and condition which I have just read out?
MR XIE:
81Yes I do your Honour, but I am worried because my visa condition does not permit me to do work.
HER HONOUR:
82This is unpaid work, being ordered by the Court as part of a Community Corrections Order.
83Pursuant to s6AAA I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 15 months’ imprisonment with a non-parole period of 8 months.
84Pursuant to s464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with sub-division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I consider this order is warranted by reason of the seriousness of the circumstances of the offending and the fact that it is not opposed by yourself.
85Mr Xie, you need to be aware that if you do not consent to the taking of a swab of saliva from inside your cheek under the supervision of an authorised member of the police force, then police may use reasonable force to enable the forensic procedure to be conducted.
- - -
In the County Court At Melbourne
Indictment no: C1711097 Court ref: CR-18-01482
CR-18-02066
DPP -v- Ge Zhang, Yuwei Xie
SUMMARY OF PROSECUTION OPENING ON PLEA
Date of document: 25/10/18
Filed on behalf of: Prosecution Filed by:
John Cain
Solicitor for the Office of Public Prosecutions,
565 Lonsdale Street,
Melbourne Vic. 3000.
Solicitor’s Code: 7539 Reference: Christopher Liaskos Telephone: (03) 96032548
Email: [email protected]
CONTENTS
Charges .................................................................................................... 2
Charges summary ..................................................................................... 2
Persons involved ...................................................................................... 2
Background .............................................................................................. 3
Evening 2/12/16 ..................................................................................... 3
Early morning 3/12/16 ............................................................................ 3
3/12/16........................................................................................................... 3
4/12/16........................................................................................................... 4
5/12/16........................................................................................................... 4
Offending................................................................................................... 4
6/12/16............................................................................................................... 4
7/12/16............................................................................................................... 7
Reports to police - 9/12/16.......................................................................... 9
Arrests - 26/12/16..................................................................................... 10
Zhang interview......................................................................................... 11
Xie interview............................................................................................. 17
Maximum penalty...................................................................................... 21
Criminal history - nil.................................................................................. 21
Victim impact statement............................................................................ 21
Plea indication........................................................................................... 21
Plea discount............................................................................................ 22
DPP position on sentence.......................................................................... 22
Pre-sentence detention............................................................................... 22
Forensic sample order............................................................................... 22
CHARGES
| Xie | Zhang | Date | Offence | Victim |
| 1 | 1 | 6/12/16 | Intentionally cause injury. | Jiaqi Qiu |
| 2 | 6/12/16 | False imprisonment | ||
| 3 | 7-9/12/16 | Blackmail. |
CHARGES SUMMARY
The subject of the charges is -
(1)Ge Zhang (dob 31/10/1994) and her boyfriend Yuwei Xie (dob 1/6/1993) assaulting Jiaqi Qiu (dob 30/01/1992) in his apartment causing him injury – charge 1: intentionally cause injury.
(2)Qiu escaping the attack by staying in his bathroom, preventing the door being opened and not leaving while Xie remained outside out of fear of further violence from Xie – charge 2: false imprisonment.
(3)Zhang threatening to report to the police and tell everyone that Qiu raped her unless he paid her $5000 – charge 3: blackmail
PERSONS INVOLVED
Zhang, Xie, Qiu and Qiu’s girlfriend Songyin Lin (dob 31/03/1992) were all Chinese nationals in Australia on student visas.
Qiu resided at an apartment in Carlton.
Zhang –
(1)and Qiu had attended language school in Melbourne until the end of 2015.
(2)and Xie –
(a)lived in an apartment in Russell St., Melbourne.
(b)had been in a relationship for approximately one year.
(c)had a turbulent relationship. They frequently argued and Zhang would say they had broken up.
BACKGROUND
Evening 2/12/16
Zhang –
(1)had an argument with Xie.
(2)left their apartment at approximately 10 pm.
(3)arranged to meet with Qiu through the social media.
(4)met Qiu at a café in Russell St., Melbourne for supper. They spoke for approximately 30 minutes.
(5)told Qiu she had just broken up with Xie and she was planning to move out.
(6)returned to her apartment and then arranged to meet Qiu at his apartment for a drink.
Early morning 3/12/16
Zhang-
(1)arrived at Qiu’s apartment at 1.33 am.
(2)was carrying a handbag and a bag containing sleepwear and personal effects.
(3)and Qiu drank a bottle of wine.
(4)after a time changed into her pyjamas and went to bed.
(5)and Qiu had sex. Qiu wore a condom on Zhang’s request.
(6)at 3.53 am said goodbye and left.
3/12/16
Zhang and Xie –
(1)went on a trip they had planned previously to Port MacDonnell in South Australia.
(2)argued during the trip.
Zhang threatened suicide. Police were called because of Zhang’s erratic behaviour. Police called ambulance. Zhang was taken for mental health assessment to Mount Gambier Hospital.
Xie drove back to Melbourne; Zhang remained at the Hospital.
4/12/16
Zhang –
(1)contacted Qiu on social media.
(2)asked Qiu to forget what had happened. Qiu deleted her contact details.
5/12/16
Zhang returned to Melbourne by bus and train. She had an extended conversation with Qiu on social media in which she claimed Qiu raped her and demanded he apologise.
OFFENDING 6/12/16
Zhang –
(1)asked to come to Qiu's apartment to discuss what had happened between them. She insisted that they talk at Qiu's apartment.
(2)attended Qiu’s apartment at 6.08 pm.
(3)told Qiu–
(a)he should apologise to Xie because she had not broken up with Xie when Qiu and her had sex.
(b)if he did not apologise she would tell-
(i)Qiu's girlfriend.
(ii)Xie that Qiu had raped her.
(c)he would have to-
(i)really apologise for this to work.
(ii)would have to get on his knees to do so. Qiu went down on his knees. Zhang took a photograph of Qiu in this position.
(4)told Qiu to sit on the opposite side of the room because she needed to be alone. He did so.
(5)messaged Xie to attend at Qiu's apartment and gave him the address.
Xie –
(1)upon receiving Zhang’s message made his way to the apartment.
(2)on the way purchased a glass container of chilli powder.
(3)arrived at the apartment at 7.23 pm. He was buzzed up by Zhang.
Qiu told Zhang that he did not want to speak to Xie at his apartment because he was concerned there could be violence. Xie buzzed to enter the second floor. Zhang allowed him access to the second floor.
Zhang opened the apartment door. Xie –
(1)ran at Qiu.
(2)threw chili powder in Qiu’s face and hit Qiu with fists and kicked him. The blows knocked Qiu to the ground. Qiu covered his head to protect himself.
(3)kicked Qiu in the head and body. Qiu in his police statement said that he was kicked “at least 10 or 20 times” and Xie shouted that he would kill Qiu.
(4)told Qiu to take off his pants to let him kick his genitals three times.
Zhang told Qiu he should do as Xie said.
Qiu –
(1)put his hands to his head and saw blood on his hands.
(2)told them it was his home, to stop attacking him, to get out, he would call police and he needed a doctor.
Xie started attacking Qiu again. Qiu-
(1)escaped into the bathroom.
(2)pushed up against the bathroom door to prevent it being opened.
The door was kicked.
(3)called out –
(a)he was bleeding to death.
(b)they needed to call 000.
(4)held a towel against his head to stop the bleeding.
(5)heard Xie say -
(a)he could stay in the bathroom until he died.
(b)come out and let him kick him in the genitals and he would call an ambulance.
Zhang –
(1)picked up Qiu's phone and attempted to call Lin. She was unable to do so.
(2)accessed Qiu's computer and located an email address for Lin.
(3)emailed Lin.
(4)asked Lin to attend the apartment. She sent Lin an image of Qiu on his knees.
Lin called Qiu’s phone. Zhang
(1)answered.
(2)said to Lin that she had sex with Qiu.
(3)told her that if she wanted to know more she should come to the Qiu’s apartment.
Lin –
(1)came to the apartments at 10.08 pm.
(2)was given access by Zhang.
(3)spoke to Xie and Zhang for a time. Xie told Lin he was angry that Qiu had sex with Zhang.
(4)saw Xie and Zhang beat on the bathroom door and shout they would kill Qiu because he had raped Zhang. Qiu was in the bathroom yelling for help.
(5)asked Xie and Zhang to leave. They wanted a discussion with Qiu.
Lin argued with them. They left after about 30 minutes and then returned a few minutes later. Qiu was still in the bathroom shouting for help. They looked around the whole apartment and then left after 5 minutes. Lin locked the apartment door Xie attended at St Vincent’s Hospital. He was treated for pain in his knee.
Qiu –
(1)opened the bathroom door after Zhang and Xie finally left.
(2)called 000 using Lin’s phone.
(3)was initially connected to police and then transferred to Ambulance Victoria due to his injuries.
(4)was transported by ambulance to the Royal Melbourne Hospital.
(5)was treated for injuries. He had a 2 cm long laceration to the top of his head that was 3-4 mm deep and minor injuries to his arms and legs.
7/12/16
Zhang -
(1)contacted Lin. She asked Lin to meet her at Melbourne Central to return Qiu’s phone. Lin attended and was met there by Xie. Zhang arrived later.
(2)told Lin that Qiu had raped her. Lin asked Zhang-
(a)if Qiu had used a condom. Zhang said “yes”.
(b)why Qiu would have used a condom if it was rape. Zhang replied: “We are both girls, why would you believe him over me?”
(c)further questions about what had happened. Zhang became angry. She said she would–
(i)break Qiu’s reputation
(ii)email everyone and tell them that Qiu had raped her.
Xie asked Lin about Qiu's financial position. Zhang and Xie indicated they wanted thousands of dollars of compensation from Qiu for-
(1)their emotional stress.
(2)Xie having broken his phone after having found out that Qui and Zhang had sex.
(3)Zhang having broken her phone.
(4)If it was not paid Qiu’s reputation would be ruined by them telling everyone Qi had raped Zhang.
Qiu’s phone was given to Lin. Lin -
(1)returned the phone to Qiu.
(2)ended their relationship.
(3)received further messages from Zhang. Lin –
(a)indicated that she did not wish to speak to Zhang.
(b)continued to receive messages telling her that Qiu needed to pay Zhang or she would destroy his reputation.
(4)contacted Qiu and told him that she was being contacted by Zhang.
Zhang continued messaging Qiu. They exchanged messages.
(1)Zhang messaged:
(a)She “reserved” her right to sue Qiu for raping her.
(b)Qiu could be detained for a few days for fighting “but what will happen for raping?”
(c)Nobody hit Qiu.
(d)She wanted compensation for
(i)her medical costs.
(ii)her and Xie’s emotional damage.
(iii)damage to Xie’s mobile phone when he rescued her from the sea.
(e)“I’m going to ruin your reputation in school.”
(f)Demanded $5000 from Qiu “in exchange for your future”.
(2)Qiu messaged Zhang:
(a)Xie unilaterally hit him. There was blood all over his house.
(b)He -
(i)did not rape her.
(ii)had said sorry to her because he could not allow anyone to hurt Lin.
(c)He -
(i)had $1500 cash he was willing to give her if she did not harass Lin again.
(ii)would take care of his own medical expenses and the damage done to his apartment.
Qiu received -
(1)voice messages from Xie asking if his head still hurt and if he still lived at the same address.
(2)messages telling him that Zhang and Xie were going to or were at police stations.
REPORTS TO POLICE - 9/12/16
Zhang and Xie reported that Zhang had been raped to the Melbourne Sex Offences and Child Abuse Investigations Team. When making the report–
(1)Xie asked a number of times whether financial restitution could be obtained from Qiu.
(2)Zhang indicated that she wished to commit suicide. She was taken to hospital for assessment prior to her completing her report.
Qiu reported the matter at the Melbourne North Police Station.
Thereafter -
(1)police made numerous attempts to contact Zhang to complete her rape report. She did not complete a statement until 1/3/17 (after having been interviewed by police on 26/12/16).
(2)further police investigation into Zhang’s rape complaint was not authorised.
ARRESTS - 26/12/16
Police arrested –
(1)Zhang at Melbourne Airport.
(2)Xie at his home.
Interviews were conducted that day with the assistance of a Mandarin interpreter.
ZHANG INTERVIEW
In her interview Zhang said:
(1)Qiu had–
(a)been a close friend of hers.
(b)previously had –
(i)given her a lot of attention on social media in that he would sometimes "like" or comment on some of her posts.
(ii)sent her text messages every day saying good morning and good night.
(2)On 2/12/16 she had had an argument with Xie and had been drinking. At around 11 pm Qiu asked her out for supper. After supper she went home at around midnight. She drunk 2-3 glasses of wine, becoming a bit drunk. Qiu messaged her and enticed her to come to his apartment with an offer of her favourite drink. She had not kept this message.
(3)She -
(a)went to Qiu's apartment to continue drinking.
(b)brought an over-night bag because she had planned on leaving Xie.
(c)was planning to stay at Qiu's apartment until 6 am when her agent started work and then go to a new apartment where she would sleep.
(d)was unable to provide the details of the agent.
(4)Qiu had encouraged her to drink more at his apartment. She was not drunk but felt dizzy.
(5)Qiu asked her to take a shower. She -
(a)got into her pyjamas.
(b)went to bed at Qiu's request. Qiu took hold of her hand and hugged her telling her that he had always loved her.
(c)tried to push him off but was unable to because she was drunk.
(d)told him "no, no, no" and to think of his girlfriend.
(e)asked Qiu to wear a condom. He maintained pressure on her while he put it on.
(f)laid on top of her, pushed aside her underwear and then penetrated her vagina with his penis.
(g)had tried to verbally encourage Qiu to orgasm quickly to get the rape over quickly.
(6)She had sustained a lot of bruises on her head, arm and upper body as a result of the rape.
(7)Qiu compelled her to have a shower after he orgasmed. She -
(a)said she dressed and ran away while Qiu had a shower.
(b)later said Qiu had gotten out of the shower and tried to get her to stay. She had left anyway and had left "fast".
(8)She
(a)then went with Xie to South Australia.
(b)argued with Xie.
(c)had attempted suicide.
(d)then told Xie what had happened.
(9)Xie had encouraged her to report the matter to police but she did not want to as she had insufficient evidence.
(10)Zhang sent a message to Qiu on 4/12/16 telling him to forget what had happened between them.
(11)Qiu –
(a)contacted her on her way home from South Australia.
(b)told her not to tell anyone about what had happened.
(c)had been trying to arrange to meet her.
(12)She -
(a)went to Qiu’s apartment on 6/12/16 to convince him to turn himself in with the police.
(b)did this because –
(i)she had an argument with Xie in which Xie had not believed that she had been raped.
(ii)if Qiu apologised then she and Xie could get back together.
(c)wanted to meet Qiu in private so that they were not seen together.
(d)indicated she thought that she would be safe at Qiu’s apartment because they had previously been friends.
(13)Qiu -
(a)went down on his knees to apologise without prompting from her.
(b)became agitated and yelled and screamed at her after she had told him that she wanted to report him to the police.
(14)She –
(a)became scared and secretly messaged Xie to pick her up.
(b)was unable to explain why she did not leave the apartment when she was frightened despite her being seated near the door and Qiu obeying her directions as to where he should sit in the room.
(c)was aware that Qiu did not want Xie to come to his apartment and that he specifically told her that.
(d)felt justified in letting Xie in because she was afraid of Qiu.
(e)buzzed Xie up while Qiu tried to keep the door closed.
(f)was able to get the door open.
(15)Xie was holding a bottle of chilli that he sprayed at Qiu. Qiu was complaining that he was bleeding. She could not tell if Qiu was bleeding because she could not tell the difference between chilli powder and blood.
(16)Qiu pushed Xie onto the bed and stepped on his knee. Xie then tried to defend himself by striking Qiu to the top of the head with the bottle.
(17)She could not recall the exact detail of the fight.
(18)Qiu locked himself in the bathroom. She and Xie tried to get him to come out to go to the police station by knocking and kicking on the door. She knew Lin was coming over because Qiu had said so. She told Qiu that if he did not come out she would tell Lin that he had raped her.
(19)She -
(a)was unsure whether Xie had threatened to kill Qiu however he might have because he was very angry.
(b)had told Qiu that she would kill him when she was shouting through the bathroom door.
(20)Xie had not told Qiu to pull down his pants and allow Xie to kick him in the genitals.
(21)Qiu in the bathroom had been asking for help. She had not called -
(a)for help as she did not believe Qiu was bleeding.
(b)police to attend because she-
(i)thought that they would take too long.
(ii)anticipated there would be a language barrier.
(22)Xie's leg was very swollen. She tried to treat it by wrapping it in a towel.
(23)She -
(a)had found Lin's email by searching through Qiu's computer and finding an essay that had Lin’s email address.
(b)had emailed Lin asking her to come over.
(24)She
(a)and Xie waited for Lin to arrive for around two hours.
(b)obtained Lin’s phone number from her when she came over.
(c)and Xie left when Lin arrived
(d)did not have any conversation with Lin later that night.
(e)had accidentally taken Qiu's phone with her when she and Xie left.
(f)arranged with Lin to return the phone on 7/12/16.
(25)Qiu had contacted her the following day. Qiu said he would pay her
$3,000 if she would write a letter of guarantee that she would not go to the police. She did not want to do this because she considered Xie and herself to be victims and they were already going to the police.
(26)She-
(a)had contacted Qiu and told him that she could report him to police or they could sort it out privately.
(b)subsequently asked Qiu for $5,000. They then negotiated over terms.
(27)She thought that Qiu was being let off easy by paying money instead of her going to the police.
(28)She -
(a)had received a message from a friend of Qiu's that she believed was sent to intimidate her when she and Xie were on the way to the police station. After receiving these messages Xie sent messages to Qiu asking how his head was and if he still lived at the same place in order to intimidate Qiu.
(b)could not account for the fact that these messages were sent two days prior to when she and Xie attended at the police station.
(29)She -
(a)agreed with the police account of her arrest.
(b)identified herself, Qiu and Xie in still images from CCTV at Qiu’s apartments.
(c)drew a sketch of the apartment of Qiu.
XIE INTERVIEW
In his interview Xie said:
(1)His relationship with Zhang was awful. They fought one or two times per week. At times Zhang would physically harm herself and him. Zhang had previously threatened to commit suicide by jumping off a building.
(2)On the night of 2/12/16 they had fought because he had taken a work call in the evening. Zhang -
(a)stormed out at around 10 pm.
(b)later returned and he pretended to be asleep.
(c)had drunk around a third of a bottle of wine. He thought she was drunk.
(d)then left again and did not answer him when he asked where she was going.
(e)often said that she was leaving and would prepare a bag to take with her.
(3)He –
(a)received a message from Zhang at around 4 am that she was near RMIT.
(b)met Zhang and found her watching You-tube videos and apparently unperturbed.
(c)hugged him a lot that night.
(4)When they were travelling in South Australia Zhang-
(a)had attempted suicide a number of times by walking into the ocean, driving poorly and threatening to break a mirror to cut herself with the shards.
(b)had told him that she had been raped when they were arguing.
(5)Zhang told him Qiu-
(a)had invited her to his apartment to drink at 1 or 2 in the morning.
(b)pushed her to drink.
(c)had insisted that she sleep on the bed.
(d)began touching her on the breast and back. She had said "no" and pushed him away.
(e)had taken off her clothes and penetrated her despite her saying "no".
(f)had put on a condom when she asked him to.
(g)continued penetrating her while she had continued to say "no".
(h)got in the shower when they had finished. She had put on her clothes and left quickly.
(i)told her not to tell Xie.
(6)Zhang said she wanted to kill Qiu. He advised her to go to the police.
(7)On 6/12/16 Zhang told him -
(a)she wanted to commit suicide with Qiu.
(b)gave him details of Qiu's address.
(8)He bought a container of chilli powder on his way to Qiu’s apartment to stop Qiu because he had heard that police used chilli to do this.
(9)He arrived at Qiu’s apartment at around 7 - 7:30 pm. He was buzzed up to the apartment after his second attempt to get in.
(10)The chilli powder was in his hand as he approached the apartment.
(11)He –
(a)thought that Qiu would have given him permission to enter.
(b)saw Qiu and Zhang struggling at the doorway.
(c)was trying to enter the room to save Zhang.
(d)pushed the door open and entered the room despite Qiu kicking him twice in the hip.
(e)threw the chilli powder in Qiu's face. Qiu grabbed him and hit at his head.
(f)repeatedly struck Qiu in the head with the bottle of chilli powder while Qiu held him.
(g)considered that he was acting in self-defence.
(h)and Qiu fell to the floor, striking at one another.
(i)got up first and kicked Qiu's head. Qiu kicked Xie in the right knee causing an injury which was so severe that he was unable to walk unsupported on it.
(j)kicked Qiu again to the body. This hurt him (i.e. Xie) because of his injured knee.
(k)did not leave with Zhang when Qiu was already on the floor because he had lost control of himself.
(12)Qiu said he wanted to clean up and went to the bathroom and locked the door. He (i.e. Xie) was exhausted but kept knocking on the door and telling Qiu to come out and fight him as a bluff in order to cow Qiu. Qiu was shouting loudly for a doctor and shouting "help".
(13)He had not said he wanted to -
(a)kill Qiu.
(b)kick Qiu in the genitals.
(14)Zhang called Lin. He did not know where Zhang obtained Lin’s number.
(15)He and Zhang left after Lin arrived.
(16)Zhang had been using Qiu's phone. He had found it in his pocket after they left the apartment. They had given the phone back to Lin the following day.
(17)Qiu approached Zhang and offered to pay her to prevent them from going to the police. He did not know about all the messages between Qiu and Zhang.
(18)Initially they did not want money from Qiu. He -
(a)had initially insisted to Zhang that it be reported to police.
However a case would take a long time, is often not successful and Zhang was always worrying about her reputation. So he thought it was better to resolve it out of court because it would be easier on Zhang.
(b)denied that Qiu was ever threatened with damage to his reputation if he did not pay the money asked of him.
(19)Qiu had sent him threatening voice messages that he took as meaning that Qiu would report to police that Xie had assaulted him.
(20)He -
(a) never contacted Qiu. (b) meant by this that he had not initiated contact but that he had left a message asking how Qiu's head was. (c) sent this message to make Qiu go away and not harass Zhang. (21) He – (a) agreed with the police account of his arrest. (b) identified himself and Zhang in the still CCTV images from Qiu’s apartments shown to him. (c) provided a medical release allowing police access to his medical records which related to this incident.
MAXIMUM PENALTY
| Charge | Offence | Penalty |
| 1 | Intentionally cause injury. | 10 years |
| 2 | False imprisonment. | 10 years |
| 3 | Blackmail. | 15 years |
CRIMINAL HISTORY - nil VICTIM IMPACT STATEMENT
A Victim Impact Statement dated 25 October 2018 has been prepared by
Jiang QIU.
PLEA INDICATION
| 26/12/16 | Zhang and Xie charged. |
| 18/7/18 | Matter listed for 2 day contested committal. Qiu attended. No magistrate available. Zhang made offer to resolve. |
| 19/7/18 | Zhang offer accepted. Matter proceeded by SHUB. Zhang pleaded to police charges corresponding to indictment charges. Plea listed at County Court on 1/11/18. No magistrate available for Xie committal. Committal re-listed to 10/10/18. |
| 9/10/18 | Plea negotiation. |
| 10/10/18 | Xie resolved prior to committal commencing. Qiu attended. Matter proceeded by SHUB. Zhang pleaded to police charges corresponding to indictment charges. Plea joined with Zhang plea at County Court on 1/11/18. |
PLEA DISCOUNT
The requirements of s. 6AAA Sentencing Act 1991 are noted.
DPP POSITION ON SENTENCE
To be advised.
PRE-SENTENCE DETENTION
Nil.
FORENSIC SAMPLE ORDER
Forensic sample orders will be sought against both offenders.
FORFEITURE ORDER
39. A Forfeiture order will be sought in respect to the Apple iPhone S6 mobile phone of Zhang.
Alexander Albert (Barrister)
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