DPP v Cui [2025] VCC 1774

1. The background to the offending is that you were born in China in September 2001. You came to Australia as an overseas student in 2019 to study at Melbourne University. Following the outbreak of Covid and after having difficulty in settling into Melbourne without family support, you returned to China. You returned to Melbourne in around March 2022 to recommence your studies in psychology, and in April 2022 you commenced a relationship with another international student, the complainant. She was also studying at Melbourne University and was about your age.
2. Soon after the commencement of the relationship in June, the two of you moved in with each other in a high-rise tower in Little Latrobe Street. The relationship itself was marked by volatility. Both of you were relatively young and immature. Arguments over minor matters ensued between the two of you, but you reconciled quickly.

1. The incident giving rise to the charge of kidnapping commenced in Carlton. The two of you had met after classes at the University at the Universal Café in Lygon Street. There were other friends of you both there. An argument ensued when the complainant asked you to put her photo as the background on your homepage on WeChat. Your photo was on her phone. She explained to you that she had already agreed with one of her friends to use her photo as the background. There was an argument and the complainant was not happy and became upset because of your very strong attitude towards her. She claimed that you would not listen to her. She felt you could not communicate with you and decided to leave the restaurant to go to see her friends. She went out onto the street. You remained behind to pay the bill and then caught up with her.
2. Outside in the street there was something of a dispute between the two of you over the complainant's tote bag containing her computer. It fell to the ground and there was slight damage to the bag. You picked it up. The complainant was still determined to go to see her friends. You then proceeded to grab her by the wrist and, in her words, drag her back to the apartment via Lygon Street and Swanston Street.
3. When the two of you were in the vicinity of the City Baths you were observed by two overseas RMIT students on their way to Melbourne Central. They were concerned about what they saw. One of them gave evidence that the complainant was trying to pull her arm away from you unsuccessfully. When she got free you would hold her arm again. She said that the complainant looked afraid and you looked angry. The witness was so concerned that she rang 000. She had also taken some photographs that were not available in the trial.
4. When the witness approached you to seek to assist the complainant you told her, in no uncertain terms, that it was none of her business because the complainant was your girlfriend. When the lights changed the two of you walked off and you were holding the complainant's arm and walking really fast, according to her evidence. The witness said she was screaming at you. When you arrived at the apartment foyer you gave evidence that you told the complainant that she could either go with the woman, the witness, or explain that the two of you were having an argument.
5. The complainant decided to go with you because she did not want to get into any more trouble. Your account of the whole incident was that you wanted to take her back to the apartment because in your view, if she had gone with her friends she would have got drunk and not come home. The jury must be taken to have rejected your implied assertion that what you were doing was in effect looking out for the welfare of the complainant.
6. The jury found you guilty of kidnapping based on your conduct against the complainant after she sought to go to see her friends. Your counsel submitted that the offending here was at the lowest level for a charge of kidnapping. I do not agree. While it can be said to be at the lower end of the scale, it is clear from the evidence of the complainant and that of the two eyewitnesses, that the complainant well and truly had no choice but to accompany you back to the apartment when she had made it perfectly clear that she did not wish to do so. Whilst the offence might also be characterised as false imprisonment, the jury found you guilty of kidnapping and you must be sentenced accordingly.
7. Importantly, your account was that you wish to have the complainant come back to the apartment as you were concerned if she went off to her friends she may get drunk.
8. In contrast to other cases involving kidnapping, there was no financial motivation involved in your conduct, but a misguided attempt to look after her.
9. Also, in considering the seriousness of the offence here the complainant did continue in the relationship, although you became angry because the police had become involved and a FVIO was put in place.

The family violence intervention order and second incident

1. As the police had been contacted by the bystander they turned up later at the apartment. The complainant showed them some minor abrasion on her arm, or swelling, redness. As a result of the police attending, a family violence safety notice was issued to you and later a final family violence protection order.
2. There was a later allegation of an incident, the second incident on the indictment, between you and the complainant between 12 and 19 September, where the complainant asserted that you had smashed her mobile phone, and you were charged with property damage. You admitted that there had been an earlier incident where a mobile phone was broken, and you had replaced it. You were acquitted of this particular charge and the additional charge of breaching the FVIO. On the complainant's account you got angry about the intervention of the police, and blamed her for the FVIO.
3. The events prior to and on 12 September on your account led to you feeling a lot of pressure, and you were depressed and anxious and wanted to go and see your family. Your family arranged for you to see a psychiatrist on

12 October in China, where you were found to be suffering from a mixed anxiety and depressive disorder. You were prescribed medication. You were in communication with the complainant while in China and she urged you to return to Melbourne, which you did. You told her that you were taking medication. She denied that this occurred. You maintained that you told her that after taking the medication you felt like, 'I was living in a dream every day. It was different.' Your evidence was that she said that she could understand it because she experienced the same thing and was also on medication. The complainant denied that she was on medication.

1. On your account, a few days before 26 October, the two of you were watching pornography, when a particular practice involving a female urinating during intercourse came up. The complainant had said to you, 'When I climaxed, I feel like I wanted to pee', apparently known as 'squirting'. Because the complainant had initiated the conversation you formed the view that she was really interested in it.
2. The complainant in her statement to the police subsequently described it as your fetish. On 26 October in the early hours of the morning the two of you were having consensual intercourse with the complainant on top.
3. The complainant said to you that she wanted to urinate. You told her to do it on the bed. You grabbed her and would not let her go. The two of you struggled for a while she was telling you several times she said no to the intercourse continuing. She also said she did not want to pee on the bed. After what she said was six or seven minutes, she was able to get off the bed and enter the adjacent bathroom or ensuite.
4. You followed her and stopped her from using the toilet. You pushed her into the shower and asked her to urinate in the shower. She said she wanted to use the toilet. You pushed her against the wall of the shower, she braced herself with her hands, and you penetrated her from behind. You persisted in ordering her to pee in the shower and she was able to do so. Finally, she was able to get rid of you using a lot of strength and went to the toilet.
5. Under cross-examination she was unable to recall how the intercourse ended. You gave evidence that she straightened up and you separated.
6. The incident in the bedroom gave rise to a charge of rape on the basis that you failed to withdraw from the complainant after she indicated that she did not consent to continuing intercourse. You were acquitted of that charge.
7. The events in the shower give rise to charge seven, the charge of rape. Your account of the event was that when the complainant indicated that she wanted to urinate, you believed that she wanted to engage in the practice of squirting and you were effectively encouraged her.
8. When she went into the bathroom she was flirtatious and she smiled at you. You denied pushing her into the shower, and said she walked in. You then proceeded to penetrate her from behind, an event that you said had occurred previously. She told you that she could not urinate and then she straightened up and you separated. The complainant went to the toilet. She then returned to the bedroom.
9. The two of you then had a conversation on the bed. On the complainant's account you told her that she was not obedient. There was a bit quarrel and you tended to become more and more angry. Under cross-examination the complainant agreed that you effectively said, 'He thought I agreed'. She maintained however there was no agreement to pee during the sexual activity.
10. She did agree that she had previously watched pornography. She also conceded that there had been a discussion about a safe word, and that you had not raised that with her in that conversation. You maintained that you raised it in that conversation.
11. By their verdict the jury must have accepted that you did not have a reasonable belief that the complainant had agreed to the intercourse in the shower. Your counsel however submitted that subjectively, on the basis of your account, you believed that she had agreed. It was put that this lowered your culpability for the offence. I accept that submission.
12. You got angry during the discussion on the bed, and then proceeded to assault the complainant by grabbing her hair, you tore her clothes and broke her necklace. This constitutes a charge of common assault, Charge 8. To escape your fury the complainant then went to another room in the apartment. She was telling you she wanted to end the relationship.
13. You then heavily slapped her face, and you slapped her several times, and she screamed. She begged you not to hit her, and you made a reference to the police coming, or you assaulting her further. You also took her mobile phone and passport at that point.
14. The next day she found her cheek quite swollen, and there were minor abrasions on her cheek, on her right cheek. The slapping to the face, the continual slapping to the face, constitutes Charge 9, recklessly causing injury. You had pleaded guilty to the earlier alternative charge of common assault, Charge 10, before the jury, but that was not accepted by the prosecution.
15. The next day the complainant met with some friends who urged her to go to the police. She did not tell them about the alleged rapes, but she did tell them that you had beaten her. She declined to go to the police and contacted her parents, who suggested if she did so there may be revenge.
16. She stayed at a friend's house that night. The complainant conceded that she had previously testified that her parents had said to her that because you were emotional and you still had a relationship with her, she should give you another chance to correct yourself. After the complainant stayed with a friend that night, on the following day you were engaging in self-harm, and sent photographs to the complainant, and threatened suicide in order to have her return to you.
17. The complainant recorded part of a phone conversation with you where, although it was in Mandarin, in no uncertain terms you demanded that she return to you, and the translated copy was in evidence. The complainant did return to the apartment in due course and the relationship continued.
18. At the end of the academic year both of you returned to your respective regions in China. Evidence was led of the continuing relationship between the two of you, including meeting up in China in her province of Wuhan, and in other places. At the trial a volume of text messages, or WeChat messages, elaborating the negotiation of a continuing intimate relationship between the two of you, including sexual activities, was tendered, and various other terms of endearment between the two of you, and proposed sexual activities.
19. You returned to Melbourne in March 2024, as did the complainant. The complainant moved into the same apartment block that you were in, but on a different floor, one floor between the two of you, and the two of you continued the relationship.
20. On 28 March the police conducted a field interview with you in relation to the events in September 2023, the first incident. You admitted that you maybe had hurt the complainant, and that you were at fault in that discussion with the officer recorded in body camera footage.
21. Your relationship with the complainant continued, and the fourth incident arose on 29 April 2024. The complainant had some of her belongings in your apartment. There was on her account an argument between the two of you, and you proceeded to request her to leave the apartment, and your conduct thereafter was captured on the CCTV from the lift foyer on that floor.
22. It showed you throwing her belongings out of the apartment into the foyer and twice throwing a bag containing clothing and other items at her, hitting her in the head area. That throwing of the bag constitutes Charge 12, common assault. Thereafter, this was also captured on CCTV footage, you dragged her into the apartment, causing some minor abrasions on her knees and arms. That constitutes Charge 13, false imprisonment, and Charge 14, recklessly causing injury.
23. These events were also the basis of Charge 15, contravention of the family violence intervention order. You pleaded guilty to those charges before the jury panel. In the course of the trial you tendered photographs taken on

30 April 2024 showing that you had received scratches in that altercation on the day before with the complainant.

1. At the complainant's suggestion, on 1 May you sent to the complainant a fulsome apology for the events the previous day, which is Exhibit P6A, wherein you admitted you failed to control your emotions and let her down. You refer to events last year and said you had no reason or excuse. You realised you were mistaken and accepted all responsibility. You did not want to make excuses.
2. There remained contact between the two of you, but there was a further dispute on 27 May over a failed date of some sort, when you sent an abusive text message to her. The following day the complainant went to the police with a written statement that ultimately led to your arrest.
3. As late as 25 June that year, the complainant had been sending communications to you. Thereafter you were charged and the matter ended up in this court.

1. The charges for which you are to be dealt with arise out of a volatile relationship between two young people. You had significant mental health issues over the period until the final rupture of the relationship in May 2024. In relation to all of the incidents, the complainant was prepared to resume the relationship with you until that final rupture.
2. Each of you thought that you loved each other. Your mental health condition in October 2023 is captured in the medical report from the hospital in China that you visited on 12 October when you returned to China, apparently at the suggestion of your family.
3. The contents of the report, which is Exhibit 2, on the plea, are synthesised in paragraph 16 of the report of Dr Staios, which is Exhibit 4 on the plea. I incorporate the whole of that paragraph into my sentencing reasons. It reads:

Overall, the documentation depicts a young adult experiencing a severe episode of anxiety and depression, characterised by emotional lability, somatic distress, interpersonal withdrawal, impaired concentration, disrupted sleep, appetite changes, and a sense of hopelessness. His difficulties appear to have emerged in the context of psychosocial stressors and were compounded by a subsequent interpersonal and legal crisis abroad. The combination of clinical interview, psychometric assessment, and interpreted physiological data all align with a presentation of significant emotional dysregulation and mood disturbance requiring ongoing psychological and psychiatric intervention.

4. Dr Staios indicates that at the time of your examination in China you were suffering from severe depression and had moderate anxiety.
5. On the personality assessment it notes emotional reactivity with a tendency towards impulsive or maladaptive responses under stress. You were in this volatile relationship with the complainant, and all your offending, save for the rape charges, could be described as a maladaptive response to stress.
6. In the light of the contemporaneous report of the hospital, and the later assessment of Dr Stelios, I am of the view that your moral culpability for all the offending is reduced by your mental health at the time.

1. Having made that assessment, I turn to conventional matters in mitigation. Your counsel put a number of matters in mitigation which I take into account in your favour. First, you offered to plead guilty to the offences involving violence on the indictment in May 2025. I accept that this is evidence of remorse. You also did plead guilty to Charges 12 to 15 before the jury, as I have indicated, in the fourth incident. You are entitled to the benefit of that plea.
2. Next, your letter of apology to the complainant I do regard that as evidence of remorse.

1. Your mental health is an important consideration in sentencing and in your state at the time of the offending, as I have indicated.
2. As noted after the first incident in September 2023 you returned to China and was seen by a psychiatrist and prescribed medication.
3. The report of the psychologist notes that you had at the time moderate psychological problems and moderate to severe anxiety symptoms, and severe depression symptoms. It further notes that your emotions are excessive and reactions to similar stimuli are overly intensive.
4. Next, your counsel relies on delay. There has been some delay in the matter from when the complainant first went to the police, to the time when the trial finally arose. However, as a result of you being charged, your passport was seized, and you were unable to return to China. Thus you were left in Australia without any family support, facing this matter hanging over your head until it was finally resolved by jury verdict on 10 November this year.
5. While you continued your studies over the period, this still makes that period more burdensome for you and I take that into account in your favour.

1. In considering your prospects of rehabilitation, the overall trajectory of your volatile relationship must be considered. Is it notable that at all times you have been prepared to accept responsibility for your conduct. This can be seen in the apology on 1 May, and after the fourth incident.
2. It is also clear from the volume of messages tendered in evidence in the period up until the complainant went to the police, that the two of you were seeking to establish a relationship and addressed the difficulties that had ensued in the relationship. It is significant that after the police arrived after the Lygon Street incident, the complainant indicated to the police that she did wish to continue the relationship with you.
3. On 26 September you consented to a final FVIO. After that there was the further incident and then you returned to China for treatment. After a week you came back to Australia and that is when the third incident occurred.
4. Notwithstanding that you have been found guilty of rape in the third incident, it appears that the complainant did not raise the issue of the sexual offence that had occurred that night until she went to the police in late May the following year. It was rather the violence that you perpetrated on the complainant that the complainant was concerned about in the third incident, and the two of you, as I have indicated, continued a sexual relationship after you resumed your relationship in late October 2023.
5. The prospects of your rehabilitation are linked to you properly addressing your mental health condition. You are on a journey to address that by way of treatment that commenced after you returned in October 2023. In relation to your interpersonal behaviour, you commenced involvement in a men's behaviour change course in April 2025, and you have completed 17 sessions.
6. In mitigation your counsel also put to me the burden of imprisonment is significant in this case. It is clear that you are a foreign national, you will be isolated in custody, with few native speakers, although you have reasonable English. You will be isolated from your family, and I am satisfied that this will make the burden of imprisonment greater, and that is certainly supported by the opinion of Dr Staios.
7. In sentencing in this matter, I have had regard to your age: you are a young offender. You are also of prior good character and I have taken into account a comprehensive and moving letter from your parents that was tendered in evidence. They have been in Court on the trial to support you in the course of the trial, and no doubt they are feeling significant shame in you having brought your family into disrepute by your conduct, which makes these proceedings all the more burdensome for you.
8. The offending occurred in circumstances where you were in a volatile relationship with the complainant. Both of you were in a foreign country where you were isolated from your families and living in effectively an overseas student cocoon.
9. Both of you were too immature to properly address, in a foreign country, the difficulties that you were having in your relationship.
10. In relation to the charge of rape, it is regarded as one of the most serious offences on the criminal calendar. It has a maximum penalty of 25 years' imprisonment, and a standard non-parole period of 10 years.
11. It has been said, however, in a number of cases that the offence occurs in a wide variety of circumstances. The nature and seriousness of the instant offence must be considered, and the sentence must be the result of an instinctive synthesis. It is also necessary that I consider current sentencing practices.
12. Your counsel referred to a number of pre-standard sentencing decisions to guide the approach, namely Alverta, Maddox and Dyer. She also referred to post standard sentencing decisions in Clarke and Humphries. The learned prosecutor referred to the decisions in Samuels, Flynn, Henson and Perry. A number of those decisions are before standard sentencing. She also referred to Humphries.
13. The learned prosecutor also referred to sentencing statistics, as well as a number of pre-standard sentencing decisions, and sentencing statistics in relation to the crime of rapes and kidnapping.[1]
14. As I have indicated, the crime of rape can occur in a wide variety of circumstances, and must be considered in the context of the relationship, if any, between the parties. Here I am of the view that this offence is in the lower range for a number of reasons. These include, as submitted by your counsel, your youth, the fact that the sexual relationship continued, and the matter did not seem to be an issue with you until some months later when the relationship fractured.
15. I am satisfied that the evidence of affection exposed in the various text messages and photos in evidence subsequent to the October event, support a conclusion that the complainant did not see the event as a major milestone in the rocky relationship between the two of you. In sentencing you for Charge 7, the rape charge, I also take into account your remorse and your efforts at rehabilitation, and I note that there is no VIS.
16. In sentencing you for the individual counts in the offending, I also have to some extent applied the single transaction rule to limit the extent of cumulation between the convictions in relation to the third and fourth incidents. In sentencing you it is also relevant that in a sense all the offending arises out of a single dysfunctional relationship between two immature individuals in a foreign country with limited social circles and lacking family support.
17. Given the number of charges, I have also stepped back and had a final look at the overall sentence to assure that it is proportionate to your overall offending. I have also taken into account, as I have indicated, your efforts at rehabilitation. You have progressed your education. You have now achieved a bachelor's degree in psychology at Melbourne, and you are partially way through another degree, a master's degree in food science, which you hope to be able to utilise in your father's business in China, where obviously both your father and mother appear to be significant business people up there.
18. So upon your completion of your studies and any sentence you will be able to return to China. I have taken all the matters that I have discussed into account in fixing a sentence in relation to all the charges, and in particular the charge of rape. The burden of imprisonment, among other things, and the circumstances of the offending and the context that I have discussed, leads me to a sentence that is below the standard sentence for the reasons that I have articulated.
19. Further, in order to enhance your prospects of rehabilitation, I regard it as appropriate in the interests of justice to fix a non-parole period lower than that specified in the Act. I have taken into account all the matters put on your behalf by your counsel, and the matters put on behalf of the prosecution by the learned prosecutor.
20. Having synthesised all those matters, and had regard to the current sentencing practices, had regard to the standard sentence and the maximum penalty, for each of the charges, I sentence you as follows. Could you please stand?

1. Charge 1, kidnapping, you are sentenced to 18 months' imprisonment.
2. Charge 7, rape, you are sentenced to two and a half years' imprisonment. That is the base sentence.
3. Charge 8, common assault, and Charge 9, causing injury recklessly, and Charge 11, contravention of an order intending to cause harm or fear of safety, I sentence you to an aggregate sentence on those three charges of

12 months' imprisonment. 4. Charge 12, common assault, the fourth incident, Charge 13, false imprisonment, Charge 14, causing injury recklessly and Charge 15, contravention of order intending to cause harm or fear for safety, I sentence you to an aggregate sentence of 18 months' imprisonment. 5. The sentence on Charge 7 is the base sentence. I order that six months of the sentence on Charge 1 be served cumulatively on the sentence on Charge 7, the base sentence, four months of the aggregate sentence on Charges 8 to 11, be served cumulatively on the sentence on Charge 7, and Charge 1, and six months of the aggregate sentence on Charges 12 to 15 be served cumulatively on the other sentences. 6. This makes a total effective sentence of three years and 10 months. I order that you serve a non-parole period of two years before being eligible for parole. Are there any other orders sought, Madam Prosecutor? 7. MS NOONE: Your Honour, just in relation to pre-sentence detention is it one day. 8. HIS HONOUR: I declare one day presentence detention, and I have also taken into account as a matter of totality, that you have in fact you have spent something like four weeks in custody as a result of a later incident between you and the complainant, for which you were dealt with in the Magistrates' Court, and the facts of which did not come before me. 9. It is an antecedent in a sense, and I have taken it into account in terms of the overall sentence that I have fixed. To explain the sentence, I have taken into account everything you have put to me, I have characterised the seriousness of each of the offences. Kidnapping carries a 25 year maximum. 10. I have determined to sentence you to 18 months' imprisonment. Rape carries a 25 year maximum with a standard non-parole period of 10 years. I have determined to sentence you to two and a half years' imprisonment. On the third incident, on the incidents following the rape, common assault, pulling her hair, causing injury, the punching or the slapping, and the contravention of the order, an aggregate sentence of 12 months' imprisonment. 11. On the fourth incident, the common assault, which is the throwing the bag at her two or three times in the face, the false imprisonment, dragging her into the unit, and dragging her across the concrete, causing her injury to her knees, I've sentenced you to an aggregate sentence of 18 months' imprisonment. 12. I have ordered that six months of the kidnapping charge sentence, four months of the aggregate sentence following the rape, six months of the aggregate sentence in the fourth incident be served cumulatively on each other, making a total effective sentence of three years and 10 months, and I order that before you be eligible for parole you must serve two years' imprisonment. 13. I declare that you have served one day sentence on these matters. I want to thank counsel on the plea and counsel in the trial for their assistance in the matter, and I want to thank all the interpreters that we had over the duration. I thank Mr Cui's parents for coming down to support him in the course of the trial. 14. I will hand to the parties the chart of the sentences that I have imposed that just sets it out. Adjourn the Court sine die.

[1] Judicial College of Victoria, Victorian Sentencing Manual, (4th ed, 22 January 2025), 378; 414.