HIS HONOUR: Yifei Su stands for sentence as a consequence of pleading guilty to a number of charges. I am to sentence him for an offence of aggravated breaking, entering and committing a serious indictable offence contrary to s 112(2) Crimes Act 1900. The premises into which he broke were those that he had previously occupied with Ms Wenting Xie, with whom he was in a bona fide domestic relationship from some time in 2017 until March 2020. The agreed facts say that it was until January 2020, but Ms Xie in her letter to the Court states that they did not separate until March 2020. The serious indictable offence which the offender committed was intimidation of those present within the dwelling. The circumstances of aggravation were that at the time that he broke into the premises, he knew that she was present in those premises.
The circumstances of breaking were technical. The door was unlocked and he opened it. He turned a knob, or pushed a handle, or the like, to cause the door to open, and that is in law a "breaking". Inside the premises he assaulted both Ms Wenting Xie and her then boyfriend Mr Ce Wang. The offender has pleaded guilty to assaulting each of Ms Xie and Mr Wang. He has been committed for sentence in this Court for those offences.
The offender asks me to deal with him as well for two breaches of the Firearms Act 1996. One is a breach of s 39(1)(a) of that Act, not taking all reasonable cautions to ensure that a firearm was safely kept, and an offence under s 41(1) of that Act of not having approved storage in compliance with the requirements of the Act. The maximum penalty for each of those offences is imprisonment for two years and/or 50 penalty units, that is, a maximum fine of $5,500.
Returning to the principal offences, the maximum penalty for aggravated breaking, entering and committing a serious indictable offence is imprisonment for 20 years. Parliament has prescribed a standard non-parole period of five years. The maximum penalty for common assault is imprisonment for two years. There is no standard non-parole period. Although the offender was charged with common assault these assaults appear to have caused actual bodily harm, and although I shall describe that, I cannot take it into account because that would be taking into account more serious offences than those for which the offender stands for sentence.
During his relationship with Ms Xie, she and the offender resided at Unit 1106/260 Coward Street, Mascot. When they separated, the offender went to live elsewhere in that apartment block, Unit 519. The unit in which Ms Xie continued to reside was in a secure unit block that requires an access fob to enter the lobby and gain access to any level of the building. To open the front door of Ms Xie's unit a PIN code is usually required rather than a key. On the date of the offence the lock was broken and the door could be opened without use of the PIN code even though the PIN code was in fact known to the offender.
The offender and Ms Xie had developed their romantic relationship as a result of her working for him. After their romantic relationship ceased, and they stopped living together as man and wife, the victim continued to work for the offender's company. They remained in contact a few times each week.
At about 1.10am on 23 October 2020 the victim received a message from one of the offender's friends who was known to her as Wang. The text message read:
"Yifei is drunk and wants to come to your property, we are on the way."
The victim, Ms Xie, replied asking that Wang stop the offender coming to her home because her boyfriend was there. Wang replied:
"We will be there shortly, can't stop him because he's drunk."
At about 1.16am, closed-circuit television ("CCTV") outside the victim's unit door captured the offender and his two friends approaching the residence. The offender knocked on the door before opening it. He entered with his two friends, the man known to Ms Xie as "Wang" and another man known as "Frank".
After entering the unit the offender approached Ms Xie's new boyfriend, Mr Ce Wang, who was in the living room, and began yelling at him, saying, amongst other things, "Fuck you". Mr Wang had never met the offender before and asked him on numerous occasions "who are you?" The offender attempted to hit Mr Wang in the face but missed. Mr Wang grabbed the offender and the two began to struggle, falling to the couch. During the struggle the offender bit Mr Wang's fingers. That is a very unmanly act for any adult male.
In the meantime, Ms Xie was attempting to separate them and, as she was doing that, the offender slapped her across the face with the back of his hand. Ms Xie called upon his two friends, Wang and Frank, to assist in separating the offender and her new boyfriend Mr Ce Wang. They helped her to do so. Mr Wang said that he was going to call the police, and the offender walked into the kitchen area. The offender said, "I won't keep you alive to see the police". That is a threat of violence.
Mr Wang went into a bedroom in the residence and attempted to call the police but stopped when one of the offender's friends, who is not clear, asked him not to call the police. Mr Wang did not call the police at that time, but he then heard some slapping sounds from the kitchen. He left the bedroom and asked the offender again who he was, and why he was in the house. The offender said that he had bought all the furniture in the room and began to try to fight with Mr Wang again. The offender tried to kick Mr Wang but he missed, doing damage to the wall behind him.
Mr Wang then went back to the bedroom and used his mobile phone to call police. That caused the offender, together with his two friends, to leave the building. When Mr Wang returned to the lounge room the offender and his two friends had gone. CCTV footage shows the three leaving the apartment at 1.31am. By that time the offender was shirtless. The relevant action occurred between 1.16am and 1.31am, a period of 15 minutes.
As a result of the offence, Mr Wang suffered bruised and cut fingers, scratches on his abdomen, and scratches on his shoulder. Ms Xie suffered a scratch to her elbow and had red marks on her knees.
At 5.45pm on that day, Police attended an address in Pyrmont, which I assume was the offender's business address, and placed him under arrest. During the arrest the offender was asked if he had any firearms and told Police that he had firearms at his address in Mascot. He gave the Police the keys to the gun safe at his address in Mascot.
The offender was taken to the Mascot Police Station, but exercised his right to decline to participate in an electronically recorded interview.
Police attended the offender's unit. In the bedroom occupied by the offender, they found a safe within the wardrobe. Police used the safe key provided by the offender to open the safe and located the two firearms lawfully registered to the offender. Each firearm was a nine millimetre pistol. However, each was loaded with a round in the chamber. Also in the safe were two magazines of ammunition. The safe did not meet the requirements of a "Category H" safe as it was not properly secured by at least four anchor points to a suitable surface. The safe was not anchored at all, and could freely be pushed around the base of the wardrobe. Furthermore, the firearms were not at the address to which they were registered. The inference to be drawn is that they were probably registered to the premises in which Ms Xie continued to reside, and in which she and the offender had resided when they were living together as man and wife.
One can understand the gun safe's not being secured by anchor points to a suitable surface. It is likely that the unit occupied by the offender at the time of the offence was rented and his lease would not have permitted him to anchor the safe, for example, to the floor, or to the landlord's fixtures. According to a history given by the offender, the firearms ammunition was in the gun safe because the proper container for the ammunition was "broken".
In evidence is a letter from Ms Xie bearing date 28 September 2021. At its commencement she sets out the circumstances which led to their relationship, their being together, and their separating. The letter continues in this fashion:
"Following the incident on 23 October 2020, Su contacted me by his lawyer expressed his apology, and he paid $500 for the damage to the property, I wholeheartedly accept his apology.
I honestly believe the incident on 23 October 2020 would never occur if he didn't drink alcohol the day before, and I understand he was under unbearable stress at the time from the failure of our relationship, the tour bus business, and creditors for unpaid debt, and his financial responsibility to his two children from previous relationship.
I would like to take this opportunity to ask the court to give Su an opportunity, he is a very kind person, I saw everyone work with him respect Su as a responsible and helpful colleague, when there is something happened and any of his friends or colleague need help, Su always give them a hand without ask. He has been highly regarded by colleagues, customers and friends. I wish him the best in that endeavour as he may continue the positive contribution that he makes to his two children and our society."
In the final paragraph of the letter, Ms Xie points out that she has no fear of the offender and would like the Apprehend Violence Order which has been put in place to be varied so that she and the offender can talk to each other, and so that he can attend her current residence to move his personal belongings, some of which are still in her dwelling.
It is unusual, to say the least, for a victim to give such a reference to the person who assaulted her.
[2]
The seriousness of the offending
The submissions on behalf of the Crown are in writing and are MFI1. Paragraph [5] of those submissions is this:
"The Crown submits that the three offences committed for sentence contain considerable overlap, all having occurred as one part of course of offending conduct. The Crown submits that each offence falls below the mid-range of objective seriousness, though not at the lowest end."
In [24] of the written submissions on behalf of the offender, which are MFI2, Mr Galluzzo said this:
"It is submitted that on the agreed facts and considering the matters put on behalf of the Offender that it is open to the Court to find that in respect to the charge of Aggravated Break, Enter and Commit Serious Indictable Offence, Intimidation[,] the Offender falls below the mid-range and towards the upper end of the low range of objective seriousness."
In the following paragraph of his submissions, Mr Galluzzo submitted that the assault charges fell below the mid-range and towards the upper end of the low range of objective seriousness.
I have no hesitation at all in acceding to Mr Galluzzo's submissions, supported in effect as they are by the Crown's submissions. The assaults were over a relatively short period of time. There is no suggestion that any person has suffered from any ongoing effect of either assault. Indeed the female victim, Ms Xie, clearly forgives the offender's misbehaviour.
The breaking was purely technical, and what caused the offender to want to see Ms Xie on this evening may well have been because he had not been able to contact her and, as he told the maker of the pre-sentence report, he was concerned for her welfare. What he did not know was that Mr Wang, the female victim's new boyfriend, was present at the flat, and that led to the immediate confrontation that the agreed facts disclose. Ms Xie was injured in the process of trying to separate two warring males, and one can see in the agreed facts primeval warring between two males over a female.
It is quite clear to me these offences, that is the three primary offences, occurred because the offender had taken too much alcohol.
[3]
Antecedents
The offender has been interviewed by Dr Natalia Yee, a psychologist, who has a PhD in psychiatry. I notice that she has written extensively in academic journals with, inter alia, Dr Olav Nielssen, whose expertise in psychiatry and crime is well known to the criminal courts of this State.
Ms Yee took an extensive history from the offender. She tells me that the offender was born in Mohe, which is in the North-East corner of China relatively close to the Russian border in an area known to me as Heilongjiang. The offender grew up as the only child in what he described to Ms Yee as a middle-class family unit. He had a loving and supporting home environment and denied any childhood trauma, abuse, neglect, or exposure to domestic violence between his parents. As he was growing up, discipline was normal and appropriate. He had no difficulties at school either with the school authorities or with his fellow students. Ms Yee's history contains this matter:
"He attended and resided in a sports school since Primary 4 until mid-high school and due to his stellar accomplishments in personal combat sport, he was awarded automatic entry to university. Due to ill health, he was unable to complete high school but was nevertheless able to progress to a private university and completed a business administration degree. In the interview, he proudly reported he was the teacher's pet due to being a top student from Year 3 to Year 10 and was a school representative and winner for personal combat and basketball."
Under the heading "Substance use history" Ms Yee recorded this:
"Mr Su denied history of illicit substance use, asserting in the interview, 'that is my limit'. In terms of alcohol use, he reported that he started drinking at 19 years old and although he initially had poor tolerance for alcohol, drinking was very much part of the work and social culture in China such that he became accustomed to it and was drinking for "150 to 200 days' in a year due to work. He reported, 'actually I did not enjoy drinking and used to hate it' and this was a reason he moved to Australia (to avoid the drinking work culture)."
I had always thought that Australia was the centre of a "drinking work culture" but that may be because I was a member of the legal profession.
Dr Yee's history continues thus:
"He added, 'deep in my heart, I hate drunk people and there was a time I hated myself as when you get drunk, you will [have] nasty behaviour... so now I am paying the price for my habit'. He was insightful that his drinking habit was a problem and would sometimes remind himself to reduce his drinking but 'once you start, you look for more' suggesting a history of alcohol dependence."
When discussing the circumstances of the offence, the offender told Dr Yee that in the day preceding the offence he had consumed between two and three bottles of wine, either red or white, as well as several "longneck" bottles of beer. That is a prodigious amount of alcohol to consume from the close of business on one day, and towards 1.00am on the day on which the offending occurred.
The offender told Dr Yee that he had given up consuming alcohol. In his letter to me he tells me that he has changed ways since the time of the offence because what happened at the time of the offence has changed his life, leaving him afraid and deeply depressed. He also refers to seeking psychological treatment that is reported by Dr Yee, and also he refers to his interview with Dr Yee.
The offender has been seeing the Abbot of a Buddhist monastery in Western Sydney where he now performs volunteer work. The Abbot, the Honourable Ban Ruo Shi, has some experience of Australian culture. He has been a Chaplain at the Concord Hospital and, since 2006, also the Chaplain for those adhering to the Buddhist Faith who are members of the NSW Police. He is also the founder of the monastery which the offender attends and where he performs voluntary work.
The sentencing assessment report surprisingly records that the offender said that his alcohol use had increased in the last two years, but I believe that to be a reference to his alcohol use before the offence rather than up to the present time. I accept that the offender's alcohol use has either ceased or is substantially under control at the current time.
The offender married in China in 2008. As a result of that relationship he has two children, a ten year old son and a seven year old daughter. He came to Australian in 2010 and, although he initially came to Australia alone, I understand that his wife and children joined him here but they separated in 2016. According to the history obtained by Dr Yee, that separation was amicable. Everything points to the offender's having an ongoing amicable relationship with his former wife and having an ongoing supportive relationship with his children with whom he spends every Sunday and each school holiday. According to the Abbot he also brings his children to volunteer activities at the monastery in Western Sydney.
2020 was a trying time for the offender. After moving to Australia he started his own car rental company. He specialised in providing services for tourists from China. The business rapidly expanded. According to Dr Yee's history he took a temporary break between 2014 and 2015 when he went to China for a different business opportunity. When he returned to Australia he re-branded his company. It appears to have been quite successful but was hit hard in early 2020 when the arrival of tourists from China was prohibited because of the outbreak of Covid-19, and with the cessation of international tourism later in 2020 his business collapsed. That is a matter referred to in Ms Xie's letter which I have already quoted.
The offender is now living and working on a 60-acre market garden near Wallacia, growing ginger, asparagus, lettuce, cabbage, spinach and peas. He works on the property seven days a week. I am told from the Bar table, without objection, he earns about $5,000 gross per month in that undertaking.
[4]
Prospects of rehabilitation
Both the sentencing assessment report and Dr Yee tell me that there is low risk of re-offending. The offender is looking to his own rehabilitation by controlling, if not eliminating, his consumption of alcohol, and has been undergoing counselling with Ms Mei-Tze Ling, a psychologist, in Campsie.
In Dr Yee's report of 8 June 2021, Dr Yee recommends that, as Mr Su had previously engaged with Ms Ling for his problem drinking, he might benefit from additional booster or maintenance sessions with her focussing on relapse prevention including recognising early warning signs, triggers, managing alcohol cravings, and consolidation of his coping skills. In addition to that, Dr Yee also recommends that the offender participate in a SMART Recovery Program.
I accept that the prospects of rehabilitation are extremely good because the prospects of re-offending are extremely low.
[5]
Circumstances of aggravation
The Crown points out that there was an aggravating factor, that is, that the offences involving Ms Xie, the offences under s 112(2) of the Crimes Act 1900, and the offence of assaulting her, were committed in her home, and that the offences were committed whilst the offender was on conditional liberty.
The offender has committed two driving offences. Each of them involved alcohol. On 14 September 2013 he drove with the mid-range of prescribed concentration of alcohol in his blood or breath. For that he was given the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999 and was put on a bond to be of good behaviour for 12 months. No doubt the Local Court which imposed that penalty was minded to give the offender the benefit of s 10 because it was not only his first offence, but a conviction may have resulted in jeopardising the offender's work as the provider of hire cars and tourist buses for international travellers.
However, on 28 August 2019 the offender committed a second offence of driving with the mid-range of prescribed concentration of alcohol in his breath or blood. For that offence he was fined $1,500, he was placed on a Community Correction Order ("CCO") for a period of two years, commencing on 13 December 2019 and expiring on 12 December 2021. He was disqualified from driving for six months and was placed on an Alcohol Interlock Program for a period of 12 months. It can be seen that the CCO only expires at the end of this year, and therefore at the time he committed the offences now in question he was bound to be of good behaviour.
The Crown accepts that the offender does not have a significant record of previous convictions, and also accepts that he is a person of prior good character. The Crown also accepts that he has good prospects of rehabilitation, and the Crown accepts that he has shown remorse. Remorse is referred to in a large number of sources in the evidence before me and I need not go any further other than to point out that the offender is remorseful for the hurt done to each victim of this assault, and clearly has reimbursed Ms Xie for the damage that he did to her property when he kicked the wall whilst trying to kick Mr Wang.
One thing I should have stated earlier is this, the Crown pointed out that the offender should be called up for a breach of the CCO imposed for the drink driving offence committed on 28 August 2019. I have decided not to take any action because of the breach. Although alcohol was involved in both offences, a driving offence is very different to an offence under the Crimes Act, offences which could be categorised as offences of violence. Furthermore, if I take the aggravating factor into account to call up the offender at the same time, I would be seen to be doubly punishing him for the current offence.
[6]
Consideration
It is common ground between the parties that the offender pleaded guilty at the earliest available opportunity and is entitled to the statutory discount of 25% of the sentence to be passed upon him for each of the offences for which he currently stands for sentence.
Weighing everything that I have considered, I believe that for the offence against s 112(2) of the Crimes Act 1900 I should commence with a sentence of three years imprisonment. I reduce that by 25% such that it becomes a sentence of two years and three months imprisonment.
For each offence of assault I commence with a head sentence of six months imprisonment. I reduce each by 25% for the plea of guilty. That means that each sentence should be one of four and a half months imprisonment.
The total of those three periods of imprisonment is three years. However, as I have pointed out, and as the Crown concedes, there is substantial overlay. In the circumstances I believe it appropriate that there be an aggregate sentence of two years imprisonment
The question then arises how should that be served? Should it be served by way of full-time custody or should it be served by way of an Intensive Corrections Order ("ICO")? The methodology to be employed has been recently re-stated by the Court of Criminal Appeal in Mandranis v R [2021] NSWCCA 97, in the judgment of Simpson AJA, with whom Garling and N Adams JJ concurred. As this is an aggregate sentence encompassing three offences, an ICO would be available even if the ultimate head sentence arrived at were three years imprisonment. As I said, I have arrived at a sentence of two years imprisonment.
As Simpson AJA set out in [22] of her judgment:
"s 5 [of the Crimes (Sentencing Procedure) Act 1999] precludes the imposition of a sentence of imprisonment unless, after all possible alternatives have been considered, the court is satisfied that no penalty other than imprisonment is appropriate…"
The Court must consider that no penalty other than imprisonment is appropriate. However an ICO is a mode by which a sentence of imprisonment may be served in contra-distinction to Community Corrections Order and Conditional Release Orders, see par [25] of her Honour's reasons. It is not a matter to be considered as an alternative to full-time custody: R v JCA [2000] NSWCCA 498 as explained in R v Zamagias [2002] NSWCCA 17 at [25].
Commencing at [28], Simpson AJA considered the imposition of an ICO. Commencing at [42] her Honour cited s 66 of the Crimes (Sentencing Procedure) Act 1999 which refers to community safety being the paramount consideration when a sentencing court is deciding whether to make an ICO. Her Honour then sets out in considerable detail the learning concerning this area of the law. Insofar as there be disagreement on the authorities, her Honour referred to the approach taken by Beech-Jones J (as his Honour then was) in Casella v R [2019] NSWCCA 201 at [108]. Her Honour went on to agree with Harrison J that s 66(1) subordinates, but does not exclude, other considerations in making an ICO to community safety. In other words, although community safety is paramount, one must not therefore disregard other considerations in making an ICO.
Here I have no doubt that the community safety would not be in any way adversely affected by the offender serving his sentence by way of Intensive Correction in the community. It would have the added advantage of having the offender working full-time on his farm, maintaining his contact with his ex-wife, and in particular his children, and probably with Ms Xie, maintaining his volunteer work at the Buddhist Monastery, maintaining his resolve to live a healthy and profitable life, and to stay away from alcohol. His attempts at rehabilitation, and his self-resolve, will be adversely affected by his being incarcerated full-time. In the circumstances I intend to direct that the sentence of imprisonment be served by way of Intensive Correction in the community.
[7]
Firearms Act offences
The other matters to which I must turn my mind are the offences under the Firearms Act 1996. The offences cannot be ignored. The safe keeping of firearms and the safe keeping of ammunition are there to protect the community to ensure that those not entitled to have the firearms and/or the ammunition do not acquire them, or that if they do acquire the firearm they might not acquire the ammunition and vice-versa.
Pistols are weapons which are often used in crimes of violence and in crimes which many people believe are not crimes of violence but carry the risk of violence, for example an armed robbery, or other offences in which there is the threat of use of a firearm. The offender must realise that the Court cannot overlook serious breaches of the firearms legislation. In respect of each offence, I intend to impose a fine.
[8]
Sentences
Yifei Su, for the offence contrary to s 112(2) of the Crimes Act 1900 and for each of the assault upon Wenting Xie and the assault upon Ce Wang, I sentence you to imprisonment for a term of two years, commencing today, 13 October 2021, to be served by way of Intensive Correction in the community. The terms of the order are:
1. you must not commit any offence;
2. you must submit to supervision by a Community Corrections Officer;
3. you must participate in rehabilitation/treatment program as directed by Community Corrections, and comply with the treatment plan proposed by Dr Natalia Yee in her report of 8 June 2021;
4. you must abstain from alcohol;
5. you are to report to a Community Corrections Officer at Penrith by telephone within seven days.
That is an aggregate sentence, I make the following indicative sentences:
1. For sequence 7, the offence against s 112(2) of the Crimes Act 1900, a head sentence of two years and three months, with a non-parole period of one year and six months.
2. For the assault upon Wenting Xie a sentence of four and a half months imprisonment.
3. For the assault upon Ce Wang a term of four and a half months imprisonment.
For sequence 4, the offence against the Firearms Act 1996, s 39(1)(a) I impose a fine of $1,000. For the sequence 5 offence, the offence against the Firearms Act 1996, s 41(1) I impose a further fine of $1,000.
Any further order sought, Mr Rixon?
RIXON: No, your Honour.
HIS HONOUR: Any further orders sought, Mr Galluzzo?
GALLUZZO: No, your Honour.
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Decision last updated: 26 May 2022