R v Zhong [2001] VSC 524

Supreme Court of Victoria|2001-11-01|Before: Flatman J

Zhan Yu Zhong, the jury empanelled upon your trial has found you guilty of the count of incitement to murder. Although the circumstances surrounding the commission of the offence have been canvassed in detail at the trial, it is appropriate to address them in brief form at this stage.

Your personal history is relevant to the circumstances of the offence. You met your defacto wife, Rong Qua Maio, in 1987, through an advertisement in a Chinese women's magazine. You travelled from Beijing to the Yunnan Province, a distance of some 3,000 kilometres, to meet her. She was 21 years of age and was working as a teacher in a secondary school. A relationship developed between you.

In April of 1990, you migrated to Australia and corresponded with her and continued sending her letters until 1994. When you were granted permanent residency in Australia you sought to sponsor her to come out and join you. A visa was granted to Rong Miao in 1995.

The plans were delayed in September of 1995 because of a dispute between you involving your gambling problem. You returned alone to Australia but continued to write to Rong Maio, imploring her to join you. Finally, in November 1995, Rong Maio left China and arrived in Australia to make a life for herself with you in Melbourne.

The relationship soon ran into difficulty in December of 1995 when Rong Maio discovered that she was pregnant. This had not been planned and caused her significant emotional problems. For your part, you were insistent that she should keep the child, but there were other problems developing in the relationship.

By May of 1996 the relationship had deteriorated to the extent that the police were involved and Rong Maio went to a women's refuge. An Intervention Order was taken out at the Heidelberg Magistrates' Court.

Your daughter was born on 4 September 1996 and you were present at that birth. You resumed co-habitation with Rong Maio in October of 1996, but again this did not work out and you separated in November of that year. You continued being involved with the care of your daughter, this being of some assistance to Rong Maio who was at that time attending university. Further altercations occurred however and Miss Maio ultimately enforced the Intervention Order.

Formal access orders were then made in the Family Court in about August of 1997, giving you permission to have two hours' supervised access to your daughter each Saturday morning. You exercised your access rights, although you did not exercise those rights for approximately one year. You then sought, in late 1999, unsupervised access and those orders were made in January 2000. This was to be in the form of weekly access for eight weeks and then overnight access. There was further conflict as to whether Rong Maio would co-operate with this access and you took the matter back to court. You had counselling at the Family Court with Miss Maio prior to 2 August 2000, and she had agreed to let your daughter go overnight to your house. In fact, the 24 hour access had commenced and was continuing up until 22 August 2000 when you were arrested.

Miss Maio gave evidence that your attitude towards her was much more co-operative in the months leading up to your arrest and from her perspective, she thought that the relationship was looking more optimistic in terms of two people being responsible for a child and sharing that responsibility in a civil way.

You received several convictions between 1997 and 1999 arising out of the breakdown of your relationship and your ongoing gambling habit. Whilst in one sense these are relevant prior convictions, they can also be characterised as part of the circumstances giving rise to this offence.

At the same time you were negotiating access arrangements with Rong Maio and attending the Family Court, you came into contact with an undercover police officer posing as a hit man. A series of meetings took place between you and the undercover operative between 23 March 2000 and 3 August 2000. The substance of the Crown case was contained in five meetings which took place between those dates and which were tape recorded and transcribed.

In broad terms, they disclosed that you wanted your wife killed because you felt that you had no choice. You demonstrated hostility towards her because you believed she had cost you a great deal of money, she had framed you, put you before the courts, and turned your daughter against you.

You said you had been looking at killing her for two to three years and had been put in touch with some Italians two and a half years earlier who might do the job. The price for killing your wife was $10,000. During the course of the meetings you discussed various methods for her disposal. Although your primary concern was that she disappear without any suspicion falling on you, you did discuss alternative methods, albeit at the request of the undercover operative. These methods included disappearance, suicide with an apology, and the suggestion that a condom obtained from a brothel with foreign semen in it be planted at the scene to give the impression of rape by a stranger.

You also took practical steps to engage the services of the undercover operative. At the second meeting on 6 April 2000, you gave him a casino chip to the value of $1,000. Later, at the third meeting of 5 May 2000, you paid a further $200 cash. You took ineffective steps to raise money by dealing in drugs with another undercover operative who posed as a drug dealer. At that second meeting, you provided information as to the address, routine and movements of Rong Maio which facilitated her identification and the taking of photographs.

It is fair to say that the voice mail message of 22 May 2000, followed by the fourth meeting of 24 May 2000 indicated that there was a real question as to whether you wished to proceed with the plan to have your wife killed. Whatever reservations you may have had in May however, your resolve to proceed was made clear in the final meeting of 3 August 2000. At this time, you were looking at alternative ways of raising the money, including again the option of trafficking in drugs and also the possibility of using the undercover operative to extract money from the intended victim's bank account.

Turning to your own circumstances set out in the plea by your Counsel, your early background was a relatively severe one. You suffered economic and social hardship as well as a lack of educational opportunity as a by-product of the cultural revolution in China. That you overcame these difficulties through hard work and self-education is a tribute to your initiative and drive. This drive is demonstrated in your qualifications in chemical engineering, your migration to Australia, and your work history in this country. This determination enabled you to court and persuade Rong Maio to join you in Australia. Unfortunately, the other side of the characteristics of such strong will is that it made it very difficult for you to cope with the breakdown of your relationship.

The history of the conversations I have outlined hardly paints you in any honourable light. There is some strength however in the submission put by Miss Dixon that there was an element of ambivalence on your part. Even in the course of the conversations with the undercover operative, you acknowledged that in one sense what you were doing was quite wrong. Finally, in the last conversation, you expressed surprise that you had joined the ranks of criminals.

I also accept that the history of the relationship discloses a devotion to your daughter and an attempt by you, particularly in the latter stages, to try and establish amicable dealings with your ex-defacto wife. This was reflected in your conversation with the undercover operative at the fourth meeting on 24 May 2000 when you indicated that you were genuinely trying to get back with Rong Maio.

I also accept that there was an element of naivety in your dealings both with this undercover operative and the undercover operative involved in drug trafficking.

Your inability to organise the appropriate finances between March 2000 and August 2000 does raise a question as to whether you would have ever been able to put such a contract into effect. I also think there is strength in the comments made by Mr Gibson on behalf of the Crown that it was obvious that you were in a heightened emotional state throughout much of the period and that you were probably depressed. Your tone of voice in many of the tapes is a sad one.

A witness Shan Bao Ming who knew you in China came to court and gave evidence on your behalf and I am told that there is another friend Kim Zhang from Lake Eildon who is interested in your welfare. Ms Dixon submitted that your involvement in criminal activity had proved disastrous at every stage and that you have had time to reflect on your future. I am told that you have learnt a salutary lesson and will not pose any threat to your wife or others in future.

It seems to me, in the final analysis, that there are three significant issues of sentencing in this case.

First, given that it is an incitement to murder, arising from the breakdown of a domestic relationship, weight has to be given to the element of general deterrence and there is no doubt that an immediate custodial sentence is appropriate. You have placed your wife in an understandable situation of fear for her future, (that being apparent from Ms Maio's Victim Impact Statement). Similarly, in a way not intended at all by you, you have made life more difficult for your daughter. It is totally unacceptable in a civilised community that anyone should be prepared to kill in order to get their own way.

Second, whilst it is true that an incitement to murder, arising out of the breakdown of a domestic relationship, is a very serious offence, there are features of this case that nonetheless suggest that it is not in the high range in terms of an example of incitement to murder. In my view, the circumstances involving the equivocation, naivety, and lack of means available to you, distinguishes this case from more serious examples of incitement to murder.

Third, given the premeditation and hostility displayed in the course of the conversations, together with your interest in purchasing a gun and a silencer, the question of specific deterrence is also an important sentencing consideration. I am urged by Miss Dixon that you have had significant time now to reflect upon the stupidity of retaliation against your wife. Your ventures into crime so far have proved disastrous. Whatever you may feel about his wife's role in your domestic break-up, she could hardly be blamed for your current predicament. I am reminded that there are people in the community presently interested in your welfare and prepared to support you and that you are being encouraged to take a positive view when released from gaol. I hope that the sentence that I impose encourages you to do that. You are presently forty-five years of age. You are intelligent and you have the capacity to get on with your life.

In all the circumstances, I impose a sentence of six years imprisonment and I fix a non-parole period of three and a half years before being eligible for parole. I declare that you have spent 437 days in custody which shall be reckoned as part of your sentence.

I also make the following general orders. Pursuant to s.464ZF(2) of the Crimes Act 1958, I order that Zhan Yu Zhong undergo a forensic procedure for taking of blood and/or saliva samples in accordance with sub-division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for the placement on the data base. Having considered the seriousness of the circumstances of the forensic sample offence, I am satisfied that in all the circumstances the making of the order is justified having regard to the seriousness of the circumstances of the offending warranted in the order, the fact that the order is not opposed and the fact that the granting of the order is in the public interest.

I am required to inform you that, in undergoing a forensic procedure for the taking of a blood or saliva sample, a member of the police force may, if necessary, use reasonable force to enable the procedure to be conducted.

Pursuant to s.33(1) of the Confiscation Act 1997 following the conviction of Zhan Yu Zhong for a forfeiture offence, namely incitement to murder, and upon being satisfied that the property referred to in the Schedule is "tainted property", I order that one Crown Casino Gaming Chip in the amount of $1,000 and cash in the sum of $200 in the denomination of two $100 notes be forfeited to the Minister.

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Judgment (30 paragraphs)

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