R v Jie Hua Yu
[2001] VSC 207
•1 June 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1498 of 2000
| THE QUEEN |
| v |
| JIE HUA YU |
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JUDGE: | Teague J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 February, 1-7 March 2001 | |
DATE OF SENTENCE: | 1 June 2001 | |
CASE MAY BE CITED AS: | R v Jie Hua Yu | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 207 | |
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Manslaughter – Criminal negligence – Child left unduly long in car – Gambling obsession – Good character – 4 years – Immediate parole eligibility.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr. Couglan | Office of Public Prosectuion |
| For the Accused | Mr. B. Bourke | Bullards |
HIS HONOUR:
Jie Hua Yu, you have been found guilty by a jury of the manslaughter of Brian Yu in February of last year. Brian was the second of your three children. He was then 19 months old. On the morning of 16 February 2000, you drove your older son to school. You took Brian with you, strapping him into the child restraint seat in your car. Your husband and your daughter were still sleeping. Your husband's work as a waiter meant that his sleeping hours were later than normal. When you returned home, Brian was still asleep in his car seat. You took $150 and drove to the Ferntree Gully Hotel. You arrived there shortly before 9.30 a.m. The weather on that day was fine and warm to hot. It was not an untypical February day. It was over 20 degrees before 9.00 a.m. and over 30 degrees for some hours after 2.00 p.m.
You parked your red Toyota Camry not far from the entrance to the gaming area. Brian was still asleep. You locked the car. You checked to see that the windows were wound up. Your concern was that he might be abducted. You planned to spend only 20 to 30 minutes playing the poker machines. You went into the gaming room and started playing the pokies. That was shortly before 9.30 a.m. At times, you took a position from where you could look, and you did look through to where you could see the car.
You had developed a pre-occupation with poker machines. The hotel's gaming room was beguiling. It had 90 poker machines; it was carpeted; it was air conditioned; the lighting was subdued; there were no clocks; only in a couple of places was it possible to get a glimpse outside of the small piece of sky and of the car-park.
You did not go back to the car until your husband came to the gaming room and took you to the car. It was then getting close to midday. You had been beguiled into staying at the poker machines for close to two and a half hours. In that time, the temperature inside the car would have at least doubled. It would have been over 50 degrees. You and your husband rushed Brian to hospital. As his temperature of over 42 degrees on admission showed, the damage had been done. Despite the best efforts of doctors in two hospitals, Brian's life could not be saved.
You told the police that you had not considered the possibility that by leaving your son in the car, as you did for so long, you would be exposing him to a risk of injury. You had become so entirely focused on gambling that you were unaware of the passage of time. You had become distracted from being conscious of Brian's presence in the car.
Any person who has the responsibility for the care of young children has an enormous burden. There are many potential circumstances of high risk of death or serious injury. Leaving any small child in any car in any weather, even for only a few minutes, may be somewhat risky. To leave a toddler in a car in direct sunlight in warm to hot weather, even for 30 minutes, has to be seen as carrying a high risk. It would have to be an extraordinarily powerful distraction to lead to any longer period away. Gambling on the poker machines was, for you, so powerful.
Obviously, your preoccupation with gambling has to be a matter of great concern. It was seen that way by Dr Vine, the psychiatrist whose report on you I have found extremely valuable. She noted that your habit started after visiting the Crown Casino shortly after it opened. It developed into a pastime and then into a preoccupation, with thoughts of attending a poker machine venue constantly in your mind. Your addiction grew to the point that your husband cancelled a credit card and spoke of divorce if you kept returning to the poker machines. I accept Dr Vine's opinion that your failure to consider the danger facing your son was explicable by reference to your gambling problem. Dr Vine spoke from the experience of having seen many other persons whose lives have been blighted by gambling. She noted that the atmosphere of the gaming venues appears to be designed with the subdued lighting, background noises and the absence of clocks and views to the outside world to maximise a form of altered awareness, similar to a hypnotic trance. Such a trance-like state has blinded you to the need to care for your son.
My direct contact with the adverse consequences of gambling is limited. I am therefore not a good mouthpiece for the making of broad denunciatory statements. But I would make two specific comments. The first comment is that this is the second homicide case in just over 12 months that has come before me in which poker machines at the Ferntree Gully Hotel have figured significantly. In April 2000, I sentenced a man for murder after he gambled away at the poker machines at the hotel money that he had borrowed from a friend. He then murdered his friend because he could not bring himself to tell the friend what he had done with the borrowed money. The second comment is that when sitting on the Parole Board, I am conscious of the increasing number of cases where conditions are imposed on parolees requiring them to do programmes to address their gambling problem.
I turn from your offence to your personal circumstances. You were born in May 1960. You were born and educated in mainland China. You are the second in a family of four children. After school, you did two years' rural work as part of the cultural revolution. You then worked in the family business for about eight years. You came to Australia in 1988 and you were followed the next year by your younger sister. Here, you worked as a waitress and as a machinist. You left work when pregnant with Brian. It was only after that, when you became bored, that you got hooked on gambling.
I have, a few days ago, received the report from Ms Muxlow, a Community Corrections Officer. I requested the report on the day of the jury verdict. That report supplements the information provided in the oral testimony of Diane Allen from the Department of Human Services. Ms Allen provided information as to the Children's Court Protection Application and Interim Accommodation Order, and as to the Department's case worker's favourable reports on visits made to your home.
Ms Muxlow's report covers a number of further matters. She noted a concern that you are beset now by a similar isolation which contributed to your escape into gambling two years ago. You live with your husband and the two children. However, you are virtually a prisoner in your own home. You are so ashamed of what you have done that you only leave your home when you have to. Ms Muxlow records her opinion as to the desirability of expanding your English and taking part in appropriate cultural programmes and hence extending your support network which is, at present, little more than your husband and your sister. She also records that you are willing to do those things.
Not surprisingly, all sources report that you have engaged in no gambling at all since the death of Brian. Dr Vine reported that you were in need of ongoing counselling. Ms Muxlow reports that you are now attending a psychiatrist monthly.
You are of good character. You have no prior convictions. On all reports, you have been exemplary in attending to the welfare of your other two children. I accept that you are deeply remorseful for the death of Brian. Indeed, I believe that your continuing sense of guilt will represent greater punishment than any that I could order.
Special deterrence is minimally of concern to me, but general deterrence is a real concern. The seriousness of the offence of which you have been convicted means that I must impose a significant prison sentence. There are ways in which that can be done without being oppressive. I want to maximise the prospect of the right kind of provision for supervision and future planning. I reject the options of a suspended sentence or a Community Based Order because they would not provide adequate support or supervision.
It is my assessment that release on parole would be the option most likely to provide the best kind of supervision with support. I propose to, and now do, sentence you to a term of four years' imprisonment. A prison sentence of four years will send the message to the wider community that this kind of conduct is deserving of a prison sentence.
As to the fixing of a non-parole period, I say that I am satisfied that time spent in custody already, albeit one day, is such that there will be an immediate entitlement for you to be considered for parole. Setting an immediate eligibility for parole is an extremely rare event. I have never done it before. I am satisfied that it is a course which is justified in these exceptional circumstances. It will be for the Adult Parole Board to determine whether you will be granted parole and subject to what conditions. You will only be granted parole if you accept those conditions. The basic conditions would include regular attendance on a Community Corrections Officer who would be asked to report regularly to the Board. Specific conditions can be tailored by the Board to address your particular situation, whether as to counselling, as to programmes, as to refraining from gambling or otherwise. Conditions can be varied readily if necessary. You will remain under the supervision of the Board, and more directly under a Community Corrections Officer for the period of the sentence. Breach of the conditions can lead to cancellation of the parole by the Board. In such circumstances, the whole term, and not just the uncompleted portion, could have to be served in prison.
I have already arranged for a copy of certain documents to be provided to the Parole Board, which I understand is meeting this morning. The documents are the reports of Dr Vine and Ms Muxlow, and the transcript of the evidence of Ms Diane Allen on the plea. I direct that a transcript of what I have said this morning be provided to the Board this morning.
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