HIS HONOUR: The prisoner, Run Li, appears today for sentence in relation to two offences in respect of which he was found guilty by a jury in May this year. He was found guilty by a jury of a count that alleged that he, on or about 31 March 2014 at Rhodes, in the state of New South Wales, did have sexual intercourse with [redacted] without her consent, knowing that she was not consenting in circumstances of aggravation, namely, that at the time of the offence he did occasion actual bodily harm to her. I will refer to her hereinafter as the victim. That offence, contrary to s 61J(1) Crimes Act 1900, carries a maximum penalty of 20 years imprisonment and has a standard non-parole period of ten years imprisonment. The prisoner was also found guilty of count three in the indictment, that he, on the same date, at the same place, did assault the victim, thereby occasioning actual bodily harm to her. This is an offence contrary to s 59(1) Crimes Act 1900 and carries a maximum penalty of five years imprisonment. It has no standard non-parole period.
The prisoner was arrested on 7 April 2014 and has remained in custody since that time. All time spent in custody will be taken into account in fixing the appropriate sentences. The prisoner was born on 22 July 1988 thus, on my calculation, at the time of the commission of the offence, the prisoner would have been 23 years of age, turning 24 in July of 2014. The prisoner has no prior criminal convictions. In making these remarks on sentence, there are a couple of preliminary matters to note by way of introduction.
Firstly, the prisoner did not give evidence at his trial, nor in the sentence proceedings, although he presented material to me which I have accepted in relating to his personal circumstances. For the purposes of my fact finding in relation to the matters for which he is to be sentenced I do not propose surveying the evidence in any particular detail. In accordance with the principles identified by the learned Crown Prosecutor in her helpful written submissions, I will findings of fact that are consistent with the verdicts of guilty, on the clear understanding, of course, that relevant facts to be found adverse to the prisoner in relation to the objective facts are matters that are required to be established beyond reasonable doubt by the prosecution.
As it transpired, having regard to the written submissions of both parties and their oral submissions, which I have obviously taken into account and which I will not reiterate except to from time to time, there is little disagreement between the parties in respect of the assessment of the objective facts save for one matter concerning whether the offences involved a breach of trust on the part of the prisoner.
For the purposes of my remarks on sentence, I point out that the combination of: the direct evidence of the complainant of surrounding circumstances relating to the assaults, both before and afterwards, and what memory she has of events occurring at the time of relevant assaults, bearing in mind she was adversely affected by a prescription drug at that time, in combination with a body of circumstantial evidence, particularly evidence of injury to the victim relevant to the particular counts, the evidence of the collateral conduct of the prisoner in a range of ways, including his attempt to flee the country on 7 April, his opportunity to assault the victim and other matters arising from the case, present a Crown case which was strong.
I note in relation to this aspect of the matter that this has never been acknowledged by the prisoner. I note that he has shown absolutely no remorse in this Court for his conduct towards his former friend, the victim of these assaults. A characteristic of the material that he has presented to me from himself is a degree of self-absorption, regard only for his own circumstances and no regard for that of the victim. I appreciate he pleaded not guilty to the charges which he was fully entitled to do, but he did so in the context, bearing in mind he gave no evidence, of a very strong Crown case.
I note in this regard he did apologise to the victim when she was recovering in hospital. Sometime after 1 April. Having been treated in respect of what apparently was ingestion of prescription drugs. But his apology, or apologies as they emerged in the evidence, have to be seen in the context of his attempts to dissuade the complainant from taking any matter arising from her experiences to the authorities for investigation and attempts by him, in an unsuccessful way, in some way, to impede any scientific or medical examination of the victim. In my view, such apologies as he made to the victim, albeit that he had intense emotional feelings for her and obviously felt sorry for her, were largely self‑serving. However, I accept that part of the apology showed some measure of consciousness on his part for the wrongdoing that he had perpetrated against the victim.
So far as the facts of the matter as I find them, based upon the evidence at trial, the prisoner and the victim, who was about the same age as the prisoner, were both Chinese citizens coming from different parts of China who met one another in a town or city called Regina in the province of Saskatchewan in Canada. There, when the met in September of 2010, they studied different courses and they had a deal of social contact with one another as well as travelling together at various times. In April 2012, the prisoner, the victim and some other people who were friends, travelled to Montreal, to the east of Saskatchewan. At the time the victim was, as I understand it, "dating" a man who was to become the victim's husband in early 2014.
They had some contact in China and also, as I understand the evidence, the prisoner had met the victim's mother on at least one occasion. The victim left Canada in early 2013 but apparently kept in contact with the prisoner via various social media sources. The prisoner remained in Canada for a period of time. His precise movements in 2013 and 2014 are not completely revealed to me but I do understand that the victim herself came to Australia in September 2013 to continue her studies. Particularly to finish or undertake a master's in business studies. The prisoner came to Australia in early March 2014 with a plan also to continue his studies, he having graduated with a degree, the evidence of which is before me in the papers produced by his counsel.
It would appear on the evidence at the trial that his other purpose in coming to Australia was to see the victim. He must have known, of course, at that time, that she had married. Her husband at that time was living in the Middle East, pursuing his career but maintaining regular contact with his wife. In the course of submissions, I mistakenly suggested to counsel for the prisoner that the domestic arrangements between the prisoner and the victim at the time of the commission of the offence reflected the fact that the prisoner was a guest of the victim in her home, which was an apartment in the Rhodes area.
In fact, re‑reading the evidence, I now understand that the premises in which the offences were committed had been rented by the complainant but in agreement with the prisoner whilst he was still overseas and before she took occupancy of the premises, some weeks it would seem, before the commission of the offences and before the prisoner's arrival. Before the prisoner arrived at the premises from overseas a friend of the complainant also moved in and, for reasons agreed to between the parties, the prisoner agreed to basically sleep on the couch as the premises only had two bedrooms and the two ladies occupied the bedrooms.
The prisoner clearly had a romantic interest in the victim notwithstanding the fact she was married. But the victim regarded him as a friend. A friend with whom she had no sexual relationship and it is clear on the evidence that she had absolutely no romantic interest in him at all. He obviously had held back from her or disguised his feelings for her. The offences were committed on or about 31 March into the morning of 1 April. It is not possible to identify with precision when the offences occurred, particularly having regard to the fragmented memory of the victim. At the time that the offences were committed, the victim was studying quite hard for her degree and, as I understand the evidence, was under a deal of stress at that time. She was very anxious about her studies. The prisoner, at that time, had no study commitments.
On 31 March, the prisoner and the victim went shopping at about lunchtime at a nearby shopping centre, sometime around 2pm. On that occasion, the prisoner purchased some alcohol and some items of food, particularly fruit and the like were purchased. The victim did not drink alcohol as a rule. Shortly after returning to the apartment, the prisoner made some watermelon juice for the victim and gave it to her and made some for himself. She complained to him after drinking it that it tasted "quite funny" or strange.
Her evidence at the trial was that she began to feel dizzy and show what transpired to be the effects of ingesting a benzodiazapam type substance within "ten seconds" of drinking the watermelon juice. The expert opinion at the trial was that it would have taken longer for the drugs that were ultimately found in her blood to have the effect that was evidenced by subsequent events. After ingesting the juice, at whatever time this occurred, the victim became disoriented and dizzy and was encouraged by the prisoner to go to her bed.
It is clear on the evidence that the victim had ingested, either wittingly or unwittingly I am unable to conclude, prescribed medication that she did not usually take. She took such a quantity of it, even though she was naïve to the drug, that it rendered her unconscious or semi-conscious for nearly the next 24 hours. Leading to her ultimately, in the late morning of 1 April, being visited by ambulance officers who were called by the prisoner, somewhat reluctantly as I will outline shortly, and which led to her being taken to Concord Hospital where she remained for the next three or four days before being assessed by a medical practitioner and a sexual assault counsellor at another hospital.
Over the 24 hours after she was admitted to hospital, the victim gradually regained consciousness and some memories of what had happened during the previous 24 - 48 hour period. The evidence at the trial revealed that whilst she was under the influence or affected by the medication that she had taken, the prisoner gave her other medication, the character of which I am unable to identify, although it could have been the same medication that was ultimately found in her bloodstream. Even on 2 April, the evidence reveals signs of the effect of the prescription drug, with the victim having little memory of events beforehand. The results of the tests conducted on her blood showed the presence of the drug Clonazepam. This medication is a drug administered to treat high levels of anxiety. It is also used as an anti-convulsant and, being a benzodiazepine, has a strongly sedative effect.
It affects a naïve user more than an experienced user. It is a medication that can cause amnesia or fragmented memory, consistent with the history given by the victim. The prisoner, after the admission of the victim to hospital on 1 April, handed over to hospital authorities, I would assume for the benefit of treating the victim, a bottle of medication. It turned out that this bottle of medication contained another drug, Clozapine, which is described as a second-generation anti-psychotic drug, and was not the drug that the victim had ingested. The evidence at trial revealed that if she had ingested that particular medication it would have shown up in the blood sample that was taken on 1 April 2014.
Given the pleadings in the indictment and the fact that the prisoner was not being prosecuted for an offence alleging the drugging of the victim for the purposes of committing a serious indictable offence, it is not open to conclude that the prisoner drugged the victim with an intent to sexually assault her or commit another offence.
The Crown has properly pointed out that this is so not only having regard to the terms of the High Court judgement of De Simoni (1981) 147 CLR 383 but because, if the Crown was able to prove beyond reasonable doubt that the accused had drugged the victim for the purposes of committing a serious indictable offence, there would have been a prosecution pursuant to s 38 Crimes Act 1900.
Having regard to the evidence of the complainant and of the effect upon her over a period of time, her presentation at hospital, the evidence of her condition when seen by ambulance officers late on the morning of 1 April, it is quite clear over the period of time from the when the victim began to feel dizzy and went to her bedroom, where she remained for an extended period of time, up until the time that she was able to be assessed by ambulance officers, the victim was unable to protect herself and the prisoner took advantage of her state to sexually assault her, as pleaded in relation to count one and assault her in relation to count three. The Crown has proven beyond reasonable doubt that the prisoner, during this period of time, penetrated her vagina whilst she was either unconscious or semi-conscious, an event about which the victim does not have any memory.
This must have occurred from sometime during the late afternoon or evening or night of 31 March or the early morning of 1 April. Her lack of memory, I accept of course, does not reduce her distress and I accept from her victim impact statement that this circumstance or these circumstances have had a profound effect upon her which continues. One might have thought that one did not need a victim impact statement, even allowing for its limitations, not being tested in cross‑examination and the like, to come to that conclusion. The victim has been left in a state of doubt as to precisely what has happened to her and, for her, I accept without any hesitation this is a chilling, disturbing state of affairs which remains with her.
From the time that she has been admitted to hospital up until the present time, the prisoner has, in my view, done nothing to quell this concern or to comfort her beyond, as I pointed out, some apologies that were offered to her while she was in the hospital on 2 April 2014. He was admitted to hospital shortly after her admission, I am told, without a great deal of detail, in respect of his ingestion of prescription drugs. This was a matter not led before the jury because the motive behind that was equivocal. The apology provided to her does not provide any measure of peace of mind when the apology comes from a person who is responsible for a sexual assault.
Of the events that occurred while she was affected by the prescription drug before she went to hospital, the victim has scattered or fragmented recollection. She has recollection of her underwear being pulled down. There is also clear evidence that the prisoner changed her clothing without her permission or without really any knowledge on her part. It also is clear that the prisoner kept the character of her condition, although he was well are of it in my view throughout the time she was in the bedroom, hidden from any other person who might have had an interest in her.
The complainant, on medical examination, was found to be suffering an injury to the fossa navicularis, that is, within the genitalia of the victim, consistent with penetration of the genitalia. This injury is the relevant "actual bodily harm" pleaded in respect of the circumstance of aggravation in count one. This injury was caused either by a finger or a penis. The victim suffered a number of other bruises to her lower limbs and elsewhere on her body, although this has not been established as arising from the sexual assault or even connected with it. The evidence at the trial was that the injury to the genitalia would have resolved within a week, it is not a permanent injury, nor a "major one" but obviously was a significant injury and aided proof of guilt in relation to count one.
The Crown has conceded that it cannot prove beyond reasonable doubt that the intercourse with the victim giving rise to the offence in count one was penile/ vaginal intercourse or any other particular form of intercourse. Further, the Crown accepts for the purposes of its submissions and the context of the verdicts of the jury that the body and leg bruising cannot all be established as being as a result of any intentional application of force by the prisoner. As it was raised in the trial and the cross-examination of the complainant, and properly so, the character of the bruising may have been consistent with the complainant falling over within the room making her way to the bathroom in circumstances that she cannot remember.
She does remember, on occasions, being alert enough to be standing on her feet. But clearly also has memory herself of being unstable when affected by the relevant drug. This and other circumstances inconsistent with the matters pleaded in the indictment may possibly explain the various injuries she suffered to her body. However, the fact that she was in a state where she could fall over, suffering the bruises that were observed when she was medically examined in respect of her complaint about the conduct of the prisoner, in my view, casts a light upon the failure of the prisoner to properly care for her at a time when, knowing that she was affected in some way by some substance, he should have sought assistance at a much earlier time.
The High Court in Australia in Ibbs v the Queen (1987) 163 CLR 447 acknowledged, if I might paraphrase the essence of that judgement relevant to this case, that an offence of sexual assault involving intercourse, which can involve or constitute a range of conduct, may reflect conduct of varying degrees of heinousness or seriousness. The New South Wales Court of Criminal Appeal, in a number of judgements, has reflected upon this matter. Of course, sexual intercourse for the purposes of s 61(H) can involve sexual connection occasioned by the penetration to any extent of the genitalia of a female person or the anus of any person by any part of the body of another person, an object manipulated by another person or sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person or cunnilingus.
The Court of Criminal Appeal has, at various times, sought to draw or not draw distinctions between the relevant seriousness of the acts referred to in s 61(H) and there are many cases about this. The essence, however, of those judgements appears to me, without having to review a number that I have researched, is that whilst the form of intercourse is an important factor, it is not to be regarded as the sole consideration as to the seriousness of the offending (see R v Hibberd (2009) 194 A Crim R 1, particularly at [56]). Other relevant matters in deciding where the seriousness of the offence may lie will include the degree of violence, the physical injury or hurt inflicted, the form of the forced intercourse, the circumstances of humiliation and the duration of the offence. Of course, here, the humiliation for the victim occurs after the event and the duration of the offence is unknown.
Then again, the short duration of a sexual assault would not ordinarily be considered as a factor which reduces the objective seriousness of the offending, as many sexual assaults will not be prolonged as the offender will seek to avoid apprehension. This was pointed out by Price J in R v Daley [2010] NSWCCA 223 particularly at [48]. Hunt J, then the Chief Judge at Common Law, in an unreported decision of O'Donnell in 1994, made observations about the various characteristics of sexual penetration. However, it has been held since then that his Honour's observations did not intend to reveal "some matter of law". They were expressed by him as a matter of opinion, such as was held in R v Andrews [2001] NSWCCA 428, at [6].
There are a number of authorities touching upon this general issue, particularly I refer to R v AJP [2004] 150 A CRIM R 575 at [23] - [25], R v PGM (2008) 187 A Crim R 152, particularly at [28] and R v MS [2005] NSWCCA 332 at [16]. So far as the distinction between digital and penile penetration particularly, whilst it has been held that digital penetration is "generally" less serious that an offence of penile penetration, each case must depend on its facts, citing Hibberd to which I earlier referred and particularly referring to what was said by the Court at [21] and [56]. I also cite what was said in R v King [2009] NSWCCA 117 at [36].
In that judgement, at that paragraph, it was held:
"What is to be considered is the type of penetration in all the circumstances surrounding the offending. The type of penetration is simply one factor and by itself does not indicate how serious the particular offence is. The simple fact is that, had the intercourse in this case been penile penetration, it would have been an offence of very great seriousness if for no other reason than because of the age of the child. In such a case, the seriousness of the offence may have been above mid‑range. But the fact that it was not penile penetration does not mean that the offence is reduced to low range."
Judges obviously, in the context of the high authority to which I have referred, must be very careful not to readily assume that a particular category of sexual intercourse is more serious or not, as the case may be, than another type of sexual intercourse as it may be contemplated within the definition of sexual intercourse in the Crimes Act. Of course, in this matter, the difficulty is, particularly for the victim, that she cannot know and cannot be assisted in determining what had happened to her, even by myself with the benefit of the evidence at the trial. The fact that the DNA profile of the accused was alleged to have been found in connection with a discarded condom, which I hasten to say, of itself did not prove sexual intercourse had occurred in all the circumstances, does not resolve the matter.
In this matter, in the context of the circumstances in which the intercourse occurred, the difference between the two kinds of intercourse for assessing the objective seriousness of the offending is of little significance. What the Crown has proven is was penetration of the complainant's vagina by the accused by means unknown causing injury when the victim was vulnerable, unable to defend herself nor having any choice whatsoever in whether she consented or not. Particularly in circumstances where the prisoner knew she was unable to exercise any choice in relation to the matter or defend herself. I accept, however, in that context that had the Crown proven penile/vaginal intercourse I would have had to conclude that that situation in these circumstances would have been more serious than proven digital intercourse.
In any event, the sexual assault was committed by her friend to whom she was entitled to look for assistance and protection in the circumstances in which she found herself, whether her incapacity was self-induced, albeit accidentally, or for some other reasons. However, I have concluded that these circumstances do not constitute a breach of trust, as the Crown had submitted to me. The prisoner, of course, must have known that his friend had no romantic or sexual interest in him, she having married only a few months before and only separated from her spouse by reason of academic or economic necessity.
The crimes may be described in all the circumstances as opportunistic. That is, that the prisoner took advantage of her condition, rendered unexpectedly. It was a heartless act on his part and was followed or associated with a substantial period of time of not providing proper care for her although, in fairness, he may not have fully appreciated the seriousness of her condition. The reason that he finally rang the ambulance was because of the enquiries made by the mother of the victim following upon the failure of the husband to be able to contact his wife and the accused's response to the mother's enquiries, the accused did show the mother on a Skype type facility the victim lying in bed but was less than enthusiastic or urgent in response to his demands.
Instead of acting promptly, in my view, on the enquiries made by the mother, there was still an element of prevarication about seeking medical treatment. This was not left to the jury as evidence as consciousness of guilt, but in the context of the verdicts reached by the jury it is quite clear consequently that the prisoner was reluctant for her to be medically examined for fear of revealing what had occurred.
I have had close regard to the various submissions made by the Crown and the defence as to what might be regarded as the character of the objective seriousness of the offending.
A starting point in this regard, bearing in mind the standard non-parole period, is s.54A(2) Crimes (Sentencing Procedure) Act 1999, hereinafter referred to as the Act. The particular sub-section states that the standard non-parole period represents the non-parole period for and offence in the Table of the Division that "taking in account only the objective factors affecting the relative seriousness of the offence is in the middle range of objective seriousness." In relation to the assessment of the objective seriousness of the offending, of course, s 21A(1) imports consideration of relevant objective facts not otherwise provided for in s.21A(2) and possibly s.21A(3).
I note that by reference to s 21A(2), in this matter there was present the aggravating factor that the victim was vulnerable. Secondly, there was present the aggravating factor that the offence was committed in the home of the victim, albeit, I accept that it was the residence of the prisoner as well. He was not a stranger or even an invitee thus this issue is not significant. Thirdly, the emotional harm to the victim, having regard to the character of the assault and the circumstances of the victim not being able to know precisely what has happened to her, was substantial.
The physical harm to the victim ultimately was, in the scheme of things, "minor". I accept in the context of assessing the objective seriousness of the offence that in respect of the relevant matter pleaded in aggravation of actual bodily harm and the character of the actual bodily harm is at the lower end of the scale of circumstances of aggravation. I should say, that is contemplated by s 61J. For example, as I have observed in other cases, in some instances being in company may not be a significant aggravating factor, such as in a break, enter and steal, simply because by being in company a person may simply be able to carry a little more in the way of property out of the premises. In a sexual assault matter, however, committing an offence in company would involve a considerable degree of further humiliation to the victim.
Of course, circumstances of aggravation contemplated by the section include a victim under the age of sixteen years, a person under the authority of the offender, a victim with a cognitive impairment as the victim or having a serious physical disability, depravation of liberty, breaking into a home and the like. I am not saying that the circumstance of aggravation is not a serious matter but in the scheme of circumstances of aggravation that the section contemplates, having regard to the character of the injury, it is not as significant as other circumstances contemplated by the section.
So far as mitigating factors that arise that are only relevant to the objective circumstances, I find, on balance, that the offending was not planned, as is conceded by the Crown. Although it is scarcely relevant in an offence such as this, this is not an offence committed in pursuance of organised criminal activity.
The prosecution submitted, however, in the context of aggravating factors, that the offence involved a breach of trust. The submission put by the Crown, primarily relied upon the judgement of the Court of Criminal Appeal of Suleman v the Queen [2009] NSWCCA 70, particularly at [22]. The particular passage cited by the Crown, in my view, reinforces the finding that I have made that I could not be satisfied beyond reasonable doubt that there was a breach of trust rather than supporting the Crown's contention.
I accept the detail of the submission put by learned counsel for the prisoner that the co-habiting of flatmates in the circumstances here did not create the "special relationship" discussed in Suleman, the defence citing the decision of Cowling [2015] NSWCCA 213. Whilst they were friends, it was not of the character of relevant "special relationship".
Having regard to the objective facts as I have found them, the relevant aggravating and mitigating factors that are concerned only with the objective seriousness of the offending, having regard to the character of the actual bodily harm that was suffered and having regard to such findings as I can make as to the character of the sexual intercourse but noting, of course, most significantly, the vulnerability of the victim, I have concluded that the offending is not within the middle range of objective seriousness but is marginally below the lower cusp of that category.
Of course, in the decision of Way of the Court of Criminal Appeal from 2004, largely overturned of course by the High Court in Muldrock in 2011, Spigelman CJ observed that the middle range of objective seriousness was "not necessarily a narrow band." I am mindful, of course, of what the Crown drew to my attention from the decisions of the Court of Criminal Appeal as to the seriousness of an offence of sexual violence, particularly Ali v the Queen [2010] NSWCCA 35.
That appeal, dealing with an offence under s 61I Crimes Act, where the Court held that for that particular offence, "substantial non-sexual violence is not required to place an offence" (pursuant to s 61I) "above the middle range of objective seriousness." But in assessing this particular matter there are a range of considerations to be taken into account, particularly in the context of the range of character of conduct that can give rise to sexual intercourse and the range of circumstances of aggravation.
With regard to the assault occasioning actual bodily harm offence, the victim remembered at one stage while she was affected by the drug in her bedroom, either trying to get out of bed or to stand up and being pushed in the chest by the prisoner, as I understand it, on one occasion, giving rise to the count of assault occasioning actual bodily harm. In pushing her to the chest, the jury was satisfied beyond reasonable doubt that he caused one injury to her chest, observed in medical examination after her release from hospital, which was a bruise approximately five centimetres by three centimetres.
The recollection of the victim is not complete and precisely when the assault occurred she is unable to say. She was pushed back either onto the bed or towards the bed. I cannot conclude that this assault facilitated the sexual assault or was directly or indirectly related to it. But, again, the offence was committed when the victim was well affected by the drugs that she had obviously ingested and the prisoner had taken advantage of her vulnerability. This is an offence, I should point out, that could have been committed by a person such as the accused whether the victim was vulnerable or not. The prisoner's conduct occurred when she was vulnerable.
The injury to the chest was minor in the context of injuries that are consistent with actual bodily harm and the degree of force and the character of the application of force, that is, a pushing of the chest, falls well short of other intentional application of force that could constitute a relevant assault, such as a blow by a fist to the head. However, it is still distressing for the victim to remember this episode. I cannot conclude beyond reasonable doubt the offence was related to an ulterior motive to sexually assault the victim.
In the circumstances where the prisoner has been in custody and having regard to the fact that he is to be sentenced for a more serious offence, which obviously must attract a term of imprisonment notwithstanding s 5 of the Act, this is an offence that warrants a custodial sentence. It does represent an offence at the lower end of the objective seriousness of an offence of this character which would otherwise dictate the imposition of a custodial sentence. Of course, the prisoner may have assaulted her simply to require her to go back to bed rather than wander around in a groggy state and injure herself in some way but, as I pointed out before, it must have been clear to the prisoner the victim needed medical attention. Certainly, objectively, she needed medical attention as her subsequent hospitalisation established. I have already made comments about the delay in seeking medical attention for her.
All of the prisoner's conduct after the complainant was transferred to hospital spoke of this consciousness of wrongdoing. It may have related to aspects of his care of the complainant after she lapsed into semi‑consciousness or consciousness.
In relation to the collateral conduct of the prisoner I note that in respect of both offences, although it would seem most pertinent to the proof of count one, were his apologies to the victim, his attempts to persuade the victim not to contact police, his request of her to shower in hospital, his purchase of an expensive gift for her which he was carrying with him at the time of his arrest and obviously did not have to opportunity to give to her, his offerings at a Buddhist temple for the victim and her family, his willingness to leave the apartment when it was put to him by the victim's friends that he should not remain and, of course, most telling, as it was left to the jury, his attempt to flee to Hong Kong in circumstances where he must have known a police investigation was being undertaken.
He may have been fleeing from what he would regard in his own self-centred way as an unjust investigation. It is clear that he was distressed at his own conduct which may of itself show some degree of contrition. But it is also clear in my mind that he sought to avoid any potential prosecution. There were many aspects of his conduct, some of which were not before the jury, that were very highly suspicious. As it transpired of course, much of this other collateral evidence was not needed by the jury in proving his guilt. The victim's recollection, the medical evidence of the unexplained vaginal injury, the DNA evidence, the opportunity of the prisoner to commit the offences, were all of themselves sufficient to prove his guilt.
I turn now to the subjective circumstances of the prisoner. The prisoner has written a letter to the Court which I am prepared to accept as far as it goes, setting out his university training in China and his university training in Canada. He worked very hard to obtain his degree in Canada and I accept that that is so. He also worked hard to improve his skills in English. I accept that he applied to study a Master's degree in Finance at Macquarie University and that was his ostensible reason for coming to Sydney. To commence that study. He spoke of his family background. It is clear from the references from his mother and his aunt that his family are people of substance in China. His grandfather he describes as "an honourable veteran and a highly respected member of the local community."
His mother is highly educated. His parents are university graduates. His mother having received an MBA from a school of management attached to Beijing University. His father was a computer engineer in data analysis. Both his mother and his father are now retired. His mother, I accept, was here in Court on the last occasion and his family maintains a great interest in his welfare. Two of his aunts are well placed in the medical profession in China. One is a Director and Professor at a hospital in Shandong Province, the other aunt has worked as a chief consultant for commercial projects. Based upon his history of employment, he has had work on a voluntary basis but he has had no paid employment until he actually came into custody where he worked as a sweeper between December 2015 until February 2017. He had that employment taken away from him because he was placed on protection.
He has particular goals to pursue his academic career. He says that his family is suffering because of his incarceration. He is concerned about his elderly grandparents but complains only about the agony that his family has had to endure and the time he has spent awaiting his trial. I agree with him that the delay in this matter coming to trial of over three years was a complete and utter disgrace. Who is to blame for that I do not know. I cannot conclude the prisoner is to blame for that.
In support of his statement about his personal circumstances, as I said, I have a reference from his mother who speaks of his good character, his studious approach to his work at school and at university. His reasons for coming to Australia were to improve himself. She describes him as a person with a 'big heart', a person who is helpful to other persons. His mother pleads for leniency in his case. She is concerned about her own parents who I assume are the grandparents to whom the prisoner refers to in his statement. To take into account the fact asserted by his mother that, as I would phrase it in my own words, what is alleged against him is entirely uncharacteristic conduct, which I accept. There is no suggestion that the prisoner, by nature, is a sexual predator. I have taken into account what she has written.
His aunt, who is the director of a hospital, also speaks of his industry and the concern to his family that his current situation brings, the fact that he is a kind person to his family, he is sharing with other people and has great potential to contribute to his community. A friend of his who studied at Regina in Canada but graduated shortly after the prisoner speaks of his diligence as a student, his helpfulness to other students, his friendliness. It would be clear to anyone reading this reference in conjunction with the other materials that as I have said, the prisoner's conduct proven against the victim was entirely uncharacteristic. The friend told an anecdote of not being able to receive his degree directly because he could not attend his graduation but the prisoner went out of his way to obtain the degree and deliver it to him personally rather than to have it sent by mail.
He describes him as careful, enthusiastic, good at learning, willing to help people and a good friend and I accept that that is so. Another student has also spoken of his industry as a student, being highly intelligent and humble and being helpful to his friends. A consultant at the Ministry of Education in Regina had the prisoner living with him in his home, it would seem, for over two years. The prisoner was described as a serious student and a highly responsible and sociable young man. He has a great sense of responsibility although he was notoriously "absent minded". He found it difficult to believe the prisoner's conduct was "anything other than an error of judgement." Regrettably it is more than that, but I accept again that that reference underlines the prisoner's uncharacteristic conduct.
I have some references too from two Buddhist chaplains, Ms Carmody and Mr Troyak. The prisoner, as I understand it, is a Buddhist. In fact, as I mentioned earlier, before he tried to flee to Hong Kong on his way, presumably, to China, he made offerings for the victim and her family at a Buddhist temple. In fact, one of his social excursions with the victim before these events, was to a temple south of Wollongong. The prisoner sought religious consolation and has reignited his interest in his religious background and I have taken that material into account.
An important matter in the evidence produced by the prisoner is evidence in the affidavit of the prisoner's solicitor, Miss Konstandopoulos, who appears before me today and annexed documents relating to records of Corrective Services or Justice Health. What that evidence shows is that the prisoner has been documented as having been assaulted on four occasions. He was first assaulted on 13 December 2014 and that assault was related to other inmates within the section of the prisoner's custody learning that the prisoner had been charged with some form of sexual assault. The prisoner was assaulted more seriously on 4 February 2015 and he suffered injuries which caused him to bleed. He was, on one report, "involved in a serious assault due to his offence and inmates state he will continue to be assaulted if he were to remain housed in the mainstream population."
He suffered a bleeding nose, a swollen bridge of the nose, rear scalp lump and some form of laceration to the bridge of the nose. He was also hit in the stomach and the back of the head. He bled profusely and was swollen and bruised. He was treated, in fact, at hospital. He had abrasions and minor swelling but no fractured bones. On 4 February, he was transferred to the Special Management Area Placement, which is SMAP, and the understanding of the solicitor is that it is an area within a correctional centre where protective custody inmates may be transferred following an assessment of their individual circumstances.
He was assaulted just over a year later when he was punched to the jaw. He was then transferred as a result of that assault to the Protection limited Association Area (the PRLA), which in the solicitor's understanding is "an area within a correctional centre that accommodates protective custody inmates." Relevant documentation in relation to this is provided as with the other incidents.
He was assaulted again, apparently after his trial, on 26 May 2017. He was punched but the person who allegedly punched him said it was "in self‑defence". The details of the matter are a little unclear. The prisoner gave an account that seems to suggest that the altercation on this occasion was more connected with a dispute between him and the other prisoner rather than directly related to the character of his offending. But I appreciate he was in the relevant place when he was assaulted because of the character of the offending. There is some evidence of treatment for anxiety whilst in custody, certainly the first few days he was in custody. There are some case reports in one of which the prisoner claimed that he had "attempted suicide on three occasions during his time in MRRC which apparently went undetected as he hid his injuries each time."
I do not regard this as evidence of serious attempts at suicide. Whether he was involved in self-harm attempts, or not, I do not know, but there is no direct evidence to assist me in that regard. I accept that whilst on protection and whilst classified, as he has been at least since early 2015, he has had limited access to particular courses although he has been on remand most of this time. I do note, however, that his solicitor tells me whilst in custody that he had been a wing sweeper as I earlier observed on his own version. He had completed a library access course in January 2015 before he was moved in early February. He also completed an Education and Planning Course (EPC) in 2017 in the MRRC. He has also completed, in March 2017, the "Education Core Skills" course and a course known as the "Health Survival Tips".
The other information provided by his solicitor is that on 9 April 2015, the prisoner, being here on a visa which did not give him permanent residency in Australia, was served with a notice pursuant to s 254 Migration Act 1958, which essentially indicates that because of his visa status, having regard to pending proceedings and the like, the likelihood is that he would be deported which I accept would be so.
With regard to the submissions made by the parties, those submissions of the parties in relation to the objective facts, I have taken into account and I have reflected those submissions in the findings that I have made. So far as the subjective case is concerned, if I might call it that, of course the Crown is not in a position to say much about that. It would not have been aware of the detail of the subjective case at the time of the written submissions being prepared. The Crown conceded that, having seen some of the references, that the prisoner had no prior criminal convictions, which I accept as a relevant mitigating factor and that the prisoner was a person of good character, having regard to that fact and the references that have been received.
I hasten to say, of course, the victim was never suspicious of the prisoner and she spoke well of him so far as her relationship with him was concerned up until 31 March. I am prepared to accept, on balance, the prisoner was a person of good character. In the unusual circumstances of this offending, bearing in mind it was directed at a person with whom the prisoner had an infatuation, I accept that the prisoner is unlikely to reoffend. Having regard to his intelligence, his past industry and the salutary experience of being in custody, he has good prospects of rehabilitation. They are the principal mitigating factors that arise under s 21A(3), as well as, of course, the fact that the offence was not planned. Although that is a matter more pertinent to an assessment of the objective facts. No issue of remorse arises.
It would seem on the basis of the material before me that some of this material that I have seen from the defence had been served upon it. It submitted in the written submissions about matters relating to "extra-curial punishment" and related issues. It is probably appropriate in the context of the material to pick up the matters that have been advanced by the defence, bearing in mind these were matters of greater interest, of course, to the defence.
I have accepted the prisoner has good prospects of rehabilitation. I need not dwell upon that matter. It was submitted, to quote the words of the written submissions of the accused's counsel, that the was an element of "post-ameliorative conduct". In this regard it is submitted that "as a general principle, the law recognises that conduct ameliorating the consequences of an offence may bear upon the appropriate sentence in a variety of ways", citing particular authorities I need not cite, "such conduct may support extending mercy and leniency to an offender."
Although the prisoner did make two 000 calls, ultimately as I have said earlier, leading to the ambulance service arriving and although the prisoner did take some medication to the hospital (it turned out not to be the right medication), presumably to assist in the investigation of the complainant's condition, such weight to be given to the "post-ameliorative" conduct is, in my view, slight. As I have said, the prisoner must have known for hours before he rang the ambulance that the victim was adversely affected by some substance and was not well. He was only prompted to do something because of the concern of the mother of the victim. There is some evidence of post‑ameliorative conduct but some of that occurs in the context, as I said earlier, of self-interest and self-service.
I have already pointed out that I am prepared to make findings favourable in relation to his prospects of rehabilitation for other reasons. The evidence of his apologies and related matters may support that finding as well. But, the apologies that the prisoner made, as with the post‑ameliorative conduct, has to be seen in the conduct of the prisoner which was ultimately self-serving.
I accept that the prisoner's conditions of custody have been onerous and will continue to be onerous and this is a matter to be assessed in accordance with the elusive goal of intuitive or instinctive synthesis as decreed by Markarian [2005] HCA 25.
The prisoner also, apart from being assaulted in custody because of the character of his offending on at least three occasions, is a foreign national. He had an interpreter throughout the trial but I understand his understanding of English is quite good but I accept that there are difficulties for a foreign national, particularly without family connections in Australia. His family lives in China and I have taken that into account as a relevant matter "in his favour" to some extent. As for the so-called "deterioration" of "his mental health", I accept that he is anxious in custody and being in custody, for a young man who has never been in jail before, particularly in a foreign country, must be a very stressful situation. The assaults committed upon him would also provide considerable stress.
However, there is nothing in his mental condition that is causally connected to the offending so principles such as those laid down by the Court of Criminal Appeal in De La Rosa [2010] NSWCCA 194 particularly at [177] - [178], identified by the then Chief Judge at Common Law, do not arise in this matter, save for one matter. As there has been some deterioration in his mental health or there is some degree of anxiety or depression arising from his circumstances, that can impact upon his circumstances of custody. But there is no compelling evidence that the prisoner suffers a significant or substantial mental illness or mental disability, albeit conditions that are reactive to his circumstances.
I have taken into account his status as a foreign national. There are a great deal of submissions made about this in the written submissions of the prisoner and reference to a number of authorities that I need not cite. I accept the threat of deportation is one of a number of factors personal to the offender which will need to be taken into account and may bear upon the impact of the sentence of imprisonment in his case. On the other hand, the bottom line here is that the prisoner, although he did not come to the country to commit the offence, as often happens with foreign nationals importing drugs and the like, was here temporarily. Conviction for the offences for which he has been found guilty, particularly the sexual assault offence, ultimately would require his deportation in almost all such circumstances bearing in mind he was not a permanent resident of this country at the time.
As for the matter submitted by his counsel that "that sentence of imprisonment will result in the offender losing the opportunity to settle permanently in Australia", there is absolutely no evidence before me that is reliable or contemporaneous of relevant events to suggest that the prisoner, notwithstanding wanting to study here, had any plans to permanently reside in Australia.
With regard to relevant matters in fixing the appropriate sentence and particularly the non-parole period, I note the terms of s 54B(2) of the Act. The standard non-parole period is a matter to be taken into account in determining the appropriate sentence for an offender without matters that are otherwise required or admitted to be taken into account in determining the appropriate sentence for the offender. This includes of course, I appreciate, the matters arising under s 21A to which I have referred. In this particular matter, I have made a finding pursuant to s 44 of the Act that there are 'special circumstances' in respect of the fixing of the non-parole period. One of the special circumstances is the partial accumulation of one sentence on another.
I have partially accumulated the sentence for the most serious offence upon the assault occasioning actual bodily harm matter by four months because I believe that is necessary to reflect the totality of the criminality. I have made a finding the two offences would appear to be separate in time, albeit that the assault occasioning actual bodily harm matter is a much less serious offence. In fixing appropriate sentences I am required to have regard to what the High Court has said in a number of authorities, but particularly Mill v The Queen (1998) 166 CLR 59 and, of course, Pearce v the Queen (1998) 194 CLR 610, particularly at [45] in the judgement of the majority. I am required to fix an appropriate sentence for each offence to allow a transparency in the sentencing process to occur and then determine in the context of the totality of the criminality the extent of accumulation or concurrency required.
As I have said, there is a requirement for some partial accumulation which, of itself, is a special circumstance, but beyond that, in the context of an assumption that the principles relating to the fixing of a non-parole period require consideration of matters equally to offenders who will remain in Australia or be deported, the prisoner would require an extended period of supervision to adjust to community living and he would require professional assistance to direct him in respect of his relationships with other people and to assist him to re-establish himself in his studies or employment as the case may be.
I have had regard to the purposes of sentencing under s 3A of the Act. Of course, in respect of the first count of the indictment, the most serious offence, there will always be required, save for circumstances such as existence of a causally connected mental illness or the like, considerable weight be given to general deterrence. I believe there should be an element of personal deterrence in the sentencing. There should be adequate punishment. The prisoner should be made accountable for his conduct and the harm done to the victim is required to be recognised.
I do not believe the prisoner presents as a threat to the community but I am also required to promote his rehabilitation as much as I can, given what ultimately what will occur when he finishes his sentence and is deported. You can stand up thanks, Mr Li.
In relation to the offence of assault occasioning actual bodily harm, count three, you are convicted. You are sentenced to nine months imprisonment, to commence on 7 April 2014 and to expire on 6 January 2015.
In respect of count one in the indictment, that is the offence of sexual intercourse without consent in circumstances of aggravation, you are convicted. You are sentenced to three years, six months imprisonment by way of non-parole period to commence on 7 August 2014, expiring on 6 February 2018. The balance of sentence is three years, six months, expiring on 6 August 2021. The total sentence of imprisonment is imposed is seven years and four months with a non-parole period of three years, ten months, to date from 7 April 2014. You can take a seat, thanks very much.
BROOK: If it pleases the Court, there is nothing further from the Crown, your Honour.
HIS HONOUR: Anything else from you madam?
KONSTANDOPOULOS: Nothing further, your Honour.
HIS HONOUR: Do you understand the sentence I have imposed, Mr Li?
OFFENDER: Yes, your Honour.
HIS HONOUR: Thank you. The earliest you will eligible for release to parole will be in February next year as things currently stand. You have got your rights of appeal. The Crown has its right to appeal. But you will not be automatically be granted parole. It will be a matter for the Parole Authority as to what the appropriate steps should be in your case and I would expect that when you are granted parole you will be taken to an immigration detention facility and, in due course, deported from the country. You are excused.
[2]
Amendments
24 October 2017 - redacted name in para [1]
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Decision last updated: 24 October 2017