R v Zhu [2011] VSC 470

2 You have prior convictions from two court appearances being, firstly, at the County Court at Melbourne on 16 December 2005 a total of 15 charges which related to 8 counts of obtaining property by deception: a count of theft, one of destroying property, two counts of possession of a drug of dependence, one count of trafficking in a drug of dependence and unlawful assembly. You received a total effective sentence of two years imprisonment which was ordered to be suspended for a period of three years, which means that you would have still been on a suspended sentence at the time of the commission of this offence. You were further convicted at the Magistrates' Court at Melbourne on 25 January 2006 of possession of property suspected of being the proceeds of crime and sentenced to pay a fine of $500.

3 In relation to this matter, you have been on remand since surrendering yourself to the police on 4 December 2007. It is a period in excess of 1380 days. The delay in this matter being heard was as a result of the criminal matters of Ke Xu having to be heard in the County Court prior to this matter proceeding, to enable him to be called as a witness. Ultimately neither the crown nor the defence called Ke Xu in the trial, and the delay could have been avoided, but this was clearly unknown until the trial actually occurred. The result is that delay has occurred and this is a factor that must be taken into account in your favour when sentencing you for this offence.

4 The circumstances relating to this offending are that you and the deceased man were entirely unknown to each other. Despite this lack of knowledge you became involved with the deceased in the following manner. On the evening of 29 November 2007 Yan Zhuang Yu together with a group of his friends, also of Chinese extraction, went to the Box Hill gardens at the end of Bruce Street in Box Hill having purchased a slab of Heineken beer at a liquor store in Whitehorse Road. There were approximately eight of them. Some beer had been consumed in the carpark next to the 7-Eleven located on the corner of Bruce Street and Whitehorse Road. The friends had gone down to the park, consumed some alcohol and were walking back up the street approaching the 7-Eleven store, they were not armed and they did not appear to be affected by alcohol or by any other substance.

5 Prior to their arrival on the footpath outside the 7-Eleven store you had arrived in the carpark in a white Toyota Camry which was your father's motor vehicle and parked that vehicle facing Bruce Street, next to your friend Sam Toms' black Mitsubishi. You had arranged to meet a female by the name of Fan Fang in the carpark area of the 7-Eleven, and Sam Toms had collected and driven Fan Fang to this carpark. There was another male there that you knew by the name of Travis Manvese, he was around 15 years old and had some mental development issues. Fan Fang and Sam Toms were of a young age like yourself.

6 As the group of eight men walked towards Whitehorse Road, intent on going home, they crossed in front of where you and Fan Fang were sitting in your car and Toms and Manvese were standing by the black Mitsubishi. Two of the people in the group with the deceased, Man Wu and Xin Yang, knew Toms and Manvese by sight, having had dealings with them in the computer shops around the area and having played computer games with them.

7 It is apparent from the evidence at the trial that something was said by both Manvese and one or more members of the deceased's group, with words being said to the effect of "I cut you", and "I cut you back" - or similar. These words were apparently a relatively friendly exchange that had been used between Manvese and members of the group previously and related to various aspects of games they played. Whilst this was occurring the group just continued to walk towards Whitehorse Road.

8 You, still sitting in your car with Fan Fang, became very upset when these words were said and you were heard to say "what the fuck" as you got out of your car and quickly walked towards the group of young men. There was a great deal of dispute as to what occurred, in the way of words from that point on but, I am satisfied to the required standard, that you became loud and aggressive and started yelling to the group "do you know who I am, do you know who I am". One member of that group did respond and say that he didn't know who you were, which seemed to make you even angrier and you told them to fuck off.

9 You left the area of the carpark and came down the slope, to the footpath where the group of young men were. They were in two bunches, one slightly ahead of the other. Once again there is a dispute as to what occurred when you came down to the footpath.

10 There is no doubt that you and Jay Jiang became involved in a scuffle. I do accept, that you had him in a headlock, and that you at some point fell to the ground fighting each other. Clearly Jay Jiang got the better of you in that scuffle or fight, with him ultimately ending up on top of you, at which point, the two of you were separated by your friends. There was an issue as to whether or not, you or Jay Jiang indicated to one another, or generally, that you were going to call friends on the telephone to come and take the fight to another level.

11 I am not able to be satisfied, one way or the other, as to which persons made telephone calls, at which particular stage of the incident. There is no doubt that calls were made, but I cannot be satisfied as to what was said by the parties, and if anything was organised or attempted to be organised, about others coming down to become involved in a fight at the 7-Eleven. I can say however, that your counsel did not run the issue of you acting in self defence, or defensive homicide, but relied only upon the issue of intent, that is, that you did not possess an intent to kill or to cause really serious injury to the deceased man. I am satisfied, to the required standard, that you were not in fear of being killed or seriously injured, at that time or any later time during this episode.

12 During the fight between you and Jay Jiang, Toms was seen to go back to his car, pull something out of the boot, which he held down by his leg, which was a knife. After you were separated from Jay Jiang, you returned to your car, but it is not possible to say whether you obtained the knife at this point or subsequently, but it was shortly after being at the car that you returned to the footpath and you had possession of the knife. You were heard directing questions towards the group of young males, as to whether they wanted to die. Fan Fang tried to calm you down but she was unsuccessful.

13 You then chased after Jay Jiang with the knife and you stabbed him twice, both were superficial wounds to a degree. The first to the chest, the second to the arm, which had clearly been raised in defence. Jiang ran away from you and towards the 7Eleven store and he was seen to enter the store. You turned, raising the knife at members of the group that remained and said "do you want to die".

14 Yan Zhuang Yu was standing nearby at the time you did this and you moved towards him. It was only a short distance and you stabbed him to the left side of the neck, the knife entering at around the area of the collarbone, causing damage to the actual bone and vital internal structures, including the severing of the left brachiocephalic vein, the right carotid artery, the arch of the aorta and the right atrium of the heart. The wound track was some 15 cm into his body and caused very substantial internal bleeding and he died within a very short time. You attempted to stab the deceased a second time and he raised his left arm, clearly defending himself and he sustained a cut to that left arm. He then ran away towards the service station and collapsed after a very short distance, on the concrete apron near to the petrol pumps.

15 The pathologist described the degree of force required to inflict the stab wound to the neck as at least moderately severe, considering that it damaged and took a piece out of the bone on the way through to the cutting of the vital organs. When ambulance officers attended they were unable to save the deceased and he was pronounced dead at 11.55 at Box Hill Hospital. His friend, Jay Jiang, was taken to the Alfred Hospital and treated for the more minor stab wounds that you had inflicted upon him.

16 You went back to your vehicle, parked at the 7-Eleven and left the service station in a very fast manner. At 11.41 pm, which would have been a matter of mere minutes after you had stabbed the deceased man, you rang triple 000 and gave an account of what had occurred at the 7-Eleven store, telling them that a group of Asian males had come past and yelled at one of your friends. You said that you had then gone up to intervene, they had jumped on you, one of them produced a knife and tried to stab you. You told them that you'd grabbed the knife and been cut on the hand as a result. You told the emergency service operator that one of the males had fallen but you didn't know what had happened but you hadn't in fact stabbed him.

17 This call occurred on the way back to your premises and Fan Fang and Sam Toms arrived at a later stage in Toms' car. You were bleeding from a cut finger and as a result of the bleeding Fang and Toms went to a nearby service station to purchase Dettol, cotton buds and cigarettes. Prior to them leaving, you said to them that you hoped that the deceased man didn't die, saying, "I hope he doesn't die".

18 When Fang and Toms returned you went with them in the car and said that you would go to the police. Toms asked why you wanted to go to the police and tried to talk you out of it, which did occur, but during that time and prior to that you had said to him "I should go to the police because it's our word against theirs".

19 After you determined not to go to the police, you rang a person named Ke Xu, who is also known as Wu Lu and arranged to meet him in Little Bourke Street in Melbourne in the company of a friend of his Zhong Ling Tsai known as Andy, his housemate. You indicated on the phone that you had a problem and would be in the city soon and would talk to him when you saw him there. You met up and spoke to Wu Lu briefly and then returned home to Doncaster. Wu Lu asked his housemate Andy to stay away from the home for a few days, and you then went to stay at Wu Lu's house for a few days. In a conversation that you had with Andy at Wu Lu's house in Reservoir, you detailed to him some of the things that occurred on that night. You told him, that one of the boys from the other group started pushing you and that as a result, you got very angry and went back to the car and grabbed a knife, telling him that you always carried a knife with you in the car. Further, you told him that one of the other group tried to calm you down, telling you to put the knife away but that you were angry, and pushed the boy away and that you tried to stab the boy who'd been pushing you, but that you only cut him and that you got the friend of the boy, but failed to get the one you were trying to stab. You also told him that, Wu Lu was trying to get you a false passport to go to China to avoid getting into trouble for the stabbing.

20 In relation to those matters I accept, that you did tell Andy that you intended to stab, and were trying to stab the boy who pushed you, but that you had got his friend instead and only just managed to lightly stab the other one. In respect of the matter of the false passport, I am not prepared to act upon the basis that you had asked Wu Lu to obtain a passport or that it was any idea other than an idea of Wu Lu's.

21 There is no doubt that for some days after the event you were in hiding to avoid having to deal with this matter and having to give an explanation to the police. When you did attend at the police station it was by arrangement in that contact had been made and you attended at a set time at the police station. Consistent with the verdict of the jury, your actions were conscious, voluntary and deliberate. You had at least a desire and an intent to cause really serious injury to the deceased as well as to Jay Jiang.

22 You are not charged and have not been charged before me in relation to Jay Jiang and accordingly you will receive no punishment for your actions directed to him. I make the findings only on the basis that I need to fully find the circumstances of what occurred that evening and accordingly you will be sentenced only for the crime of murder of Yan Zhuang Yu. '

23 You gave evidence on oath during the trial and you indicated to the jury that you had no intention of trying to harm anyone including Jay Jiang or Yan Zhuang Yu, but that you had the knife in your hand and you were just swinging wildly with your fist but not intending to hurt anyone. As I indicated, the jury have rejected that evidence and understandably so. The injury itself was not consistent with someone swinging in a wild and reckless manner as you described and demonstrated.

24 In this case there were two victim impact statements. The first one written by the step-father of the deceased young man, Yan Zhuang Yu, he first met the deceased, who he referred to as Ricky, in June of 2003. He became his step-father and his wife and Ricky came to Australia to live with him. He had to identify Ricky at the morgue, an image that has never left him. As he stated, "Our family's happiness can never be the same again even though three years and more have passed our outings are never the same as when Ricky was with us and we were a family".

25 Ricky's mother Ying Lan Chen, read to the court her victim impact statement which was interpreted. Despite the interpretation, the agony, the sorrow and the unimaginable pain of her loss was clearly discernable. In a clear and articulate manner she described her loss and that of her husband. She said at one point and I quote,

Compare in comparison with the parents of the killer, the murderer, I believe they are feeling as badly as well but they only worry if their child is going to suffer in jail. When they think about their child they can go and see him, they can buy the food that he likes, they can talk to him, but me when I miss my son I can only go to the tomb. I only can see the tombstone, I can only talk to myself. Miserably I put a bunch of flowers in front of the tomb. Please may I ask what kind of feeling this is. Parents go to the burial ground tomb to see their son. This misery is like a dagger that goes through my heart, also this misery is going to accompany the rest of my life.

Three years and nine months have passed and her pain is really summed up in what she said when she said,

I only have this one child. He was only 17 years of age, he didn't say anything, he didn't do anything, the murderer he was so angry within a few minutes when he took his, Ricky's, life. We, mother and son, we were living together as mother and son for the last almost 18 years, he didn't even have an opportunity to speak to me before he went, its really pitiful. The murder cost us this misery, it's never going to be patched up, he took my son's life, he took my happiness for the rest of my life. The murderer's actions was very scary and very heartless.

26 There are no words I can really add to what she said. The pain is obvious, the permanence of the pain is equally obvious, nothing is ever going to make it better. It is often said by those who have lost a loved one in this court that they have been given a life sentence and I understand what they mean by it because they have. Nothing is ever going to bring Ricky back to her. Her one and only child is dead. The horror of it all for her is obvious and what you have done to her and his step-father is unspeakable. You are aware of that and you now understand it. What I wish to make clear to Ms Chen and to Mr Xu is that the sentence that I impose upon you today is a sentence that is about you, it is not an indication of a value placed upon the life of their son Ricky. Ricky's worth cannot be measured in that way. I am bound by Parliament and the law to pass a sentence that takes into account many, many factors - their pain is but one part of it.

27 Ricky was a joy and a pleasure to them both. He brought such happiness into their world. I hope that in time, although the pain will always be there, that they will at some point in the future when they think of Ricky smile at the joy of his memory and the pleasure he brought them rather than the pain that his death has caused them. He deserves and will be, I have no doubt, remembered with love.

28 You expressed in the court your regret and your sorrow for the suffering that you have caused to Ricky's family. In some way your words reflected those of Ricky's mother when you said,

My life is ruined, however I can tell my father that even though I'm in jail and kept away from him at least we can still talk to each other on the phone and see each other on visiting days - this is something you can no longer do with your son and for this I am forever sorry.

29 The circumstances in which we find ourselves in this court do nothing but bring sorrow to every participant. To Ricky's parents, the understandable grief and pain that accompanies his death. To your parents, the understandable pain that your, without doubt, lengthy incarceration will cause them. I look at these circumstances and shake my head in horror at how actions encompassing such a brief period of time can cause such life-changing consequences. The sentence that I impose today is likely to be almost as long as the time you had been alive when you killed Ricky and that is a truly horrific thought. Sentencing you to be imprisoned for a long period of time does not bring back Ricky, nor does it salve the wounds that his parents feel but there is a requirement and a need for it to occur.

30 This community greatly values human life, as it should. It is the highest maximum penalty in this community - that is a maximum penalty for the crime of murder - it is life imprisonment. The sentence for you, of course, must be ameliorated by many other factors, including your age at the time of the offence, your prospects of rehabilitation, the delay in the trial proceeding and accordingly the amount of time this has been hanging over your head, the cooperative manner in which you dealt with the issues in this trial, also your personal circumstances are a factor that I need to take into account.

31 You were born on 17 December 1985 in China. You came to Australia when you were eight years of age. Your mother had left China to live in Australia when you were three. You had remained living in China with your father and your grandparents with your mother returning on a yearly basis. You moved to Australia with your father when you turned eight.

32 Your parents moved in together but there was subsequently a very acrimonious break up between your parents resulting in divorce. You have never lived with your mother from that time, you have spent almost no time in her company, and rarely even speak to her. Your mother came to court for your trial and was present during your plea but you would not, and did not, speak to her on any of those occasions. You maintain that to this day. Your counsel described it as "he's totally identified with the anger that his father feels towards his mother and he just won't see her".[1]

33 Your father obtained work upon you coming to Australia as a plasterer and then ultimately as a carpenter. He bought a house where you and he lived. You attended primary school and you excelled in your studies during your primary years. Your father was described by counsel as being totally dedicated to you and according to the submissions had instilled in you a terrible fear of failure. You sat the entrance exam for Melbourne High School but failed to gain the necessary marks, missing by some 3 per cent. Your father was very concerned about your academic success and there was a great deal of pressure placed upon you to succeed at your studies. You had very good academic success until about Year 10 and at that point you started to lose interest in school, with your results accordingly slipping. You were removed from the state school and your father enrolled you in Carey Baptist Grammar at the beginning of Year 11 and you attended there until you completed Year 12. Your counsel submitted that in respect of that time, you wagged school, played computer games and spent time with your friends. You had a very poor Enter Score at the conclusion of Year 12.

34 You had some time after school finished being relatively idle but ultimately got a job at a call centre. You became a top sales representative at that centre and had been promoted and was leading groups of sales people. You had a desire to start a call centre of your own and you moved on to another call centre to obtain more experience in terms of handling personnel, running different sections of it for the purpose of learning how you would be able to do that yourself. You were working with the sales force and attending work regularly until this offence occurred.

35 At the time of this offending your father had gone to China to receive some medical assistance and was uncontactable by you. It was submitted that in fact this was the reason that you dropped out of contact rather than attempting to flee from the police. I find that it was a combination of factors that led to you hiding in Reservoir, but avoiding the police was one of them. It does not have any impact upon your sentence as it is neither a mitigating or aggravating factor.

36 Your father returned to Australia after you had been arrested and since his return he has not worked at all, reporting to counsel that he is very depressed. He visits you every Wednesday and whilst initially you had a large number of people who visited you, unsurprisingly as time has passed that number has dropped away. You have been on remand in that time and you have availed yourself of any course that is possible for you to have completed. I have those certificates as an exhibit. You have clearly been what could be described as a model prisoner during your time in custody. You have real and substantial prospects of rehabilitation,.

37 What cannot be understood is why you reacted and behaved in this way to a young man who was only 17 who had done you no harm, who you didn't know and who was really just walking past. Your behaviour is inexplicable as well as unforgivable.

38 The community is entirely sick of random violence, unexplained wanton destruction of young lives by the use of a knife. As I said, this is a tragedy of monumental proportions for every single person involved in it. Ricky's mother and father have lost the only child they've ever known, and will not get to see him live and fulfil any of his potential. Your parents have lost you to prison for a significant number of years. Unlike Ricky, you will at some stage return to them, or at least your father. Unprovoked, unexplained anger and rage is why you are here, why you are about to be sentenced for the crime of murder of a young man you didn't know and against whom you had and have no grudge. What a disastrous consequence for everyone of anger.

39 As indicated there are many factors that I have to take into account, your age, your plea of not guilty, which means you are not entitled to the discount that would otherwise be forthcoming for a plea of guilty. It does not increase your sentence in any way but a plea of not guilty means that I cannot reduce your sentence on the basis of your practical aspects of your plea of guilty or the contribution of remorse that that plea may have demonstrated.

40 I do however accept that you are remorseful. You are remorseful for a number of things and particularly that you have taken the life of a young man. I accept that your apology to his parents was in fact genuine you have had a long time to reflect upon your actions and I do find that you are indeed remorseful. But equally you are also remorseful for the position in which you find yourself, which in my view is only natural. You are an intelligent and articulate young man who, if you are determined to achieve something with your life, I find you would be capable of so doing. You have wasted it up till now but I do think that you have real and genuine prospects of rehabilitation and I will take that into account in sentencing.

41 It is also necessary that I take into account your background and personal circumstances, your prior criminal history, which, although not extensive, nor indicative of violence, is indicative of someone who clearly had some sort of drug problem at the time. I have not been addressed in respect of that and can accordingly make no particular finding relating to drugs. During the plea there has been no reference to drug rehabilitation, so I act on the basis that whatever your drug problem was back in 2005 it is something that was no longer a problem at the time of this offending and accordingly the prior convictions you have are not of major consequence.

42 I do also take into account the pain and suffering and long term affects that your conduct has and will have upon the life of Ricky's mother and his step-father to which I have already made reference. I am aware that no sentence I impose will ever bring their son back to them and accordingly no sentence I impose may appear to be appropriate to them. But I do want them to understand that they have been heard and what they said to this court has been taken into account in determining the appropriate punishment.

43 I am also required to impose a just sentence, one that reflects both general and personal deterrence, as both, in my view, have a role to play in respect of the sentencing process in your case, with specific deterrence having a less significant role than general deterrence. Equally I must keep in mind you relative young age at the time of committing the offence. I need to balance all of these considerations in determining the appropriate sentence to be imposed upon you.

44 Accordingly you are convicted and sentenced to be imprisoned for a term of 19 years. I direct that you are to serve a period of 15 years imprisonment before becoming eligible for parole. I declare that you have spent 1,414 (one thousand four hundred and fourteen) days in custody and such be noted in the records of the court.

[1] Page 11 of the plea, 16 September 2011.