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[2018] VCC 1819
General information, not legal advice.
County Court of Victoria
2018-11-07
Ms J, Mr P
Original judgment source is linked above.
1 Hong Chew Tan, you have pleaded guilty to one charge of recklessly causing serious injury. The maximum penalty applicable to that offence is 15 years' imprisonment.
2 This crime arises out of events which took place between yourself and the victim of your offending, Min Yi Wong, on 11 February 2018.
3 It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecution and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say that the facts in this case are most serious and disturbing.
5 You were born in 1979 and were 39 years at the time of your offending and also at sentence. Wong was born in 1990 and is 28 years of age.
6 You are a permanent resident of Australia, having lived here for approximately ten years. You and Wong had been in a de facto relationship for approximately 18 months.
7 Wong is a Malaysian citizen, and was sponsored by you to live in Australia on a temporary visa.
8 At the time of this offending you and Wong were living in an apartment in Melbourne, and had been living there with the owner of that apartment, Yong Chang, since July 2016. Chang was at home at the time of your offending.
9 In the year preceding this offending you had been violent towards Wong during other arguments. Wong states that on previous occasions you had hit her to the face, twisted her arm and caused bruising, and strangled her. The prosecution rely upon this as other 'misconduct' evidence.
10 Wong did not report those previous incidents to police. Chang had also witnessed previous periods where you "hit/push[ed] the victim".
11 Turning to this offending. On the afternoon of Saturday, 10 February 2018, Wong, who was at home, received a number of text messages from you asking for money. According to you, you and the victim held your money in a joint bank account.
12 Wong responded through text and queried what you wanted the money for and you quickly became angry, and threatened to "freeze" Wong's finances. Wong stopped responding to your texts because of your anger.
13 Wong went to bed at about 9.00 or 10.00 pm, and at approximately midnight she heard you return home. You moved around the house loudly, banging doors, stomping, and throwing your keys and wallet on the table. You had a bath, and then went into the bedroom where Wong was.
14 When you entered the bedroom Wong tried to talk to you, but you were still angry. You began yelling at her. You said, "It's so hard to get money from you," and you again threatened to "freeze" her finances.
15 You began tearing up photographs of you and Wong, and said to her you would cancel her visa, and told her to get a lawyer.
16 You pushed Wong, causing her to fall onto the floor and hurt her knee. Wong grabbed you by the collar of your Tshirt, and you pushed her onto the bed and started to strangle her by placing one hand around her throat.
17 Wong tried to scream but was unable to, due to the pressure on her throat. She was unable to breathe properly.
18 With one hand on Wong's throat, you lifted your other hand and threatened to hit her, saying "Don't force me". Wong struggled to break free, and at one stage felt as though she was going to pass out due to the pressure you applied on her throat.
19 You released your hold on Wong's throat and stood up. You said "I want you to die". You then turned and left the room.
20 Chang was sitting in the living room watching soccer, and heard the argument between you and Wong. He heard you threaten Wong that you would cancel her visa, and also heard you say, "I just want to watch you die." He saw you exit the bedroom, go into the kitchen and grab a sharp knife approximately 30 cm in size. He said you were in a "highly aggressive" state. Chang felt scared for Wong's safety.
21 You returned to the bedroom with the kitchen knife and removed the protective cover from it. You grabbed Wong again by her throat, and while holding her by the throat you pointed the knife at her face. You were speaking, however Wong could not recall what you were saying.
22 Chang went to the bedroom door after seeing you go in with the knife. He saw you push Wong against the wall and grab her tightly around her neck. Chang saw Wong was struggling to breathe and saw that you were holding a knife towards her face. Chang said he was going to make a phone call, and walked away from the bedroom intending to call police.
23 You moved the knife that you were holding down to Wong's neck and pressed the sharp edge of the blade against her skin, which caused a superficial laceration to her neck.
24 Wong pushed you to stop you from cutting her neck. You both wrestled, and the victim felt you slash her to her left arm with the knife.
25 Wong waved you away and told you to stop. She saw blood dripping from her arm.
26 Wong yelled out for Chang to take her to hospital. Chang saw Wong in the hallway holding her left arm with her right hand, and saw blood flowing freely through her right hand. He saw her Tshirt was covered in blood, and there was blood running down her leg.
27 You walked out of the bedroom, and Chang heard you say "I'm just going to pack my things and go". You made no offer to take Wong to the hospital or to assist her with her wound. I note Mr Dunn QC, who appeared on your behalf, relied upon such an offer being made by you, as stated in your record of interview. Neither Chang nor Wong referred to any such offer being made, nor any apology by you.
28 Wong stated (depositions p.20) "Hong walked out, he didn't even offer to send me to hospital". Chang (depositions p.29-30) makes no reference to any such offer being made by you.
29 Chang drove Wong to the Royal Melbourne Hospital. On the way Wong was highly emotional, telling Chang that you "push[ed] the knife into her arm".
30 Chang escorted Wong into the emergency department at about 1.40 am. He told staff of the cause of her injury. Police were notified and attended the hospital.
31 Police had a conversation with Wong at approximately 2.40 am. The officer observed that Wong was still very distressed and very fearful you would attend the hospital and further assault her.
32 You attended the emergency department on two occasions in the early hours of 11 February 2018. On the first occasion you were denied entry to where Wong was being treated, and on the second occasion police were informed immediately of your presence. When police arrived you had left, however, they saw you driving away from the hospital and followed you in a marked vehicle. You were intercepted at Lygon Street, arrested and taken to the Melbourne West Police Station.
33 During a medical examination, Wong had bruising to the right side of her neck, red marks on the back of her neck, and a "linear line representing a superficial laceration from a sharp object" on the left side of her neck.
34 Also observed was a small superficial abrasion to the right lower quadrant of her abdomen, and blunt force trauma to her right knee.
35 Wong also had a laceration to her left forearm approximately 5cm in length, with "muscle on view". Further investigation revealed partial muscle laceration. That injury required surgery, which the victim underwent on 12 February 2018. Wong was then directed to keep her arm in a splint for three weeks and to undergo recovery and physiotherapy.
36 Photographs of Wong's injuries were tendered (Exhibit B).
37 Dr Moller of the Victorian Institute of Forensic Medicine subsequently assessed Wong's discharge summary and the photographs of the injuries sustained by her, and provided a report to police. In that report, Dr Moller opined that:
• Ms Wong suffered blunt force trauma to the neck. He noted a cluster of three oval bruises, the injuries suggesting a possible cause could be the application of fingers.
• Red marks were observed to the back of her neck, suggestive of blunt force trauma.
• The linear injury to the neck was likely caused by the light application of a sharp-edged object, although Dr Moller could not rule out a linear abrasion caused by a scratch or a blunt object. The prosecution relied upon the observations of Dr Cheng in his statement as to this injury. Mr Dunn conceded caused by the knife and you.
• The victim suffered a sharp force trauma to her left arm, causing a large incised wound which was assessed to require surgery. The injury would result in a scar.
38 Dr Moller noted that, although there were no complications associated with the neck trauma, the neck is a vulnerable part of the body containing many vital structures, and trauma to the area had a high potential for resulting in serious injury.
39 The prosecution referred to the charge before me and your plea of guilty to a charge of recklessly causing serious injury. Whilst the laceration to the left arm was, of itself, a serious injury, this charge before me represented the laceration to the left arm in combination with the other injuries sustained, specifically, the bruising to Wong's neck, the linear injury to her neck, abrasion to her abdomen and trauma to her knee.
40 You participated in a record of interview with police on 11 February 2018. You admitted you and Wong had argued regarding money that night and that she sustained an injury from a knife during that argument.
41 You denied, however, you were the aggressor, rather, claimed Wong attacked you. You admitted going to get the knife, but claimed you handed it to Wong and that when you tried to wrestle it back from her she suffered the injury to her arm. The injury was, you said, accidental.
42 In further describing your version of events of this offending, you claimed Wong started to go crazy. That you stood in the corner whilst she was hitting you. She said to you "You kill my life. You - I want to die. You kill my life. My life is gone". You said you went and got the knife to give to Wong, and that you did that in response to her saying she wanted to kill herself. You said she took the knife from you and put it to her own neck, but you said you grabbed the knife back from her.
43 You told police she tried to grab the knife back from you, but as she was trying to do so she sustained the cut to her arm, by accident.
44 You agreed at some point in the argument you pushed Wong to her upper body, but denied choking her. You said the mark to her neck from the knife was inflicted by her. You said Chang lied to police when he said he saw you grab the victim by the throat and hold the knife to her neck.
45 As I discussed with your counsel you minimised your involvement in this offending when talking to police.
46 At the date of your plea hearing on 29 October 2018, you had spent 260 days in custody for this offending.
47 The victim of your offending has suffered considerably, and I shall return to pass some remarks on that subject shortly.
48 You have pleaded guilty to this charge, and you are entitled to have that fact taken into account in your favour, and I do so. The community has by your plea of guilty been spared the time and cost of a trial, and witnesses, in particular Wong, have been spared the ordeal of having to give evidence upon your trial.
49 Further, I take into account in your favour you intimated early your intention to plead guilty to this charge. I note, however, at the time you were interviewed by police you did not provide an accurate account as to how Wong received her injuries, minimising your involvement in it.
50 Regarding the timing of the plea of guilty, once your solicitors became involved this matter progressed fairly quickly. You were arrested on 11 February 2018, a filing hearing on 15 February 2018, committal mention in April 2018, with a committal hearing on 23 July 2018. The matter resolved, as I understood it, on the day of the committal but prior to a committal being conducted, i.e. prior to any witnesses being called and cross-examined.
51 I accept your plea of guilty is indicative of some remorse.
52 You have admitted one prior court appearance. You appeared at the Sunshine Magistrates' Court on 5 April 2017 on two charges of unlawful assault, and without conviction, were fined an aggregate of $750. According to Exhibit A, the police summary revealed the charges related to an incident of family violence where you assaulted your exwife's parents following a verbal argument. This did not relate to Wong.
53 Mr Dunn submitted whilst you acknowledged an assault on the parents had occurred, Mr Dunn was not in a position to concede details of that offending as alleged by the prosecution in a further summary which the prosecution sought to tender.
54 Mr Dunn had only received the prosecution summary of that offending immediately prior to your plea hearing. Mr Dunn expressed some concern about the contents of that summary conceding, however, it involved a physical assault on your father-in-law and mother-in-law, not involving, of course, the complainant in this matter. Mr Dunn said your instructions were that involved some punching of both victims by you, but not any weapon.
55 An opportunity was given to the prosecution and also to Mr Dunn to make further submissions in this regard, if they wished, prior to sentence on 7 November. A copy of the summary was forwarded to me by the prosecution. In a covering email I was advised it had not been confirmed by either party whether amendments were made to it prior to the hearing before the Magistrate.
56 In my opinion I do, however, have sufficient information before me from Mr Dunn, that is that a physical assault that was by you upon both your mother and father-in-law involving punching both by you and no weapon produced. (It was agreed by your counsel today that was over money and also involving your joint bank account with your then wife).
57 I note you admit the charges which involved domestic violence towards your ex-wife's parents. This prior and admitted offending is concerning, as I discussed with Mr Dunn. You have displayed difficulty with relationship issues and difficulty managing your anger in such situations as here involving Wong and involving money.
58 Mr Dunn prepared a very helpful written outline of submissions (Exhibit 1) for your plea hearing.
59 At the outset, Mr Dunn conceded in your Record of Interview you did not do yourself any credit. You admitted your presence, however, and a physical argument with Wong, but you referred to her attacking you. Amongst other matters, you claimed the injuries were accidental and occurred in the course of a struggle. Mr Dunn accepted that in the record of interview you minimised your involvement in this offending.
60 Mr Dunn relied on your plea of guilty and submitted such was entered at an early opportunity, that is, prior to the committal commencing, although as discussed with him, your remorse was not apparent at the time of the record of interview, when you attempted to put the blame onto Wong for her injuries.
61 Mr Dunn, in his written and oral outline of submissions, provided details of your background and history. You are a 39-year-old Malaysian national with permanent residency in Australia.
62 Further detail was provided regarding your personal history and background contained in the chronology prepared by Mr Dunn (Exhibit 2).
63 You were born in Georgetown, Penang, in 1979. Your father ran a vegetable import/export business. He passed away in 2010 from liver cancer. Your mother continued to live in Penang, however she was at court for your plea hearing, as was one of your sisters, who also resides in Malaysia. You have a brother and three sisters, all living in Penang.
64 You attended primary school in Georgetown and a secondary school in Penang.
65 When you were a pedestrian in Malaysia, you were hit by a motor car and suffered head injuries, resulting in you being hospitalised for a month with those injuries. No further details were provided and this was not relied upon by Mr Dunn relevant to sentence. I note no "expert" report received in this regard.
66 In approximately 1998 you finished schooling and began working with your father and were living at the family home. In 1999 your family sent you to Taiwan to do a diploma course at Tai Chung, and you stayed in Taiwan for two years. In 2001 you returned to Malaysia, living at home and working in your father's business.
67 In 2005 you came to Australia on a holiday to Melbourne. In Australia you met Mai Zhang, who had relocated from China to Australia. Ms Zhang sponsored you as a migrant to Australia.
68 In 2007 you married Zhang and lived with her family in St Albans. Your family gave you $300,000 to buy a house, where you lived with your wife. There are two children of that relationship, a son now 11, and a daughter now 8. Both children live with their mother.
69 In 2012 you and Zhang divorced and you gave your wife the family home, where she continued to live with the children. In 2013 you suffered an industrial accident resulting in a spinal injury, for which you later received $300,000 compensation. I note by the time of this offending before me, you were able to work and, in fact, on this occasion were working two jobs.
71 You met Wong at a friend's party. She was in Australia on a student visa. You sponsored Wong to be a permanent resident in Australia as your partner, and it was through Wong you met Chang.
72 In July 2016 you and Wong moved into Chang's apartment and you and Wong purchased a grocery business in Mount Waverley. You also paid a deposit on an apartment property being built in the Melbourne CBD, with the balance of moneys invested in a joint bank account, with an attached credit card for both you and Wong.
73 In 2017 you and Wong were living in Chang's apartment and running the grocery business, ultimately sold in August 2017 for $270,000.
74 In October 2017 you, Wong and Chang went to Malaysia, Korea and Japan on holiday. In November 2017 the three of you returned to Australia, and back to live in Chang's apartment.
75 You instructed that during the day of 10 February, the day prior to this offending, you contacted Wong wanting to withdraw money to buy presents for the Chinese New Year celebrations.
76 On 10 February 2018 Mr Dunn said that you had worked at a friend's grocery shop during the day, then worked a second job that night as a forklift driver, arriving home at approximately midnight. He submitted you were tired and cranky and the argument ensued. During the course of the argument you went to the kitchen and took out a knife to threaten and scare Wong. During the course of the ensuing struggle, she suffered a scratch on the neck and a laceration on her left arm. He submitted it was a superficial laceration to the neck, not a penetrating injury. That is so, but it being to the throat, however, is concerning.
77 You conceded that in the course of the argument Wong was "manhandled" by you.
78 It was appropriately conceded by Mr Dunn, that the production of the knife by you, having gone into the kitchen to obtain it, and then using it, escalated this assault.
79 Regarding the injury to Wong's arm, Mr Dunn submitted it was also indicative of a slash movement, and that would appear to be so.
80 I am aware you have pleaded guilty, of course, to a charge of recklessly causing serious injury, and not intentionally cause serious injury.
81 In a record of interview you described that injury as likely having been caused by your fingernail, now not maintained by you, as I have previously stated.
82 On the day in question, 11 February, you said you returned to the apartment where you lived with Wong and Chang, and an argument ensued about finances and your relationship. Mr Dunn submitted the argument became physical and you produced a knife to threaten and scare Wong.
83 At 2.56 am police were called to the Royal Melbourne Hospital. After the police arrived you left the hospital and police checked the CCTV footage. When you returned to the hospital at 4.38 am police were notified and you were arrested.
84 Mr Dunn elaborated upon your attendance at the hospital and submitted that in the record of interview, you said you immediately after the assault offered Wong a red T-shirt to place over her wound and also suggested at the apartment you take her to the hospital.
85 Mr Dunn also urged that when you attended the Royal Melbourne Hospital on the two occasions, it was to offer assistance to Wong. There is nothing in the material before me to support that, and I note no evidence was given by you at your plea hearing in this regard.
86 Mr Dunn submitted that from your record of interview it was clear that you said you had tried to help at the scene and that you said sorry. As I have said, the statements of Wong and Chang do not support that proposition, nor do they refute it, but are rather silent on this in the case of Chang.
87 Mr Dunn submitted that since this offending there had been an intervention order in place in relation to yourself and Wong, that you had been in custody since this offending, and had not attempted to make any contact with her or have others contact her. Nor had you suggested/attempted to prevent her obtaining her visa. I understood that submission to mean you were not vindictive towards Wong for reporting your offending.
88 Mr Dunn submitted the serious injury sustained and circumstances in which it occurred fell at the lower end of seriousness albeit conceding not at the lowest end. In my opinion, your offending between the lower end and mid-range, closer to the lower end, but definitely not at the lowest end.
89 The victim of your offending, Wong, has suffered considerably in the manner described in her victim impact statement, which was read into the transcript.
90 It is difficult to do justice to her victim impact statement in these brief sentencing remarks. The statement is eloquent, and I have read it.
91 Wong said that at the time of your offending she thought that you would hurt her and try to kill her. She felt totally devastated and hopeless in hospital. Doctors told her she needed surgery on her hand and this was the first time she had needed to undergo surgery. She was fearful her hand would be permanently impaired.
92 In hospital she had nightmares and cried during the nights. She could not sleep and felt lonely. All she could remember was you yelling at her "I want you do die".
93 Wong described limited resources to pay her daily expenses and medical bills as a result of this injury. She had to borrow money to do that and felt guilty about asking for money.
95 She constantly has nightmares of what happened to her, sometimes feeling choked and breathless.
96 She was very depressed when she learnt of the recovery status of her hand, being told it would take six weeks for the wound to heal, and another six of 'physiology' to recover the strength of her hand.
97 Her hand still felt very weak, and she was constantly in pain, especially in cold weather. She understood the recovery of her hand would never be 100 per cent, which upset her.
98 She had become very sensitive to sound, such as minor knocks which woke her in the night. She had become very fearful of sharp things, and did not dare to touch knives.
99 She had been out of work for several months since your offending, due to the injury to her hand. Her general practitioner has recently suggested she would not be able to work for another six months, which would be a financial burden for her. She was also concerned about the type of work she could do in the future, due to the injury to her hand.
100 She was currently seeing a psychologist and psychiatrist, and was on prescribed medication.
101 She was in hospital for five days and since leaving hospital had ongoing pain in her hand, worse in cold weather. She was taking painkilling medication.
102 She described, following hospital, having to do hand therapy at the Royal Melbourne Hospital clinic, and continuing to do so, initially weekly, then two-weekly, three-weekly and at the time of her victim impact statement, monthly. As a result of the injury to her hand she had been unable to do things she enjoyed. The impact on her life upset her very much.
103 Since your offending she had not been able to go back to work, and had not had any income, rather borrowing from friends. She has had to move out of her home and find somewhere else to live, which cost her a lot of money. Medical treatment was costing her money. She had been told her hand may never recover back to how it used to be, and that would permanently impact on her life, including work options.
104 Attached to the victim impact statement were two reports from Dr Chan dated 10 August 2018, which set out her presenting problem as weakness and pain in her left forearm and left hand, with medication prescribed. Dr Chan confirmed that Wong was seeing a hand physiotherapist, and that six months after she received the injury she still had symptoms of weakness and loss of muscle mass in her forearm. He confirmed Wong was seeing a psychologist and psychiatrist, and being treated with anti-depressant medication. Further, she had been unable to work since your offending due to her injuries, and would continue to be unable to work for some time.
105 There was a report from Dr Lin, Clinical Psychologist, dated 13 August 2018. Dr Lin had been involved in Wong's care. She had seen Wong on eight occasions. Dr Lin referred to Wong's ongoing insomnia, lowered mood, poor appetite and hyper vigilance, particularly at night. She expressed flashbacks of your offending and had nightmares. She had heightened anxiety when seeing pointed objects. Wong expressed frustration at being unable to carry out
day-to-day tasks due to the physical injuries she sustained.
106 Dr Lin concluded Wong's symptoms were consistent with a diagnosis of PTSD. In her opinion, Wong required long term treatment.
107 The effects upon a victim are a relevant sentencing consideration (see s5 Sentencing Act 1991). I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.
108 Turning to your rehabilitation prospects, Mr Dunn submitted you did not have any relevant criminal history and no psychological disorders. I am, however, concerned about your prior criminal history as it involves violence in a
domestic-type situation. Despite having attended court in 2017, it would appear you have not sought counselling to assist you to address matters such as anger management, nor seek counselling for such issues during the course of your relationship with Wong which, at times, had been violent.
109 Mr Dunn submitted you did not have any psychological disorders. I discussed with him the lack of an 'expert' report before me and any assessment of your future risk of offending. Such would be a relevant consideration when assessing your prospects of rehabilitation, but none was before me.
110 Mr Dunn submitted relevant to your rehabilitation was that this offending had occurred at a time of emotional stress, and that you otherwise had not had any court appearances for other matters apart from 2017, and had lived, effectively, a blame-free life. It is of concern, however, that your offending involved a domestic assault which did occur at a time of emotional distress, often the case in a relationship. That is the concerning aspect of domestic violence and you do, in fact, have a prior matter, while again I stress, not involving this complainant or the same charge, involved physical assault in a domestic situation. I accept, however, there are no subsequent charges or convictions.
111 In custody I note you had undertaken a number of courses. Certificates of Completion of Control Traffic with stop-slow bats, preparing and serving espresso coffee, engaging with a range of complex texts for personal purposes, completion of Life Skills modules - healthy living, money matters, better connection taking control were tendered, also a Prison Education Summary Report (Exhibit 3).
112 Regarding your rehabilitation prospects, I am aware of your largely good work history, in particular at the time of your offending, and courses undertaken in prison. You are to be commended for that. You, however, have an issue with relationships which needs to be addressed and is yet to be addressed. Until you do that I will have concerns about your prospects of rehabilitation. I must, however, when sentencing seek to maximise your prospects of rehabilitation as they may be. I have not been assisted by an "expert" report in this regard.
113 Regarding the impact of a conviction for this offending, Mr Dunn submitted that as a result of being charged with this offence you faced the prospect of deportation. I sought further information as to your exact status and whether or not you may be considered a potential for deportation. Mr Dunn submitted a term of imprisonment of 12 months or more would lead to your potential for deportation and make your time in custody more stressful, wondering about that.
114 The prosecution submitted there was some uncertainty in relation to your resident status and it was speculation as to whether or not you would be deported. Ms Warren, for the prosecution, had concerns regarding any submission there be some mitigation of your sentence due to possible deportation.
115 Mr Dunn was going to provide further information in that regard, and such was received by me on 1 November 2018.
116 Mr Dunn submitted if sentenced to more than 12 months' imprisonment (reference to 12 years or more in paragraph 2(c) of those submissions being an error) you would face cancellation of your visa due to failing the character test. You could of course appeal any such decision if made, and the result of any appeal was, he conceded, speculative. The prosecution, I am advised, agreed you face mandatory visa cancellation if sentenced to 12 months' imprisonment or more (subject of course to any successful appeal by you).
117 In the recent decision of Zhao v The Queen[1] the Court of Appeal referred to deportation.
119 I accept the burden of imprisonment may be greater for a prisoner such as you, who knows upon your release you are likely to be deported. The Court referred to proof that deportation would in fact be a hardship for a particular offender.
120 In DPP v Yildrim[4] the Court found the sentencing judge had erred in giving any weight to the prospect of deportation where the only evidence was that the term of imprisonment, being greater than 12 months, created a risk of deportation under s501 Migration Act 1958 (Cth). The sentencing judge had stated regarding the immigration status "This has now been put in jeopardy and I have taken that into account, although this is a discretionary matter for the Minister". The Court found that evidence was not sufficient to permit a sensible quantification of that risk to be undertaken, and that there had been no demonstration that deportation in his case, in other words that case, would in fact be hardship.
121 But I do note in your case your children reside in Melbourne.
122 It has been further emphasised that the sentencing judge is not to 'speculate' on whether an offender will be deported. To this end, a sentencing judge is not required to put themselves in the position of the decision maker and decide, on the balance of probabilities, what decision would be made (Darcie v The Queen[5]). See also Konamala v The Queen[6].
123 But I do take such into account when sentencing you.
124 Mr Dunn conceded in relation to sentence, the only available sentence was custodial, and that in my opinion, was an appropriate concession.
125 Regarding your age, lack of relevant priors and circumstances around your offending and potential for extra curial punishment, regarding your visa, combined with his submission that the serious injury was at the lower end, Mr Dunn urged a sentence, as I have said, of less than 12 months (not taking into account your time in custody to date) in combination with a Community Correction Order would be appropriate.
126 Ms Warren, who appeared on behalf of the prosecution, referred to the other "misconduct" evidence of violence to Wong by you during the course of your relationship and your statements to her on 11 February 2017 "I want you to die", as such being heard by Chang. Ms Warren submitted that while there was no separate charge for that threat and that it did not aggravate your offending, such was supportive of the fear felt by the victim at the time, consistent with her statements in the Victim Impact Statement.
127 Regarding your assertion that you used your red T-shirt to assist the victim to attend to her injuries, Ms Warren submitted that was not referred to by either Wong or Chang as having occurred. Two photographs were tendered of a red T-shirt (Exhibit D). Ms Warren submitted that it was not readily apparent it had been used to cover any wound given the appearance of the T-shirt. She submitted I should not accept what you said about that, particularly in light of the other answers in your interview, which were either untrue or minimised your involvement of your offending. I am not able to draw any conclusions regarding that T-shirt.
128 Regarding Mr Dunn's submissions that you offered to take her to hospital when at the apartment, Ms Warren referred to the lack of reference in either Chang's statement or in Wong's that you at any time offered to take her to the hospital. The evidence, in my opinion, does not support the submission you made such an offer. However, in the end, I am unable to determine that with any finality.
129 The prosecution submitted, regarding the seriousness of your offending, it was between lower to mid-range, not at the lowest end of gravity. I agree.
130 Turning to the timing of the plea of guilty, Ms Warren conceded it was early, but not at the earliest opportunity, rather at the committal, although Ms Wong was not cross-examined. There was, she conceded, utilitarian benefit in your plea of guilty. There is, and I have already referred to your plea of guilty relevant to sentence.
131 Regarding the seriousness of your offending, Ms Warren referred not only to the use of the knife, but your attempts to strangle Wong on this occasion and, indeed, on prior other occasions. Ms Warren referred to concerns stated by the courts regarding strangulation in domestic situations. Strangulation, she submitted, was very serious and the gravity of your offending was further increased by a weapon used during the course of this argument with Wong.
132 Ms Warren submitted it was a conscious decision by you to get the weapon, remove the sheath and use it in the way described. I agree, again noting the charge is recklessly causing serious injury.
133 Turning to sentencing, Ms Warren referred to the importance of general deterrence when sentencing for family violence offending. She urged that Courts have referred to lengthy periods of imprisonment being appropriate for such offending.
134 I was taken to Pasinis v The Queen[7], paragraph [57], in which the Court stated:
"General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm."
135 I was also referred to the decision of DPP v Filiz[8] and reference by the Court of Appeal to the focus and need for general deterrence in family violence cases. At paragraph 23, the court said:
"It is a shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44. It is also sadly true that there are a great number of women who live in real and justified fear of the men who are, or were, their intimate partners. In such circumstances, the submission that the complainant's level of fear when being attacked by her ex-partner was less than it might have been if she had been attacked by a stranger should be rejected."
136 Ms Warren submitted regarding those authorities provided relevant sentencing principles. She did not rely upon those cases as comparative cases.
137 Ms Warren submitted that there was also the need for specific deterrence when sentencing you, as there was a prior incident involving domestic violence by you (your ex-wife's parents), and ongoing domestic violence (other misconduct) relevant to Wong. You were not, she said, to be sentenced for that other conduct, however, Ms Warren submitted such was relevant when assessing the need for specific deterrence. I agree.
138 Chang had also referred to violence he witnessed by you to Wong in the past. It is clear to me you have an issue with anger and relationships which you are yet to address.
139 Ms Warren submitted there was a need to denounce your offending. This was, she said, cowardly behaviour by you, indicating a lack of self-control when you were under emotional distress, and such required denunciation by the Court. I agree.
140 I was referred to Smith v The Queen[9], a sentence for the offence of recklessly causing serious injury. In Smith the appellant pleaded guilty to recklessly causing serious injury and attempting to pervert the course of justice. That sentence was handed down in 2010 and involved weight to be given to attitude of the victim. For the charge of recklessly causing serious injury a three year jail term was imposed at that time.
141 Mr Warren also referred to Pato v The Queen[10], again a case involving the offence of recklessly causing serious injury. It seems to me there were significant differences relevant to the appellant's sentencing considerations, different from yours. A sentence of three years was also imposed for the offence of recklessly cause serious injury.
142 Ms Warren submitted sentencing practices had, however, increased since those two cases. Courts were now referring to such offending (domestic violence) no longer being tolerated. I agree.
143 Ms Warren also referred to the decision of Marrah v R[11] and Nolan v The Queen[12], where 8 year individual sentences were imposed for the offence of recklessly cause serious injury in a domestic violence situation, which she urged was more consistent with current sentencing practices and pronouncements of the Court of Appeal. (6 years in Marrah following successful appeal).
144 In Marrah the appellant was sentenced for breaching of an intervention order, very different offending from yours. The assault is described in paragraph 3. I note no injuries, it seems, caused by the knife produced in that case. Again, matters personal to that appellant are different from yours, including Verdins. The prosecution also made concessions regarding two of the charges (including recklessly causing serious injury).
145 Nolan also involved domestic violence and other charges in a domestic situation. The offending very different from yours, and again I note matters personal to that appellant different from yours.
146 Ms Warren submitted the cases demonstrated an increase in the current sentencing practices for this offending.
147 It is difficult comparing cases factually as facts vary enormously case to case, as do matters personal to offenders in mitigation of sentence. Ultimately I must determine the appropriate sentence in your case.
148 Directly referring to the submission by Mr Dunn that a term of imprisonment of less than 12 months (even excluding the time spent on remand), together with a community correction order would be appropriate, Ms Warren submitted such a disposition would be outside the range of appropriate dispositions and result in a manifestly inadequate sentence. The prosecution submitted the only appropriate disposition was a head sentence and non-parole period.
149 Regarding the cases of Marrah and Nolan, and others, Mr Dunn urged they were very different cases factually from yours.
150 Mr Dunn urged, in your favour, that the incident between yourself and Wong on this occasion did not persist for very long. That of course is so, but not of great comfort.
151 I am aware of the decision in Boulton & Ors v R[13] and subsequent pronouncements of the Court of Appeal relevant to those principals. A Community Correction Order has both a punitive and rehabilitative aspect to it, and in Boulton the court was urged to, "Rethink the conventional wisdom about whether prison is really the only option".
153 I did not, however, understand Boulton to remove the requirement that a sentencing judge must take into account all of s.5 of the Sentencing Act 1991, nor did I understand Boulton to remove the sentencing principles previously stated by the Court of Appeal, and other courts relevant to this offending, now amount to nought. Nor did I understand Boulton's decision to remove the instinctive synthesis when sentencing.
154 I also did not understand Boulton to remove the need for me to be mindful of the maximum penalties applicable to this charge. Further, I note Priest JA observed in Hutchinson at paragraph 17 that:
"... it should not be thought that Boulton offers a 'Get Out of Jail Free' card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed."
155 In my opinion to accede to the submission of Mr Dunn regarding disposition of this matter (even up to 12 months' imprisonment in addition to the time on remand) would result in a manifestly inadequate sentence.
156 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
157 Whilst there is not any prior criminal offending for the same offending or subsequent, you do have a prior court appearance and some element of specific deterrence is required.
158 I must also consider the question of the protection of members of the community from you, and bear in mind the likelihood of your re-offending. Again I note, no expert report before me to assist. Nor have you to date undergone any appropriate counselling.
159 I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
160 On Charge 1 you are convicted and sentenced to 5 years and 6 months' imprisonment, and I direct that you serve a period of 3 years and 6 months before you are eligible for parole.
161 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to this offending and been found guilty of it, I would have sentenced you to a term of imprisonment of 8 years with a non-parole period of 6 years.
162 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 269 days in custody (up to and including yesterday, 6 November 2018) by way of pre-sentence detention, and I direct that that be entered into the records of the court.
163 The prosecution made application for a disposal order in relation to a number of items, as stated in it. Counsel who appeared on your behalf consented to the order being made, and I make the order in the terms sought.
164 The prosecution also made application for a forensic sample, as this offence of recklessly causing serious injury is a Schedule 8 offence. Mr Dunn on your behalf consented to the order for a forensic sample being made. I make the order in the terms sought. It will be for a saliva sample, and I do so on the basis of the seriousness of your offending. I must advise you the authorities may use reasonable force in order to obtain that sample.
165 All right, PSD, how did we go. Is that right? Have a seat, have a seat.
167 HER HONOUR: So it is 269 days up to and including 6 November, which was yesterday. Thanks very much for that. Is there anything further in this matter?
169 HER HONOUR: No, thank you both very much. Thank you, Madam Interpreter.
173 HER HONOUR: Yes, Mr Tan, you will need to leave, all right? Yes, thank you. All right, thank you both very much.
[4] [2011] VSCA 219 [29-31]
DPP
Tan [2018] VCC 1819