R v Zhang
[2013] VCC 1831
•22 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00929
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZI LI ZHANG |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 November 2013 | |
DATE OF SENTENCE: | 22 November 2013 | |
CASE MAY BE CITED AS: | R v. Zhang | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1831 | |
REASONS FOR SENTENCE
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Subject: Sentencing
Catchwords: Indecent Assaults
Legislation Cited:
Cases Cited:
Sentence: 33 months imprisonment with non-parole period of 18 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Mandie | Office of Public Prosecutions Victoria |
| For the Accused | Mr J. Gullaci | James Dowsley & Associates |
HIS HONOUR:
1 Zi Li Zhang, on 4 October 2013 at Ballarat you were found guilty by a jury of two charges of indecent assault.
2 An earlier trial was begun but aborted the same day as empanelment. The proceedings were then adjourned until later in the week awaiting a jury panel.
3 You were charged with indecent assault (Charge 1) and rape (Charge 2). However, after a trial lasting about a week the jury found you guilty of Charge 1 and not guilty of the rape charge, Charge 2, but guilty of the alternative to Charge 2, a charge of indecent assault.
4 Of course I am familiar with the factual circumstances, having presided over the trial. Nevertheless, the prosecutor Ms Mandie opened the circumstances of the offending by reading from a document headed, "Plea opening and sentencing submissions", which was tendered. There is no issue between the parties concerning the factual matters on which I am required to sentence you.
5 The offending, which occurred on 12 August 2012, occurred whilst you were providing a professional massage to the complainant, who was 23 at the time. You worked in this occupation, albeit without formal qualifications, from mid 2012. You learned Chinese style massage in China, your country of origin.
6 Charge 1 concerns touching the complainant's anus with your hand, or more particularly your thumb, "skin on skin". The indecent assault alternative to Charge 2 concerns touching her vaginal area by placing your hand under her underwear or briefs. The verdict of not guilty on the charge of rape means that the indecent assault alternative to Charge 2 involves no penetration or clitoral touching. Both touchings occurred simultaneously.
7 A victim impact statement was tendered. It is clear that your offending has had a significant impact, as would be expected, on the complainant.
8 After the verdict, you spent about three and a half weeks in the police cells at Ballarat before being brought to the Melbourne Assessment Prison. The delay between verdict and plea hearing was because your legal advisors wished to have you psychiatrically assessed.
9 Dr Lester Walton undertook that assessment on 15 November and a report from him was tendered.
10 Dr Walton made no diagnosis of psychiatric illness. He thought you were of normal intelligence. He noted your current anxiety and depression resulting from your disappointment at the jury verdicts.
11
Dr Walton briefly sketched your history, noting that you were aged 50, raised in Shanghai and came to Australia being sponsored by a relative. You came to Australia in 2000. You married a Chinese woman in 1999 and have a
14 year old son but your marriage broke down in 2003 and you are currently unaware of the whereabouts of either.
12 Dr Walton considered that you endure imprisonment much more onerously than others because of your language difficulties and your isolation from family and support.
13 As a prisoner sentenced for indecent assault, you will be invited to participate in sex offender treatment; however Dr Walton thought this was not "clearly indicated clinically."
14 You have no prior criminal history and Dr Walton considered your lack of antisocial background was "reassuring in terms of the risk of recidivism generally and in relation to sexual offending in particular."
15 He also noted that because you deny the offending, you have no capacity to express remorse.
16 You are not entitled to the benefits that flow from a plea of guilty.
17 The offending involves a breach of trust placed in you by your victim who was entitled to expect professional treatment in a sensitive encounter where she was vulnerable.
18 It is conceded that immediate imprisonment is the only available penalty.
19 You raise no objection to me making an order for the taking of a forensic sample and I will make the order. My reasons will appear in the order. You must understand that a police officer may use reasonable force to obtain the sample.
20 You have served 49 days pre sentence detention. This period is to be reckoned as time already served on the sentence I will impose.
21 The prosecution submitted that a total effective sentence of between 30 and 42 months with a non parole period of between 18 and 24 months was appropriate.
22 Mr Gullaci took issue with this range, "particularly the increase in the sentencing range provided on 21 November 2013, compared to that provided on 9 October 2013." The range submitted on 9 October 2013 was a sentence between two and three years with a non parole period of between 15 and 18 months.
23 This amended range was determined after more consideration than had been given on circuit, as well as consideration of the contents of Dr Walton's report.
24 Mr Gullaci also submitted that I should consider the imposition of a partially suspended sentence. In my view, parole supervision after release from prison is desirable.
25 Mr Gullaci argued that given your age, your lack of prior criminal history, the absence of any subsequent or pending matters, I should conclude that your rehabilitative prospects are good. Your past good history does encourage this view. On the other hand, because you deny the offending, there is no evidence of remorse or insight that might otherwise provide evidence of rehabilitative potential.
26 The sentence I impose will be intended to meet the objective of specific deterrence, and I will fix a non parole period intended to permit the opportunity for and encourage rehabilitation under supervision.
27 Of course other sentencing objectives identified in the Sentencing Act will remain relevant.
28 As discussed during submissions, I was tempted to impose an aggregate sentence, but because of a lingering doubt concerning the legislation, I will impose discrete sentences. Of course I also need to focus on what I consider to be the appropriate total effective sentence.
29 Although perhaps not strictly within Dr Walton's field of expertise as a psychiatrist, I am aware of his extensive experience with the prison system and his opinion concerning the particular difficulties you will encounter in prison coincides with my own.
30 On both charges of indecent assault, you will be convicted and sentenced to 21 months' imprisonment. Charge 1 is to be the base sentence. I order that 12 months of the sentence imposed on the alternative to Charge 2, indecent assault, be served cumulatively on Charge 1, otherwise the sentences are to be served concurrently.
31 That makes for a total effective sentence of 33 months imprisonment. I fix 18 months as the period you must serve before being eligible for release on parole. You can sit down, Mr Zhang.
32 Is there anything that needs correcting that counsel can identify?
33 MS MANDIE: No, Your Honour.
34 HIS HONOUR: Thank you both for your help.
35 MS MANDIE: Sorry, Your Honour. Just the draft orders for - - -
36 HIS HONOUR: Sit down, Mr Zhang. Thank you.
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