HIS HONOUR: This is an application for an adjournment of a part heard sentence matter. The offender was arrested on 9 April 2019 for the matters for which he stands for sentence. He was committed for trial in this Court by the Local Court at Burwood on 20 May 2020. On 17 July 2020, he was arraigned on an indictment containing four counts. To each count he pleaded that he was not guilty. The matter was then set down for hearing on 8 March 2021 with an estimate of ten days.
At the same time, a readiness hearing was fixed for 15 January 2021. On 15 January 2021, the trial date was confirmed, as was the estimate. I know from Exhibit S3 that there were negotiations between the parties. Exhibit S3 is an email from the CDPP to the offender's solicitors, rejecting an offer made on 17 February 2021 and making a counteroffer. That counteroffer appears to have been accepted.
The matter was listed before the list judge on 4 March 2021, when the trial was vacated, but the matter was left in the list on 8 March 2021 in order that a fresh indictment be presented. On 8 March 2021, the offender pleaded guilty to an indictment containing one count, the matter for which he currently stands for sentence. The matter was then set down for sentence on 24 June 2021 with an estimate of one day. On 24 June 2021, it came on for hearing before Hunt J, who noted that there was a major factual dispute as to the role of the offender in the crime alleged.
Hunt J stood the sentencing proceedings over to 5 July 2021 with an estimate of two days. That sentencing hearing did not actually commence before his Honour. On 5 July the matter came before me. Oral evidence was adduced on 5 and 6 July and I then heard addresses, as well as spending time reading the voluminous material that was before me. I gave judgment, ending on 9 July 2021. That judgment can be found at [2021] NSWDC 450. During the discussion after I had finished giving judgment, learned Senior Counsel for the offender made it clear that he was asking the Court to impose an Intensive Corrections Order rather than a sentence of full time imprisonment.
R (Cth) v Jia Li He [2021] NSWDC 769 | Case summary | Zoe
On his application, the matter was then adjourned until 13 September 2021 and I ordered that a sentencing assessment report be prepared. When the matter came before me on 13 September 2021, the offender applied for an adjournment in order that he could have a COVID-19 vaccination that had been booked, but the first injection had not yet been made. I then stood the matter over to today in order to finalise the matter and pointed out to those appearing before me on 13 September 2021, that today was the last day that I am theoretically listed to sit in the criminal jurisdiction of this Court this year.
The roster for next year has not yet been published so when I shall be sitting in crime again, I do not yet know. The application today is based upon what I am urged to accept are pressing family matters, which require the offender to care for his elderly parents, in particular his elderly father. There is some material available to me about his father's health, which was previously put into evidence. For example, Exhibit S6 is a discharge referral from the Prince of Wales Hospital, where the offender's father was admitted on 21 February 2021 and discharged on 22 February 2021 with a history of constipation for three days and of straining when passing urine.
Exhibit S7 is a discharge summary from St Vincent's Hospital, where he was seen in the emergency department on 26 February 2021, with a diagnosis of constipation. Exhibit S8 is a discharge referral from the St George Hospital, where he was admitted on 31 March 2021 and discharged on 1 April 2021. According to that discharge referral note, the offender's father presented to the hospital on 31 March 2021 for a planned bladder neck incision, under the care of Dr Dominic Lee, who would appear to be a urologist. According to the discharge referral note, there was no intraoperative or postoperative complication.
Exhibit S9 is a further referral note from the St George Hospital Emergency Department on 2 April 2021. The offender's father had presented to the emergency department with urinary retention following the recent bladder neck surgery on 31 March. The offender's father was sent home with the referral letter being directed to his general practitioner, Dr Belinda Woo, for the offender's father to be reviewed in a clinic in a week's time. I assume that would be the urinary clinic. Exhibit S10 is a referral letter from the St George Hospital Emergency Department dated 6 April 2021 when the offender's father presented with blood in his urine for two days. According to that referral note, there was a light pink tinge but no clots in the father's urine. There was associated pain over the suprapubic region intermittently. However, there were no other complications.
The offender's father was told to stop taking aspirin, which he was taking as a preventative, but there was no particular reason why he should do so. The offender's father was given some other medication which might assist with his urinary excretion and referred back to see his usual practitioners. Exhibit S11 was another discharge referral, this time from the Prince of Wales Hospital, where he was admitted on 13 June 2021 and discharged on 16 June 2021, with an exacerbation of asthma. It is clear under the heading "Presentation" that there was a concern that the offender's father might have been exposed to the COVID-19 virus, but at the time of discharge the result of testing was not available.
Today, Exhibit S13 tells me that some time prior to 9 July 2021, the offender's father had a suprapubic catheter inserted at the Hurstville Private Hospital. That clearly was to drain urine from the bladder. Exhibit S13 are pre‑admission records relating to a further operation concerning the suprapubic catheter. According to information to be supplied by the medical practitioner which bears date 9 July 2021, the surgery was to be practised within 90 days, but only required a "day stay" in what I am told is the St George Public Hospital.
The doctor appears again to be Dr Lee, the urologist who performed the surgery on 31 March 2021. Although I could not initially decipher the doctor's name on the records when I had regard to Exhibit S9, it becomes clear that the doctor making the recommendation for further surgery in exhibit S13 is again Dr Lee. The client registration document is the offender's father's address, as being a home unit or apartment in Gadigal Avenue, Waterloo. An email address is given for him, "lawrence.he73@hotmail.com", which I assume is the email address of the current offender's brother, Lawrence, being the English praenomen adopted by the offender's brother.
The patient health questionnaire has been completed by one of the offender's father's granddaughters and it became clear from the oral evidence given by Mr He today that it was the elder daughter of his brother, Lawrence. Wheelchair access was not required to the hospital. The document appears to suggest that the offender's father could climb two flights of stairs, but had difficulty with all the flights of stairs. The patient health questionnaire indicates that the father was suffering from high blood pressure and problems with asthma, which required the administration of a puffer when needed. It also suggests no other health problems for the father.
The questionnaire is dated 9 July 2021. The discharge planning questionnaire confirms that the surgery only required admission to the hospital during the day. When asked if arrangements had been made for someone to take the offender's father home from the hospital after the surgery, the box "yes" has been marked, but who that person might be, the evidence before me does not disclose. According to the questionnaire, the offender's father lived "with family". He did not need care from another person on a regular basis. He did not normally need assistance to walk. He did not use an aid such as a walking stick or frame. He had no difficulty walking up or down stairs but had some slight deafness and weak vision.
No problem was anticipated with bathing/showering, dressing, toileting, cooking, cleaning, shopping or business matters. No help was anticipated after discharge at the offender's father's home. The question "What arrangements have been made for someone to care for you when you get home?" has been answered with "Wife will look after." The oral evidence of the offender confirms that his mother cooks meals for the offender's father and herself, although the offender does the shopping for them. He visits three or four times per week.
He referred in his evidence to the poor health of his mother, his mother having high blood pressure and diabetes. Many people have high blood pressure and diabetes. Indeed, most men over 50 have high blood pressure and diabetes, which is not an uncommon problem for those in older age, especially diabetes type 2. The offender's parents still live together in Waterloo. It would appear that a district nurse might call upon them when required to change the bag that collects the offender's father's urine from the suprapubic catheter. The proposed operation appears to be to replace or renew or somehow deal with the current suprapubic catheter, which the offender says he was told by the doctor, who must be Dr Lee, that it required further problems or was not working correctly.
This adjournment application is supported by a letter from the offender's brother Jia Ke He bearing date 14 October 2021. It says this:
"My name is Jia Ke He, brother of the defendant. I'd like to submit this letter to state the case why my brother is an integral part in caring for our elderly parents. We have two elderly parents who are very unwell and need constant, round the clock care. My dad has an upcoming major surgical procedure, which require even more care. My brother is and has been integral part in our family being able to provide care and support.
I own and operate two businesses, often needing long working hours. My wife and I have three teenage children round the clock parenting and attention as all teenagers do. Additionally, my wife suffers from mental condition and has suicidal thoughts. In November 2020, she spent three weeks in Randwick Hospital due to mental illness. Hence, I have managed only recently to take some time off as my wife's mental conditions deteriorated and needing all my time and effort. She has spent considerable time in and out of hospital to deal with her mental issues, which has been very stressful and has no time for me to care for my parents. I have provided some medical reports regarding my wife's condition. Hence, this leaves my brother the only one being able to care for our parents.
Please take into an account my parents' health and my family's situation. I really need my brother to look after my parents because I believe he doesn't have much time left. We ask for him to be awarded leniency in consideration of his role as the main carer as he is providing support to our parents, given the length of time my father has left."
One can immediately see in this letter hyperbole. There is proposed day surgery under the care of a urologist, something to do with the suprapubic catheter. This, I am asked to accept, is a "major surgical procedure". I cannot describe any surgery that only requires an admission for part of the day into a hospital as major surgery. Leaving aside his urinary problem, the offender's father otherwise appears to be fairly able. He and his wife still live together. The offender's brother and his wife and their children live in Maroubra. The offender lives in Macquarie Park.
The two businesses operated by the offender's brother are Chinese restaurants. One is at Maroubra, where the offender's brother mainly works. The other is at West Ryde, where the offender works. Indeed he referred to it as his own business. He works there from 10am to 3pm and from 5pm to 10pm, six days per week. His day off is Monday. However, as he considers this his own business, he can take time out when needed to attend to his parents. He clearly does the shopping for them. When he is present in the unit, he might assist his father going to the lavatory in order to try to void urine. However, he is not there 24 hours per day.
He visits three or four times a week. Otherwise, it would appear that the offender's father with the assistance of his wife and the district nurse, can cope with the exigencies that arise. The offender's granddaughter, the eldest child of his brother, a lady now 19 years old and a university student, appears to act as an interpreter for her grandfather and also for example, filled out the documents that form part of Exhibit S13. It is not known when the surgery proposed by Dr Lee will be carried out. The offender told me that he had spoken to the doctor two days ago and was told by the doctor that it would be in two weeks, and when a date is fixed he would let the offender know.
However, it transpired in cross-examination that the conversation with Dr Lee was indeed between Dr Lee and the granddaughter of the offender's father, the eldest daughter of his brother Lawrence, who conducted the conversation with Mr He, the offender listening in beside her and asking her questions to ask the doctor. One does not know exactly when the procedure will be carried out, and the procedure itself would appear to the grand scheme of things minor.
The amount of care that the offender can provide to his parents is limited only to his hours of work and his living elsewhere. The family commitments may be relevant as to the type of sentence to be passed upon the offender. But when there is no sure date for the surgery and when the surgery itself appears to be, with the utmost respect to those involved, minor given that it is only day surgery, it appears to me that there is no reason to adjourn the current sentencing exercise, an adjournment which might be to an as yet unknown date in 2022.
The proceedings have been hanging over the offender's head for over two and a half years now. It is just over two and a half years between his arrest on 9 April 2019 and 15 October 2021. This litigation must be brought to an end, and considering the pattern shown in the father's health, the proposed surgery appears to have been only yet another minor episode in repeated visits to hospitals which may be the result of some medical anxiety or medical uncertainty, rather than because of some medical necessity. The application for the adjournment is accordingly refused.
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Decision last updated: 30 March 2022