R v Qinhua Zhong

[2024] NSWDC 461

District Court

New South Wales

Medium Neutral Citation:

R v Qinhua ZHONG [2024] NSWDC 461

Hearing dates:

13 September 2024

Date of orders:

13 September 2024

Decision date:

13 September 2024

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Sentence of imprisonment of 2 years and 4 months, with a non-parole period of 1 year and 3 months.

Catchwords:

CRIME – Child sex offences – Sexual intercourse with child >14<16

SENTENCING – Mitigating factors – Assistance to the authorities

SENTENCING – Relevant factors on sentence - The offender’s lack of knowledge concerning the age of consent

Legislation Cited:

Crimes Act 1900 (NSW), s 66C(3)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 23

Category:

Sentence

Parties:

ODPP (NSW) (Crown)

Qinhua Zhong (Offender)

Representation:

Counsel:
Ms F. Vella (Crown)
Mr B. Neild SC (Offender)

Solicitors:
Ms Christina Tsalidis (Crown)
Mr Benjamin Goh (Offender)

File Number(s):

2023/199021

Publication restriction:

Non-publication order in respect of the victim’s name

JUDGMENT

Introduction

1. The offender is to be sentenced, having pleaded guilty to the following offences, which are offences under s 66C(3) of the Crimes Act 1900 (NSW).

2. The first offence is an offence, that between 27 January 2023 and 7 April of that year, at Hornsby, the offender did have sexual intercourse with the victim, a child who is of or above the age of 14 years and under the age of 16 years, namely, 14 years.

3. When I sentence him on that offence he has acknowledged his guilt in relation to an offence which is on a Form 1, which relates to that offence, being an offence, that between 6 April 2023 and 24 April 2023, at Hornsby, he did have sexual intercourse with the same victim, at a time when she was under the age of 16 years, namely, 14 years.

4. The second offence that Mr Zhong is to be sentenced for is an offence that between 24 April 2023 and 20 June 2023, at Hornsby, he had sexual intercourse with the same victim, who again at that time was above the age of 14 years and under the age of 16 years.

5. In relation to the sentencing of the offender for that offence, he has acknowledged his guilt in relation to an offence that is on a Form 1 which relates to that second principal offence, and the offence on the Form 1 in this instance is sequence 4, which is in identical terms to the principal offence that he is to be sentenced for, which is sequence 3.

6. The maximum penalty for these two offences is ten years imprisonment and there is no applicable standard non-parole period.

The Facts

7. The facts are agreed and the following is taken from the agreed facts.

8. The offender was born on 29 August 1999, so he was 23 years of age at the time of the offences. The victim was born on 17 November 2006, so she was a little over 14 years of age at the time of the offences.

9. In terms of the background to the offending, at the end of 2021, the victim and her mother moved to Australia from China. They resided initially at an address in Warrawee, with an uncle of the victim’s mother and the offender. The offender and the victim got on well and became friends. They are not biologically related to each other.

10. In October 2022, the victim and her mother moved into a unit in Hornsby. The victim and the offender remained friends and saw each other regularly. He would help her and her family by picking the victim up from school, helping her with her school work, particularly her English study, and other jobs. The offender would often visit her at her home in Hornsby, sometimes when her mother was present and other times when she was not. He would also occasionally take the victim for day trips. And the facts state that he was an adult, trusted by the victim’s mother to spend time with her.

11. In terms of the first principal offence, sequence 1. One afternoon, in April 2023, the offender picked the victim up from school and drove her to her home in Hornsby. They were in the victim’s bedroom when he kissed her on the lips and took off her clothes and he removed his own clothes. No one else was home at that time. The victim lay, with her back touching the bed, and the offender was posited on top of her and facing her when he inserted his erect penis into her vagina. He put her legs up around his torso and back. He moved his body forwards and backwards whilst his penis was inserted into her vagina, which caused her to feel pain and be uncomfortable. The victim told the offender this was hurting her and he continued thrusting forwards and backwards with his penis inserted in her vagina. At some point the offender ended the sexual intercourse.

12. In terms of the Form 1 offence that relates to that sequence 1, being sequence 2, on another occasion during the April 2023 school holidays, the offender drove the victim to visit a zoo in the Hunter Valley. They also went Go Karting together. He drove her back to her home in Hornsby.

13. Once they returned to the home in Hornsby, the victim and the offender were seated on the sofa when they began kissing. The victim was sitting on the offender’s lap and he removed their clothing. They moved into the victim’s bedroom, where she laid down, with her back touching the bed, and the offender climbed on top of her, and whilst positioned facing towards her, inserted his erect penis into her vagina. The offender moved forwards and backwards whilst his penis was inside her vagina, and at some point the sexual intercourse ended.

14. In terms of the second principal offence, being what is referred to as charge sequence 3, around the end of May, on a school day afternoon, the offender was with the victim at her home in Hornsby. The victim and the offender were kissing, and moved into the victim’s bedroom. They removed their clothing and the offender commenced sexual intercourse with the victim. The victim was laying, with her back on the bed, and he was on top of her. He was thrusting his erect penis, which was inserted into her vagina. According to the agreed facts, this lasted for about ten minutes, when the victim checked that she had received a message on her phone. The agreed facts state that the intercourse did not hurt the victim like the first time. The sexual intercourse ended, because they were tired.

15. In terms of the Form 1 offence, sequence 4, which relates to the second substantive or principal offence, around the start of June, on a school day afternoon, the offender was with the victim at her home in Hornsby. He kissed her on the lips and hugged her, and they moved to the bed in the victim’s bedroom. He removed her clothes and initiated sexual intercourse with her. She was laying down with her head and back touching the bed, and he was on top of her, and he inserted his erect penis into her vagina. He moved his body forwards and backwards whilst his penis was inserted into her vagina. At some point, according to the agreed facts, around 5pm, the offender ended the sexual intercourse, because he noticed the time and he needed to leave to go home.

16. On 19 June 2023, the victim’s mother noticed she was unhappy, and the victim told her mother and brother she had had a sexual relationship with the offender.

17. The next day, the offender had arranged to drive the victim, her brother and parents to visit the Blue Mountains for a sightseeing trip. However, this was cancelled, because of what the victim had disclosed to her mother. The offender arrived at the victim’s home to pick them up, and spoke with the victim’s mother and brother. The victim’s mother said, “What stage is your relationship with the victim at?” And the offender said, “Whatever can be done in a relationship has been done”. And the victim’s mother said, “You need to sort this out. You need to do something to manage this”.

18. The agreed facts state that the four offences, being the two principal offences and the form 1 offences, are not isolated events and there were other acts of sexual intercourse between the offender and the victim.

19. On 21 June 2023 at around 10:45am, the offender presented at Eastwood Police Station and told police he wanted to apply for an apprehended violence order due to being threatened to be sued, according to the agreed facts. The offender told police this was because he was having a sexual relationship with the victim who he knew to be 15 years of age. At that time, the offender was cautioned by police and proceeded to tell the police a number of matters set out in the agreed facts, essentially providing the details about the nature of the sexual relationship he had with the victim, her age and the sexual acts that had taken place between them.

20. He also told the police that he was planning to return to China between 23 June and 16 July 2023 and this had made the victim upset. When the victim’s mother became aware he and the victim had sex, she was demanding that the offender break up with his girlfriend and commence a relationship with the victim instead. The offender told his girlfriend what happened and then they went to the police station to report the matter. The agreed facts say that at a similar time, the victim provided a recorded statement to the police from the Child Abuse Squad regarding the offending, although I will come back to a concession which the Crown makes about the sequence of events during the course of these remarks.

Objective Seriousness

21. At law, there is no hierarchy of seriousness of acts of sexual intercourse, however, penile vaginal intercourse is generally considered to be more serious than digital penetration or fellatio. The facts do not inform me as to whether the offender ejaculated during any of the acts of intercourse. The victim was a little over 14 years of age at the time of the offences, so she was towards the bottom of the age range caught by the offence creating provision. The offender was 23 years of age at the time, so the age difference was some nine years, a considerable age difference.

22. As a matter of law, a 14-year-old child cannot consent to sexual intercourse in this State, however, here the sexual intercourse would appear to have been what is called non-oppositional intercourse and no coercion appears to be involved. The act of intercourse, which is the subject of the first principal count, caused the victim pain and she communicated that to the offender during the course of the intercourse. The other offences do not appear to have been painful as far as the victim is concerned, at least on the basis of the agreed facts. Both offences occurred in the victim’s home, a place where she was entitled to feel safe. The acts of intercourse, the subject of the counts, were not of particularly short duration. The offences were not one-off offences, given the circumstances in which they were committed. The first offence would appear to have been somewhat spontaneous, however the subsequent offence cannot be so described.

23. I assess both offences as being serious offences of their type but not at the upper end of objective seriousness for such offences, noting it is no longer necessary, if it ever was, that the offences be assessed along some type of notional range of objective seriousness.

24. In terms of objective aggravating factors, I have had regard to the fact that the offences were committed in the victim’s home in my assessment of objective seriousness, in order to avoid double counting.

25. There was debate before me as to whether or not the offence involved a breach of trust in the sense that that term is used as an aggravating factor in s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The victim and the offender were friends who met because they happened to be living in the one household at one point in time. The agreed facts do state that the offender was trusted by the victim’s mother to spend time with the victim, though I do not consider it is correct to say that the relationship involved an obligation of care and protection, which seems to lie at the heart of the sense of the concept of breach of trust as used in s 21A of the Crimes (Sentencing Procedure) Act. For that reason I do not find that that aggravating factor is established here.

The Offender’s Subjective Case

26. I mentioned earlier his date of birth is 29 August 1999 so he was 23 years of age as at the date of the offences. He is currently 25. As at the time of the offences, he was in his early twenties. The law recognises that males do not generally mature until their mid-twenties and that some reduction in the need to reflect the sentencing principles of denunciation and general deterrence can be had where the offender is a male below his mid-twenties and I think there is some immaturity here.

27. The offender has no criminal history and his lack of a criminal history, in my opinion, entitles him to leniency in this sentence. The subjective material before me satisfies me that he is otherwise a person of good character. I do not consider that the evidence of his good character in any way facilitated his access to the victim or the commission of the offences. As I said earlier, they became friends when, really by happenstance, they happened to be residing in the one premises. I consider that some weight in the sentencing should be given to the fact that he is a person of general good character.

28. In terms of the documentary material that is before me, there is a Sentencing Assessment Report; a report dated 6 September 2024 by Sam Borenstein; a clinical psychologist; a letter of apology from the offender; certificates from courses the offender has completed in custody and letters of support from his partner and family and friends. The offender did not give evidence on sentence and I have given some consideration to that, given some of the statements he is reported as making to others in the material that’s before me have not been tested under cross-examination.

29. In terms of the offender’s family background, he is an only child who hails from China. He grew up there with his parents and maternal grandmother. He told the psychologist that his childhood was “good, normal”. He also said to the psychologist that he was an average student at school and had no behavioural problems.

30. According to the material before me, the offender came to Australia when he was 19 in 2018 on a student visa. When he came to Australia he lived with a family friend whom he referred to as “Uncle”. He met the victim and her mother when they came to Australia and lived in Uncle’s home as Uncle was indeed a family relative of the victim’s mother.

31. While on a visit to China, the pandemic began and he did not return to Australia until towards the end of 2021, according to the psychological report.

32. He has a girlfriend of some five and a half years standing, who remains supportive of him, despite these offences, and she has been present in Court today supporting the offender during the sentencing proceedings.

33. In terms of his education and employment history, the psychologist records the offender as reporting he did not work in China. Since coming to Australia, he has completed a foundation English course at the University of Technology Sydney and an online Hotel Management course via Griffith University. He has also completed a Construction Management course via Granville TAFE. He told the psychologist that he has worked as a waiter in a restaurant in Australia.

34. The offender told the psychologist he has not used, and does not use illicit substances.

35. In terms of any psychological and psychiatric history, the offender was found by Mr Boronstein to have no history of psychiatric or psychological disturbance, although understandably expressed that he felt “very depressed” as a consequence of his imprisonment, a not uncommon state for young men held in our custodial system. Mr Boronstein found no evidence of psychosis or perceptual disturbance.

36. In terms of his response to supervision, the offender has performed well while in custody according to the Sentencing Assessment Report. He has been employed in the system and has received positive reports about his conduct and employment and has no disciplinary infringements.

37. In terms of his attitude to the offences, the offender told Mr Boronstein that at the time of the offences, he believed that the relationship with the victim was acceptable because the age of consent in China was 14 years. There are statements in the material before me that are indicative of remorse and an acceptance of responsibility for the offences. However, these are tempered by statements that he effectively understood that the age of consent was 14 as in China and he suggested in some of the material that the victim initiated the sexual activity. I will return to the relevance of his belief concerning the age of consent shortly.

38. In terms of the future and his risk of reoffending, while the Sentencing Assessment Report indicates that his overall risk of reoffending is medium, this must be seen in the context of someone who grew up in a culture where the age of consent was in fact 14, the same culture that the victim grew up in and who, on balance, when I review all of the subjective material, did not know that the age of consent in Australia was indeed 16. I note in that regard the Sentencing Assessment Report assessment of his recidivism risk is also tempered by the fact that Mr Boronstein records a low risk of reoffending.

39. There are two factors in this sentencing which, in my opinion, make this case a somewhat unusual one. The Crown accepted that the offender had a lack of knowledge concerning the age of consent in this State and accepts, as I understand it, that both he and the victim, as I have already remarked upon, grew up in a culture where the age of consent is 14 years. That is of course no defence or excuse to the offences but to my mind, as I said earlier, it puts into context the offender’s somewhat equivocal statements of remorse and also impacts upon my conclusion as to his prospects of rehabilitation as well as on my assessment of his moral culpability for the offending.

40. The other factor of significance here is that the Crown accepts, as I understand it, that but for the fact the offender went to the police to seek an apprehended violence order against the victim’s mother and under caution admitted to the offences, he is unlikely to have come to the notice of the police and the authorities and therefore unlikely to be in the situation he currently finds himself in. The Crown accepts, and I agree, that this is a proper concession and in these circumstances s 23 of the Crimes (Sentencing Procedure) Act is engaged. In light of the Crown’s concession, the assistance to the authorities by the offender was significant and useful. Clearly in the main his admissions were considered truthful as they essentially form the basis of the Crown’s case against him. The admissions were timely and clearly relate to the offences for which he is to be sentenced.

41. I note that any discount for his assistance must not result in a sentence unreasonably disproportionate to the nature and circumstances of the offences and I shortly will come back to the level of discount that I have provided to him as a consequence of his assistance to authorities.

Moral Culpability

42. In my opinion there is a reduction in the offender’s moral culpability for the two offences for two reasons: his relatively young age and immaturity which I mentioned earlier, and his lack of knowledge as to the age of consent in Australia, noting that both he and the victim grew up in a culture where 14 is the age of consent.

Other Relevant Sentencing Principles

43. The pleas of guilty were entered in the Local Court and I will allow him a 25% discount of his sentence for the utilitarian value of his pleas. For his assistance to the authorities which I mentioned a moment ago, I will allow him an additional 15% discount of his sentence. I will allow an overall discount of 40%.

44. There is a qualified finding of remorse. He has some understanding of the nature of the offences he has committed on the victim and of their impact. However, in my opinion he still has difficulty in acknowledging that he has committed serious criminal acts against the victim. In that regard I note in particular the content of the sentencing assessment report.

43. He has excellent prospects for rehabilitation given his performance in custody as reflected in the courses he has completed and the content of the sentencing assessment report.

44. In fixing the non-parole period I make a finding of special circumstances based upon the combination of the following: his age, the fact this is his first time in custody and his limited family support in Australia.

45. The sentence will be backdated to the date he entered custody being 21 June 2023. The offences on the two Form 1’s being of a similar type to the principal offences must have some upward impact on the sentences to be imposed on the two principal counts. Given the offences occurred on different days there should be a reasonable degree of accumulation.

46. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing) Procedure Act. Generally speaking, when sentencing for child sexual offending the sentencing principle of general deterrence and denunciation should be given very considerable weight. That is because of the community’s abhorrence of such offending and its unfortunate prevalence in the Australian community. Here for the reasons I have explained, there is some reduction in the need for general deterrence and denunciation to be given considerable weight. I also consider in all the circumstances here, there is less of a need to reflect specific deterrence in the sentence although there is always a need to do so.

47. Sentencing has been said by the higher Courts to involve a process of instinctive synthesis of a number of relevant factors, some of which pull in different directions. This case might be thought to be a classic example of the different factors that can impact upon a sentence and which may pull in different directions.

48. I have considered the statistics and the cases that I have been referred to by both the Crown and by Mr Neild of senior counsel. Of course no two cases are ever the same. As explained earlier, this case has two particularly unusual features that will result in a much lesser sentence than I otherwise would have imposed and of course I am only too familiar with the comments in the Court of Criminal Appeal about the utility or lack thereof of the sentencing statistics that are available to sentencing judges in this State. The maximum penalty has been taken into account as a legislative guidepost.

49. Mr Zhong is formally convicted of both offences. I will firstly record the indicative sentences, having determined to impose an aggregate sentence. In determining the indicative sentences and fixing the aggregate sentence I have had regard to all of the objective and subjective factors I referred to earlier.

50. The sentences Mr Zhong will hear me first announce are what are called the indicative sentences. He will then hear me announce an aggregate sentence which is the sentence and non-parole period that he will serve. It is not arrived at by simply adding up the two indicative sentences. When announcing the aggregate sentence I will tell him the date it starts from, the day that it ends and the date when he is first eligible for parole.

51. In relation to both offences, I consider the appropriate starting point for the sentences prior to the application of the combined discount for the pleas of guilty and assistance to be two years and six months imprisonment. After the application of the combined discount there is an indicative sentence on each offence of one year and six months imprisonment.

52. I impose an aggregate sentence of two years and four months imprisonment with an aggregate non-parole period of one year and three months imprisonment. The sentence commences on 21 June 2023 and expires on 20 October 2025. The non-parole period expires on 20 September 2024. The offender is eligible to be released to parole on 20 September 2024, although I imagine he may well enter immigration custody at that point, although that is not a fact that has played any role in the sentence I have imposed. So it is an aggregate sentence of two years and four months with an aggregate non-parole period of one year and three months which commences on 21 June 2023. I have the sentence expiring on 20 October 2025. I have the non-parole period expiring on 20 September 2024 which is about a week’s time.

**********

Decision last updated: 03 October 2024