DPP v Zhou
[2008] VSC 239
•27 June 2008
| IN THE SUPREME COURT OF VICTORIA | ||
| CRIMINAL DIVISION | Not Restricted | |
No. 1525 of 2007
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| XIN ZHOU |
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JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2008 | |
DATE OF SENTENCE: | 27 June 2008 | |
CASE MAY BE CITED AS: | DPP v Zhou | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 239 | |
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Criminal law and procedure – sentencing – intentionally cause serious injury – consideration applicable.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Tinney | Office of Public Prosecutions |
| For Zhou | Mr P Tiwana | Victoria Legal Aid |
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HIS HONOUR:
Mr Zhou, you have pleaded guilty to the charge of intentionally causing serious injury to Kai Zhou in Melbourne on 21 October 2006.
The offence is a very serious one. The victim is fortunate that he is alive and you are fortunate you are not facing a charge of murder.
Attacks to the body of persons in fights with large knives are especially serious and have deadly potential, a potential often realised in fact.
The victim at the time was 20 years of age and you, in a matter which is very relevant to sentence, were at the time, only 19 and a half years of age. You are now 21 years and two months of age.
You have done 616 days in pre-sentence detention, all in an adult prison, again a matter highly relevant to sentence, and pursuant to s.18(4) of the Sentencing Act 1991, I declare that period of 616 days as already served under the sentence I shall impose. That means that that period of 616 days is deducted from the sentence I shall impose upon you.
The circumstances of this case are especially disturbing. You had come down from Sydney with others and had booked in under a false name to a local hotel. You were using a false passport. Whilst in Melbourne, at 1.33 p.m. on Friday 20 October 2006, five deadly knives and a hatchet were purchased. When after these events your room was searched, of the five knives, two were missing. There was also an empty handcuff box. Your fingerprints were on items in the room.
The weapon you used to inflict these serious injuries has never been found. The persons you were with coming from Sydney, living in the hotel room and in the joint attack upon the victim, have never been identified by you. Even a year and a half later to your psychologist, Mr Michael Crewdson, in a two hour examination in custody on 12 May 2008, you said to the psychologist you were not able to tell him the names of the co-assailants, "It is too long ago now", you said.
The victim, Kai Zhou, was working in the Y2K Bar in China Town. Two nights before these events you and other persons attended there. You left without paying. Zhou pursued you and the group onto the street of Little Bourke Street. When he required that the bill be paid you acted aggressively towards him, in the company of others, and money was offered but insufficient to cover the bill. Zhou was pushed by another member of your group.
The significance of that matter, apart from its sequential relevance, is that the victim was able to identify you when you attacked him two nights later. As I have said, on Friday 20 October 2006 in the early afternoon the five knives and hatchet were purchased. The charge of intentionally causing serious injury is stated to be on 21 October 2006. That is because the events occurred shortly after midnight on that early Saturday, the preliminary events having occurred late on the evening of Friday 20 October 2006.
At about 10 p.m. on Friday 20 October 2006 the victim, Zhou, went to the Shanghai Club in Little Bourke Street to meet friends. He was in a karaoke room upstairs and, shortly after midnight, he came into contact with the persons, including you, from your group the previous two nights.
You aggressively asked Zhou what he was going to do. Another member of your group commenced swearing at Zhou. You then pulled out a knife that you had taken with you to the premises and stabbed Zhou to the left side of his chest. Zhou sought to protect himself, but lost his balance and fell and then a group of you and your companions stood over him. All of the group, including you, was armed with threatening knives. Zhou was then repeatedly stabbed by you as a leading person in the attack and by another thin person described by Zhou as "a skinny guy", who was also a leader in the attack. The skinny guy also hit Zhou over the head with a set of handcuffs. Zhou received 20 stab wounds, including numerous defensive injuries to his hands while he was trying to protect himself unarmed from the joint knife attack being inflicted upon him.
A crowd controller at the premises, Mr E. Silvey, observed a part of the incident, including you chasing Zhou within the club and stabbing him a number of times to the side of his body. You and your companions then fled the scene. You were all pursued by crowd controllers who chased you through the streets and you were detained by them.
You were then arrested by police who rapidly attended the scene in Exhibition Street and were taken to the Bourke Street West Police Station.
Zhou was placed into a taxi, bleeding heavily from his numerous wounds. Fortunately an ambulance was observed in Swanston Street. He was transferred into that ambulance and taken urgently to the Royal Melbourne Hospital where he was treated as an emergency.
Zhou's condition was very unstable when he was received into that hospital. A large amount of blood appeared on his chest X-rays. His breathing was laboured. A drainage tube inserted into his chest produced a rapid loss of blood pressure. This in turn led to urgent transfer to theatre where an emergency laparotomy was performed to stop the bleeding. By reason of medical treatment the bleeding was resolved and blood transfusions were made. He had sustained numerous stab wounds to his left and right chest, left abdomen, left buttock and also his left hand, left knee and left elbow. Although the internal cavity was breached, fortunately no fatal organ damage occurred. The general surgical team repaired the injuries as to his torso, the plastic surgery team to his hand injury, and the orthopaedics team to his left knee. He was intubated and returned to the Intensive Care Unit.
He was ultimately discharged home on 27 October 2006. Fortunately he has no serious permanent internal physical injury. I have examined the report and also the evidence of Dr Jonathon Knott of the Royal Melbourne Hospital, and also the notice of additional evidence from Dr Disiniaka.
By reason of the urgent action of placing the victim in a taxi and then into an ambulance and then to the Royal Melbourne Hospital, and then into emergency surgery, the victim is alive.
On police investigation, you gave a false name and a false passport was discovered. In the police interview at Melbourne West Police Station on Saturday 21 October 2006, in the interview commencing at 3.18 a.m. you gave a false name and false date of birth. You were given the assistance of Mr Jai Wong, Lawyer, and when the interview re-commenced at 11.46 a.m. you gave your true name.
In the interview at that time and the balance of the interview commencing at 5.11 p.m. and concluding at 5.43 p.m. apart from formal matters, you exercised your lawful right upon legal advice to decline to answer questions. That is your lawful right, and no person, including yourself is to be punished for exercising a lawful right.
Upon examination of your room at the Mercure Hotel, it was ascertained that Room 231 had been reserved in your false name, and that identification for that booking was your false learner's permit. You and another man had made the booking. As I have said, in your room five knife boxes were ascertained, three of which still contained knives and two of which were empty. A receipt from an Outdoor Adventure shop showed that the purchase of the five knives and a hatchet was made at 1.33 p.m. on that Friday, 20 October 2006.
It is undoubted that the attack upon the victim by a group of knife wielding men, led by you and the other man, was traumatic and frightening, as well as highly dangerous. Although young, you are a large and powerful person.
In the Victim Impact Statement Exhibit C before the court, the victims states: "I suffered injuries to the head, hand on the left side, arm, hips, abdomen, back. There were hundreds of stitches on me for the surgery. I wasn't able to sit, to stand, to walk or to sleep. I suffered constant pain all over my body. I felt worse when the weather changes. I have nightmare all the time.
"My hands and my knees are not flexible now. I lost my job and I stopped work for one and a half years. I lost a lot of money ... I feel scared when I go out and I always suspicious on other people and I always consider whether I need to carry around self-defence tools. I become nervous easily. The incident has such a big impact on my life. I nearly lost my lives. I was attacked without any warning and I didn't have the opportunity to call the police. My family is so worried about me. My girlfriend has to care for me, and wasn't able to concentrate on her studies".
It was put on your behalf by your counsel, Mr McQuillan, that the plea of guilty was made on the basis that you inflicted at least one of the serious injuries and were either acting in concert with others or were aiding and abetting others. I consider that analysis inadequate. You and the skinny person were the major assailants in a joint attack upon the victim. There is direct evidence of that from the victim and also from Mr Silton.
You were armed. You and the skinny man instigated the attack. You were in the company of knife wielding others, and by your plea you had the intention to cause serious injury. There is no evidence that you had a plan to attack the victim, and I proceed in sentence upon the basis that there was no plan to attack. Your counsel further put that by your plea you are carrying the responsibility for the action of others. Again I consider that submission inadequate.
You were a leader in the attack. You knew there were others in the attack with you. To this day you have never revealed who they were, and the conduct which you led was joint. Mr McQuillan, in eloquent submissions on your behalf, relied upon a number of matters in your favour and in mitigation of penalty. I agree with Mr McQuillan's submissions on those matters and take them centrally into account.
The first important matter is your youth. You were born on 28 April 1987. At the time of the offence were 19 and a half years and are now 21 years and two months of age. Significant also is that you have no convictions of any sort. You were thus a young person with no convictions, both significant matters in mitigation of penalty. There is a further related and significant matter in mitigation of penalty, and that is your isolation in a country not of your birth and in which you have had little guidance.
You are the one child of parents who live in Shanghai. Your father has commercial interests there, as does your mother; he in banking, and she in clothing. They are a good family and you were a good son.
You came to Australia during your secondary education some four years ago now to complete secondary education in Australia and with the prospect of further study here. You have only been back to China on one occasion, at the end of your first year here.
Living in Sydney as you were and being a very young person and speaking limited English, you were an isolated person in a foreign environment and young. The court well understands and makes full allowance for isolation of young persons, particularly in foreign environments, all of which applies to you, and all of which is relevant in mitigation of sentence. It appears likely that you fell under the influence of older and more worldly persons, and the court makes allowance for that in the context of your isolation as well.
I consider you do have remorse for your actions, and although you have not revealed the identity of your co-assailants, for which matter you are not to be punished, you do have remorse for your actions and that matter also applies in mitigation of penalty. Linked to that is your plea of guilty to this charge.
The court history of the matter is you were charged with attempted murder and related charges at the conclusion of the police interview at Melbourne West Police Station on 21 October 2006.
A committal was conducted at the Melbourne Magistrates Court on 13 and 14 June 2007. At that stage, as it had been since the conclusion of the police interview, you were charged with attempted murder, intentionally causing serious injury and recklessly causing serious injury. An offer to plead guilty to recklessly causing serious injury was made prior to the committal but was rejected by the prosecution.
After the committal, on 10 July 2007, on your behalf your lawyers offered to plead guilty to intentionally causing serious injury. Thus it is that you have been prepared to plead guilty to the present charge of intentionally causing serious injury for which you are to be sentenced for effectively a year. That offer was also rejected following advice from the committal prosecutor.
The offer was renewed in late February 2008. It was reconsidered once a Crown Prosecutor was assigned to the matter for trial, and that offer was then accepted. I consider the acceptance of that offer by the prosecution was both proper and appropriate.
You were arraigned before this court on 26 March 2008, wherein you pleaded guilty to the present count of intentionally causing serious injury. That history is relevant to your remorse in this case.
I further take into account in your favour the psychological report of Mr M. Crewdson of 20 May 2008, following a two hour examination of you by him in custody on 12 May 2008.
Mr Crewdson, in his report, Exhibit 1 on the plea, reviewed your history, and which I shall not repeat. He found that you had normal intellectual capacity. He found that you had no psychopathology. He found that you suffered mild anxiety with some reactive depression. He found that you were remorseful, a finding with which I agree. He found that you were lonely and isolated during your years in Sydney, a finding with which I also agree. You told him that on the night in question you had been drinking heavily. Doubtless that was true, but you took a deadly knife there and used it intentionally. Mr Crewdson found that your prognosis is good. I also agree with Mr Crewdson in that finding.
Relevant to that finding, apart from the antecedent and causal matters I have stated, namely your isolation in a foreign environment and your youth, also is the circumstance that you have been a very lengthy time in pre-sentence custody and in an adult environment, and have no prior convictions, and have pleaded guilty to this charge, and have been prepared to do so for a year, and have expressed to Mr Crewdson, and to others, your true remorse for your conduct.
Relevant also to the finding of your remorse and good prognosis are the two written references tendered on your behalf as Exhibit 2, that of Mr Chow Zing of 27 May 2008, a mature adult, and that of Zu Kaifeng, of 28 May 2008, a student.
I also take into account your good efforts in custody to improve yourself, including the Kangan Batman TAFE certificates, Exhibit 3, and the Corrections Victoria certificate, also part of Exhibit 3, or of your undertaking the Conflict of Management program.
Your counsel, during the plea, referred to the likelihood of your deportation on your serving the minimum term of your sentence. That matter is holistically relevant to your situation and to sentence in that it is yet another facet of your dislocation and isolation which commenced, albeit with the highest good intentions of your family, in your mid-secondary school career. However it is well established that a sentence to be imposed should not be tailored according to executive exigency as to deportation.[1]
[1]See Pham (2005) N.S.W. C.C.A. 94 at paragraph 13 per Wood C.J. at C.L. in whose judgment Hislop and Johnson, JJ. agreed, and Islam (2006) A.C.T.C.A. 21 at paragraph 35 per the Court.
I should have added, in relation to your Kangan Batman TAFE certificates, Exhibit 3, that throughout your time in custody you have worked hard and constantly in the prison kitchen, again showing good effort by you to rehabilitate yourself.
In summary, therefore, this is a very serious charge. General deterrence of other persons who might consider using knives is of high importance. However, in your favour are the important matters of your youth, your lack of any convictions, your isolation and your plea of guilty and remorse. As I have said, I now declare, pursuant to s.18(4) of the Sentencing Act 1991 - - -
MR TINNEY: Your Honour, before Your Honour goes to that. If Your Honour is passing a s.18 declaration my calculation made it 615 days.
HIS HONOUR: Yes. I think I might have added one, but I will leave it as (indistinct) and I declare that the period of 616 days has already been served under the sentence I impose, and I so certify. That means, Mr Zhou, that that period is deducted from the sentence I impose upon you. Mr Thu, I thank you very much for your professional assistance in interpreting today.
Mr Zhou, I sentence you for intentionally causing serious injury to Kai Zhou to six years’ imprisonment. I direct that you serve a period of three and a half years imprisonment before becoming eligible for parole. Mr Zhou may be removed. I will leave the Bench.
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