Yi Gu v Tony So
[2023] VCC 592
•17 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
AP-22-0548
| YI GU | Appellant |
| v | |
| TONY SO | Respondent |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6-9 March 2023; 17 April 2023 | |
DATE OF JUDGMENT: | 17 April 2023 | |
CASE MAY BE CITED AS: | YI GU v TONY SO | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 592 | |
REASONS FOR JUDGMENT
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Subject: CRIMINAL LAW
Catchwords: De novo appeal against conviction and sentence - Assault on 6 year old son – Charges found and proven - Whether a conviction should be imposed pursuant to s 8 of the Sentencing Act
Legislation Cited: Summary Offences Act 1966; Criminal Procedure Act 2009; Sentencing Act 1991
Cases Cited: N/A
Sentence: Fine of $2000 with conviction imposed
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D. Sala | Slades & Parsons |
| For the Respondent | Mr J. O’Halloran | Office of Public Prosecutions |
HIS HONOUR:
1On 9 May 2022, Mr Yi Gu was found guilty by the Magistrates’ Court of committing two common assaults contrary to s 23 of the Summary Offences Act 1966 against his six year old son Jonathan in February 2017. This charge carries a maximum penalty of 15 penalty units or imprisonment for three months.
2Mr Gu was convicted and fined an aggregate fine of $2,000. He was ordered to pay $129.30 statutory costs. The charge carries a maximum penalty of 15 penalty units or imprisonment for three months.
3Mr Gu now appeals to this Court against his conviction and sentence pursuant to s 254 of the Criminal Procedure Act 2009 (Vic.). Such an appeal proceeds as a rehearing. This court must set aside the sentence of the Magistrates’ Court and must hear the evidence afresh.
4At the hearing of the appeal, the prosecution called the following witnesses:
(a) Siobhan McMahon;
(b) Andy Jonathan Gu-Jiang;
(c) Renjing Jiang;
(d) Shanghai Jiang;
(e) DSC Peta Louise Carboneau;
(f) DLSC Tony So; and
(g) Dr Bindu Bali.
5A number of exhibits were tendered as part of the prosecution case:
(a) Redacted statement of Marina Portelli dated 7 November 2018;
(b) Redacted statement of Tessa Woods dated 28 August 2017;
(c) VARE Transcript of the Complainant 23 August 2017 (and disc);
(d) Agreed statement of facts dated 7 March 2023;
(e) Audio recording of ‘000’ call on 22 August 2017 at 19:17 (and disc);
(f) Series of photographs taken of complainant on 23 August 2017 at Caroline Springs PS (signed by the appellant);
(g) Transcript of ‘000’ call made by DSC Carboneau on 27 August 2017;
(h) Affidavit of Accuracy of VARE recording dated 23 August 2017;
(i) Hospital Intake Summary dated 27 August 2017;
(j) Bundle of 40 photographs of the complainant taken at RCH;
(k) Transcript of ROI dated 4 November 2017;
(l) Report of Dr Bindu Bali dated 5 December 2017 (MFI); and
(m) Medical Photography schedule.
6As is his right the appellant did not give or call any evidence.
Overview of prosecution case
7The complainant, who is referred to as Jonathan in these reasons, was born in 2011. When he was very young Jonathan’s parents separated and he has lived with his mother since then. Family Court proceedings are ongoing. In 2017, by agreement, Jonathan’s father, the appellant saw him on Tuesday afternoons. The agreed arrangement was that Jonathan would be collected from school by his father and would be returned to his mother’s custody later in the evening at a McDonalds restaurant in Deer Park.
8Pursuant to this arrangement, Mr Gu collected Jonathan from Deer Park North Primary School on Tuesday 22 August 2017. On this day, Jonathan was extremely reluctant to leave with Mr Gu, but eventually departed the school in Mr Gu’s car with the encouragement of two teachers. The lengths these teachers had to go to to get Jonathan into his father’s car are detailed in the evidence of Ms Siobhan McMahon, who was Jonathan’s prep teacher. She described how Jonathan was screaming and wailing and was refusing to go with his father. She explained that something similar happened every Tuesday but on this occasion it was particularly bad.
9During the car ride back to Mr Gu’s house, Mr Gu struck Jonathan on the face and caused his nose to bleed (charge 1). Later, at Mr Gu’s house, Mr Gu pushed Jonathan over (charge 2).
10After several hours, Mr Gu drove Jonathan to the McDonald’s restaurant at Deer Park and exchanged custody of Jonathan with Ms Jiang. Ms Jiang and Shenghai Jiang, her new husband, observed the injuries to Jonathan’s face and called the police.
Finding
11Mr Sala, counsel for the appellant, submitted that, put simply, there are two issues that I must decide in this case:[1]
(i) First, did the appellant strike the face of the complainant in the car?;
(ii) And secondly, did the appellant push the complainant over in the house?
[1] Transcript at 211.
12For the reasons that will follow, I find beyond reasonable doubt that the appellant struck the face of the complainant in the car, and pushed the complainant in the house as alleged by the prosecution.
13The teachers were placed in an invidious position. It is likely that the appellant was both embarrassed and frustrated by needing their help to get his young son into his car. He may have taken out that frustration on the young boy when they were out of sight of the school.
Applicable Legal Principles
14The court’s reasoning in resolving this appeal must be consistent with how a jury would be directed under the Jury Directions Act 2015 (Vic.) (JDA) and must not accept, rely or adopt a statement or suggestion that the JDA prohibits a trial judge from making or a direction that the JDA prohibits.[2]
[2] JDA, s 4A.
15The prosecution must prove each of the elements of the charges beyond reasonable doubt. The appellant bears no onus. In particular, he is not required to give evidence and I am not to guess or speculate on what he might have said had he given evidence. The fact that the appellant did not give evidence is not itself evidence of anything and does not strengthen the prosecution case.[3]
[3] JDA, s 41
16The appellant’s record of interview is in evidence. I do not accept the version of events he gave in the record of interview to the extent that it conflicts with the evidence of Jonathan. I have put the ROI to one side and determined that the prosecution has nevertheless satisfied its burden on the basis of the evidence it has adduced.
17Although I am convinced that the appellant’s answers in the record of interview are not true to this extent, I have not simply convicted him on this basis. In these circumstances, I have put aside the record of interview, excluding that evidence in its entirety, and found that the prosecution has proved the appellant’s guilt beyond reasonable doubt on the basis of the evidence I have accepted.
Good Character
18The informant gave evidence that the appellant has no prior convictions and nothing subsequent.[4]
[4] T152.13-16 (So)
19I accept that the appellant is a person of good character. There are two ways in which I use this fact.
20First, I use it when assessing his denials of the prosecution case in his ROI. As a person of good character is generally thought to be more trustworthy than other people, I may be less willing to accept the prosecution’s evidence than if he was not a person of good character.
21Secondly, I use it when determining the likelihood that he committed the offences charged. As it is generally believed that a person of good character is unlikely to commit a criminal offence, I may be less willing to accept the prosecution’s allegation that the appellant committed those offences than I would be if he was not a person of good character.
22This does not mean that I must find the appellant not guilty having accepted that he is a person of good character. The mere fact that a person is of good character cannot alter proven facts – it can only help me to determine whether or not those facts have been proven. In addition, I keep in mind the fact that a person who has previously been of good character can commit a crime for the first time.
23In accordance with these general principles, I have taken into account the appellant’s good character in evaluating both the prosecution case and his denials of that case.
Child witnesses
24I have had regard to s 44N of the JDA which deals with the language and cognitive skills of child witnesses. In this case the reliability - and, perhaps, the credibility - of the evidence of the complainant Jonathan are in issue. Jonathan was 6 years old at the time of the alleged offending and at the date of making his VARE. He was 11 years old when he gave evidence to this Court.
25Pursuant to s 44N(4) of the JDA, I have had regard to the following in assessing the complainant’s evidence:
(a) Children can accurately remember and report past events;
(b) Children are developing language and cognitive skills and this may affect whether they give detailed, chronological or complete accounts and how they understand and respond to questions; and
(c) Experience shows that, depending on their stage of development, children may have difficulty understanding certain language and concepts, may not seek clarification of a question they don’t understand and may not clarify an answer that has been misunderstood.
The Evidence
26In evidence given to this court, Jonathan recalled the incident constituting the first charge, stating that ‘I was inside the car and was driving, like in the middle, ah middle of the way there or something there was like a road and he stopped like at the side and … he kind of hit me to, to the face which led to a blood nose’.[5] He explained in some detail that this occurred at a point in the journey where ‘we were in the start of the highway area’ at ‘the side of the road’.[6] Jonathan said that his father then just continued driving.
[5] T93.1
[6] T93.12-18
27Jonathan explained that when they arrived at his father’s house, his father then dragged him into the house forcefully by his collar. Jonathan demonstrated this in court as he had done at the hospital.[7] Jonathan had red marks on his neck when seen later that day at hospital. These marks were photographed at the Royal Children’s Hospital the next day.[8]
[7] Ex P9, p 2 – ‘gestured – pulled by the shirt collar’
[8] Ex P10, photos 21-25
28Dr Bali examined the photographs as part of the preparation of her report. Her evidence was that the marks, which she explained were ‘petechiae’ or pinpoint bruising, were consistent with pressure around the neck ‘so maybe being pulled by clothing that the child would have been wearing’.[9]
[9] T174
29Although the pulling by the collar is an uncharged act, the evidence about it bolsters Jonathan’s credibility and reliability as a witness.
30With respect to the second charge, Jonathan stated that, when he arrived at Mr Gu’s house, he (Jonathan) was laying or sitting on the side of the couch in the living room.[10]
[10] T95
31He gave evidence that initially Mr Gu wasn’t really doing too much ‘but then he did do, push me, which probably made the eye thing’.[11] When asked where he was pushed, Jonathan explained that ‘it was most likely in the chest, like in the body/chest area’ and he fell to the ground. He said it definitely hurt and he was more scared. When he was asked where it hurt, Jonathan said it was ‘most like a on a side of the face’.[12]
[11] T96.6
[12] T96.30-31.
32Later that same evening Jonathan gave an account of these events to medical staff at the Sunshine Hospital. What Jonathan told the staff is recorded in the clinical sheet which was received in evidence without objection. The following appears in quotation marks attributed to Jonathan:
· ‘He hit me in the car’
· ‘He pushed me and I fell on the ground’
33The notes then record that ‘Jonathan gestured he was slapped. Also gestured – pulled by the shirt collar. They also record: ‘Sustained eye injury after falling to ground’.[13]
[13] Ex P9, p 2.
34It is not disputed by the defence that, if I accept Jonathan’s evidence as reliable and credible, the elements constituting the two charges are established.
Complaint evidence
35I have concluded that Jonathan was a credible and reliable witness and have accepted his evidence bolstered as it is by the complaints he made at the hospital. Jonathan also complained earlier in the evening to both his mother and his mother’s new partner. This happened at the McDonald’s restaurant when they asked about his black eye.
36Ms Jiang gave evidence that when she asked her son what had happened and why do you look like this, Jonathan said ‘he beat me’.[14] She immediately called the police.
[14] T116.24
37Mr Jiang saw the injury to Jonathan’s eye and asked him about it. He told the court that Jonathan told him ‘Father pushed me, ah father pushed me and I fell’.[15]
[15] T113.19-25.
38I accept that Jonathan made these various complaints to his mother, his stepfather and the Doctor at Sunshine Hospital.
39I can use these complaints in two ways.
40First, I can use the contents of his complaints as evidence in the case. I can use Jonathan’s statement to his mother at McDonalds on the night in question – ‘he beat me’ as evidence that that is what happened. I can use what Jonathan told the doctor that the appellant hit him in the car as some evidence that that is what happened. However, it is important not to overstate the significance of this evidence.[16]
[16] Papakosmas at [42].
41When considering the complaint evidence, I bear in mind that just because a person says something on more than one occasion, that does not mean that what he says is truthful or accurate. A false or inaccurate statement does not become true and accurate by virtue of being repeated.
42Secondly, I can use Jonathan’s complaints to assess his credibility. I consider that the fact he made the complaints, the content of those complaints and the close proximity between the time the alleged conduct occurred and the complaints show that his account of the events in question has been consistent.
43Neither the mother nor the stepfather were challenged by counsel for the appellant in relation to this evidence. I accept their evidence and find that Jonathan made the complaints that they say he made.
44Finally, I note that what Jonathan said in court and what he told others is broadly consistent with what he said in his VARE. I say ‘broadly consistent’ allowing for how young Jonathan was at the date of the VARE.
Accidental cause?
45If the injuries to Jonathan had occurred accidently, as suggested by the appellant in his record of interview, it is somewhat surprising that he did not inform Ms Jiang of this as soon as it had happened or, at the latest, at McDonald’s during the handover.
46As to informing Ms Jiang during the afternoon, I accept that the appellant did not have a number for either her or her new partner. However, he had an email address for Ms Jiang.[17] He also had the phone numbers of Ms Jiang’s Aunt who lived 5 minutes away from McDonalds.[18] Ms Jiang’s unchallenged evidence was that these numbers were to be used if something urgent arose.
[17] T122.6
[18] T122.6-11
47There has been no credible explanation for the failure to inform Ms Jiang at the handover at McDonalds. The unchallenged evidence of Ms Jiang’s new partner, Mr Shenghai Jiang, was that the appellant was at the restaurant at the same time as he and Ms Jiang were there. He saw the appellant making a phone call.[19] There was an opportunity for the appellant to tell Ms Jiang about the accident and to discuss whether Jonathan required any medical attention (as he clearly did).
[19] T132.9-11
48Mr Sala submitted that this failure had to be seen in the context of the family law dispute and, in particular, the looming court hearing the following day. Mr Sala submitted that the appellant would have been concerned about the possible use by his former wife of such information. The difficulty with this submission is that the real risk for the appellant concerned the use of the unexplained injuries to Jonathan. If anything the following day’s court case provides a reason for the appellant to explain the injuries to his ex-wife and not to keep the information to himself.
49Under cross-examination by Mr Sala, Jonathan denied that, at the time of the offending, he was aware that a court hearing was occurring the next day, and further, that he never heard his mother and stepdad talking about him ‘never having to go again’ to Mr Gu’s house.
Report by Dr Bindu Bali
50The other evidence that is relevant to my assessment of accidental cause is that of paediatric emergency physician, Dr Bindu Bali of the Victorian Forensic Paediatric Medical Service. Dr Bali prepared a report into this case based on:
(a) the Hospital Intake Summary dated 27 August 2017 (ex P9); and
(b) the photographs of Jonathan’s injuries taken at the Royal Children’s Hospital (ex P10).
51In her report, Dr Bali expresses the qualification on her opinions that ‘opinions based on medical photography are limited with regards to injury interpretation if the subject has not been examined by the author of the report’.[20]
[20] P 5.
52Dr Bali describes injuries to Jonathan’s left hand and forearm, right lower leg, back, neck and face. Dr Bali concludes that various causes are possible of the injuries to the arm, leg and back. However, Dr Bali concludes that:
‘… the collection of injuries on Jonathan’s face and neck are more suggestive of assault than accidental trauma given the varied nature of the wounds and their distribution. Accidental trauma cannot be completely excluded as a cause of ‘black eye’ and facial bruising, but seems much less likely’.[21]
[21] P 7
53It will be recalled that there is no allegation by the prosecution that the appellant caused any injury to Jonathan’s neck. The reference to ‘the neck’ in Dr Bali’s report was the basis of an objection to the relevance of the entirety of her evidence by Mr Sala at the commencement of the appeal. I rejected this objection on the basis that I did not know whether Dr Bali’s opinion would change if the neck injury was excluded from her consideration.
54When the prosecutor sought to tender Dr Bali’s report, Mr Sala raised a similar concern in opposing the tender. He also referred to a further injury to Jonathan’s eye which it is accepted by the prosecution forms no part of the case against the appellant.
55I marked the report of Dr Bali for identification and it is now necessary to determine if it should be tendered absolutely. Before answering that question, it is necessary to refer briefly to the oral evidence of Dr Bali.
56In her oral evidence, Dr Bali was asked about the bruising to Jonathan’s face and concluded that ‘injuries to the face in young children are generally more suggestive of inflicted injury’. This opinion is based, she explained, on the ‘descriptional data about where children get bruises and injuries through everyday childhood activities’.[22] Dr Bali described the black eye as ‘quite a significant injury to the face’. Dr Bali opined that this would have been the result of fairly significant force and ‘would not occur from day-to-day childhood activities or usual day-to-day childhood activities’.[23]
[22] T169.26-30.
[23] T169-170.
57Dr Bali explained that excluding the healing cut above Jonathan’s left eye from her consideration does not alter her opinion about the likely causes of the facial injuries.[24] She also said that excluding the neck injury, the other facial injuries were ‘very unlikely to be the result of an accident’ although she could not rule that out.[25]
[24] T171.23
[25] T183.23-28.
58In cross examination, Dr Bali maintained and if anything strengthened her opinion. She responded to a suggestion by Mr Sala that it is ‘possible’ that the injuries to Jonathan’s face ‘could have come from the child falling’ that this is ‘extremely unlikely’.[26]
[26] T182.6-10
59The report of Dr Bali, as qualified by her oral evidence, is tendered absolutely.[27]
[27] Ex P13.
Record of Interview
60Before leaving the question of whether Jonathan’s injuries may have occurred accidently, it is necessary to refer briefly to the appellant’s record of interview. The appellant told police that the allegations made by Jonathan had to be understood in the context of the family law dispute between himself and his former wife. He told police that Jonathan’s mother had ‘made up the story and exaggerated things’.[28]
[28] ROI, Q 46.
61Later in the interview when asked by police why Jonathan would have made the allegations against him, the appellant told police he thought that Jonathan ‘was directed by his mother’ ‘because his mother doesn’t want him to see me in the future, so they want to make things large. They want to make things very worst for me’.[29]
[29] ROI, Q121-123
62This was never put to Ms Jiang by the appellant’s counsel. In his closing submissions Mr Sala did not present a case of concoction. He sought to distance the appellant from what he himself had told police.
63In any event the unchallenged evidence before me belies any suggestion that Jonathan’s mother put her son up to making the complaints. Ms Jiang was concerned that the police report she found in her letterbox early in the morning of 23 August 2017 had over-stated the extent of Jonathan’s injuries sustained the previous day while in the appellant’s care. She was particularly concerned to draw to the attention of police that an injury to Jonathan’s left eye (which can be seen in photos 1 and 2 of ex P6) was an ‘old injury, not from this time’.[30] The police had identified this as a relevant injury because it was ‘visible on the complainant’s face when [they] spoke to him’.[31] It had not been identified as relevant by either Jonathan or his mother.[32]
[30] T124.3-18
[31] T142.24-27; T143.1-3 (Carbonneau)
[32] T142.28-31 (Carbonneau)
64For the above reasons, I have found the charges proved to the criminal standard.
Appeal against sentence
65On Monday 17 April 2023, I heard submissions from the appellant and respondent regarding the appropriate sentence to be imposed in this case.
66Sentencing in a case such as this is governed by s 5 of the Sentencing Act 1991 and the common law. The Court is required to synthesise all relevant considerations and impose a sentence that is appropriate in the case before it.
67I consider that the offending for which Mr Gu has been found guilty is serious. The two assaults were inflicted on his six year old son, Jonathan, who was a vulnerable victim in his care. Jonathan was entitled to feel safe in the care of his father and, rather than feeling safe, he sustained injuries, including a black eye and a blood nose, at his father’s hands.
68The Court has received a Victim Impact Statement completed by Jonathan and dated 8 November 2018, when he was seven years of age. It is apparent from the statement that the offending by his father caused him great fear, caused him to cry, and made him feel sad.
69The experience of the courts in relation to family violence is that the impact of such offending can be longstanding and affect victims for many years beyond the date of the original offending.
70Mr Gu contested the charges at both the Magistrates’ Court at first instance and at this Court on appeal, as is his right, and Jonathan was required to give evidence both at the Magistrates’ Court and was cross-examined in proceedings before me. It is accepted by his counsel that Mr Gu has not demonstrated any remorse for his offending or insight into his conduct.
71Whilst he is not to be punished for this, Mr Gu does not receive the reduced penalty that is appropriately given by the courts in cases in which offenders accept responsibility for the offending and express remorse for it by pleading guilty.
Should a conviction be imposed?
72The central issue in this matter is whether the penalty imposed by the Court should be imposed with or without conviction.
73In support of his argument that no conviction should be recorded, the appellant’s counsel, Mr Sala, points to Mr Gu’s lack of prior convictions and lack of any subsequent criminality, and makes the submission that as a 52 year old man he is entitled to significant credit for these matters. I accept this submission.
74Mr Sala also points to the delay in finalising this case, some of which is, of course, attributable to the appeal that Mr Gu has brought in this Court, but much of which is not his responsibility. Delay is relied upon principally as evidence that Mr Gu has good rehabilitation prospects, in light of there being no further offending.
75I heard evidence on the plea from Mr Gu’s current wife, with whom he now has a four year old daughter. His wife gave evidence that he is a good father and acts responsibly to his daughter, and there is no suggestion of any further offending in relation to her.
76The question of whether or not the Court should impose a conviction is governed by s 8 of the Sentencing Act. Section 8 provides that, in exercising its discretion whether or not to impose a conviction, the Court must have regard to all of the circumstances of the case, including:
(a) the nature of the offence; and
(b) the character and past history of the offender; and
(c) the impact of the recording of a conviction on the offender's economic or social well‑being or on his or her employment prospects.
77In applying these factors to the case presently before the Court, it is conceded by the appellant’s counsel that this is serious offending; I accept this characterisation of the offending, whilst acknowledging that this is certainly not in the category of the most serious cases of assault that come before this Court.
78In relation to factor (b), this weighs in favour of a non-conviction disposition. As I have accepted in the course of the decision on the appeal, Mr Gu is a man of good character and his past history discloses no previous offending.
79In relation to factor (c), the evidence before the Court is that Mr Gu has a commerce degree and has worked in Australia for a number of years, and that presently he is working as a bookkeeper. It is a requirement of his current employment that he has a Working with Children’s Check – apparently due to the nature of his employer’s client base – and it is conceded by his counsel that, regardless of whether or not a conviction is imposed, he will lose his Working with Children’s Check and therefore his current employment.
80The more difficult question is what the impact of a conviction will be upon Mr Gu’s future ability to obtain work, particularly in his chosen field of bookkeeping and accountancy. Were this a case involving a conviction recorded for a dishonesty offence, I would accept that it is very likely that a conviction would impact deleteriously upon his future ability to obtain work.
81However, this case involves different offending, and it is not clear to me that there is anything greater than some risk that a conviction in this case may affect his ability to obtain employment in his chosen field. I note also that he has worked in other capacities, including as a cleaner; it seems unlikely to me that the recording of a conviction would result in Mr Gu being unable to obtain such employment in the future.
82The appellant relies on the case of York v The Queen [2014] VSCA 224. I note that the offending in York was somewhat similar to this case, and the offender in that case also had no prior convictions.
83In York, the Court of Appeal overturned the decision of this Court and resentenced the appellant to a fine without conviction, taking into account, amongst other things, the potential impact of a conviction. I note, however, that one of the matters the Court took into account was the plea of guilty and its accompanying utilitarian benefit, which does somewhat distinguish that matter from Mr Gu’s case.
84In the respondent’s written submissions, reference is made to recent decisions in the Court of Appeal which have emphasised the importance of stern sentences in cases of family violence, to ensure that general deterrence is properly effected by sentences imposed in such cases.
85I have taken all of the submissions into account, and as required by the Sentencing Act I have weighed up all the relevant considerations. The principal sentencing consideration in the case is general deterrence; in light of Mr Gu’s lack of remorse and limited insight into his offending, specific deterrence also has a role to play in ensuring that he does not commit further offences of this nature.
86The Court is also required to denounce the offending and ensure that there is protection of the community in relation to the sentence that is imposed.
87I consider that the appropriate penalty in this case is an aggregate fine of $2000 and I impose this with conviction.
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