Regina v Yang [2002] NSWCCA 464 | Case summary

Tuesday, 5 November 2002 REGINA v Li Ping YANG Judgment 1 SIMPSON J: I agree with Carruthers AJ. 2 CARRUTHERS AJ: This is a Crown appeal dated 20 August 2002 against the sentence pronounced by his Honour Judge Nield at the Parramatta District Court on 25 June 2002, when one Li Ping Yang (the respondent) appeared for sentence on a charge of blackmailing by threatening to publish, contrary to s 100A of the Crimes Act 1900, of which charge she had been convicted. On that date his Honour deferred passing sentence upon the respondent entering into a good behaviour bond for a period of two years pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999. The respondent was ordered to appear and receive sentence for any breach of that bond. No supervision was required. 3 On 7 May 2002 the respondent was arraigned before his Honour Judge Nield and a jury of twelve at the Parramatta District Court upon an indictment containing one count in the following terms: "Li Ping Yang between 1 April and 29 June 2001 at Sydney in the State of New South Wales, with the intent to cause gain, being the payment of $300,000, for the said Li Ping YANG, did make an unwarranted demand, namely that [the complainant] pay her the said sum of money, and did support that demand by an unwarranted threat to publish a video of a medical procedure conducted on her by the said [the complainant]." 4 The maximum penalty for an offence under s 100A of the Crimes Act is imprisonment for ten years. It should be noted, however, that an offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 and it is, accordingly, to be dealt with in a Local Court unless an election is made by the prosecuting authority for trial on indictment: see s 21 of that Act and Schedule 1. The maximum penalty which can be imposed when the matter is dealt with summarily is two years imprisonment. The jury returned with its verdict of guilty on 15 May 2002. 5 The respondent was born in China on 10 May 1964. Accordingly she is presently thirty-eight years of age. Prior to arriving in Australia in about 1995 the respondent lived in China. She is one of three children. She was married in China and she has a son ten years old from that marriage which was dissolved prior to her coming to Australia. Whilst in Australia, she met and married a man, from whom she is currently estranged but there is hope of reconciliation. She has stated that her second husband did not accept her son and the conflict forced her to send her son back to China, where he is being cared for by her parents. 6 She is an exceptionally talented artist who was invited to exhibit her work in Australia in 1995. She accepted this invitation, and other than for short vacations, has not returned to China since that time. She informed her Probation and Parole officer, Miss Diane Strauss that she has a bachelor's degree in visual arts, and there is no question that she was, on 30 October 2001, the beneficiary of a provisional offer by the University of New south Wales to undertake a masters degree course in fine arts. Somewhat strangely, it may be thought, she does not have a good grasp of the English language, and she required an interpreter at the trial and she has one with her at the hearing of this appeal. 7 On 13 August 1999 she attended the surgery of the complainant, a general practitioner, complaining of a gynaecological problem. Between that date and 30 April 2001 she consulted the complainant on sixty-one occasions. 8 It was common ground at the trial that on five of those occasions the complainant engaged in various forms of sexual activity with the respondent. On 30 April 2001 the respondent covertly videotaped the sexual activity in which the doctor engaged on that occasion. 9 The respondent subsequently contacted the complainant and informed him of the tape. It emerged that she was prepared to return it to him in exchange for money rather than disclose his conduct. The complainant reported the matter to police who monitored a number of telephone conversations between the complainant and the respondent. The complainant arranged to meet the respondent at a bank using the pretence that he would pay her the sum of $300,000, which according to the Crown case she had demanded in consideration for her not reporting his conduct to the appropriate medical authorities. 10 Insofar as the objective circumstances are concerned, his Honour made it perfectly clear in his remarks on sentence that he acknowledged the serious nature of offences of blackmail, because, inter alia, of the reluctance with which the victims of blackmail complain to the police. 11 His Honour expressed some difficulty in understanding why the respondent did not do anything about complaining about the complainant's conduct until after the fifth incident of inappropriate conduct, and after she commenced to record what the complainant had done to her. 12 His Honour rejected the respondent's statement that her motivation was one to punish the complainant for what he had done to her. His Honour said, that having read the transcripts of the intercepted telephone conversations, it was clear beyond argument that the complainant was prevailed upon to agree to pay $300,000 to the respondent, so that the tape recording of his inappropriate sexual acts upon her would not be disclosed. 13 His Honour was of the view that the respondent had not shown contrition for her conduct. However, because of the prior unblemished character and reputation of the respondent, his Honour concluded that she was unlikely to commit another criminal offence. 14 A key passage, for the purposes of this appeal, is that relating to what his Honour referred to as the concurrent jurisdiction of the Local Court. In that regard his Honour said: "As I have said already, the Local Court in certain circumstances has concurrent jurisdiction with this Court. The fact that that Court has concurrent jurisdiction with this Court entitles the offender to some discount in sentence." 15 With respect I think his Honour was putting the situation a little too high. It is now well established that the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, is a relevant consideration in the sentencing discretion reserved to the sentencing Judge: see R v Crombie (1999) NSWCCA 297 at par 15, and cases there cited. 16 However, as is pointed out (at par 16) in Crombie none of the decisions referred to therein go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and subjective criminality of the offender, it may (and I emphasize "may") properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. 17 As this Court pointed out in R v Lyons [2000] NSWCCA 337, the Director's decision to proceed with the matter in the District Court will usually reflect the seriousness of the specific offence under consideration and whether a two year maximum in the Local Court provides adequate sentencing discretion. 18 Before this Court the Crown argued that his Honour clearly gave such excessive weight to the fact that the matter could have been dealt with in the (Local Court, had the Director not elected otherwise) that the respondent was treated with such a degree of leniency as to render the ultimate sentence inadequate. 19 It is not in the least surprising that the Director elected that this matter, because of its seriousness, was to proceed in the District Court and thus become subject to the greater maximum penalty. It is not therefore a case, in my respectful view, in which the element of concurrent jurisdiction should play other than a relatively minor part in the exercise of the overall sentencing discretion available to his Honour. 20 As to general deterrence, his Honour said this: "Deterrence cannot be overlooked. General deterrence is important even if personal deterrence is not important. Others must be deterred from doing what the offender has done. General deterrence cannot be undervalued or ignored." 21 The Crown contends, however, that whilst recognising that general deterrence cannot be undervalued or ignored, his Honour failed to impose a penalty that reflected that observation. 22 This takes one to his Honour's observation with regard to the submission that the respondent's express motivation for committing the offence was to punish the complainant for what he had done to her. His Honour rejected that submission and impliedly declared, if not expressly, that it was a classic case of blackmail which involved a degree of planning and forethought. 23 His Honour did find that the complainant was the instigator of "what occurred" and therefore "carries greater culpability". However, the Crown argues, in this respect, the complainant's impropriety carries no weight in the assessment of the respondent's criminality. 24 Because blackmail is a rarely prosecuted offence little assistance can be gained from the Judicial Commission statistics with regard to those offences. 25 There were particularly strong subjective circumstances revealed by the evidence before his Honour. 26 Primarily they are to be found in the Probation and Parole Service pre-sentence report dated 19 June 2002 of Miss Diane Strauss. She refers to the respondent's assertion that her family has been plagued by physical ailments and mental illness. Her parents are said to be both sickly and frail, and her young sister is a diagnosed schizophrenic who has been institutionalised in a Chinese psychiatric facility for over ten years. 27 At the time of that report the respondent was studying English and fine arts at TAFE on a full time basis. 28 Miss Strauss referred to a "psychiatric report" which assessed the respondent as suffering from major depression and to be a high suicidal risk. 29 To Miss Strauss the respondent presented as emotionally vulnerable and at a high risk of self harm. 30 Of importance, it should be noted that Miss Strauss expressed the following view: "If the Court should place Ms Yang on a bond, it is considered that she may be assisted by supervision with this Service. However, her communication difficulties may make such an order complicated, as she would be required to report with an interpreter. Supervision would focus on trying to link Ms Yang up to the necessary trans-cultural support services she may benefit from in order to assist her to adapt to the Australian lifestyle and access the support she needs. It would also serve to monitor the counselling that she is presently receiving from the Trans-cultural Mental Health Centre." 31 Ms Yang was assessed as unsuitable for a periodic detention order due to her "mental health status". She was, however, assessed as suitable for a community service order. 32 The "psychiatric report" to which Miss Strauss referred is a report of the Trans-cultural Mental Health Centre under the hand of Mr Wilson Wong (Clinical Psychologist) dated 8 June 2002. Specifically the respondent had been referred to that Centre by Dr Garrity, psychiatrist. Dr Garrity thought that there were some unclear symptoms of psychosis, which it was said were hard to determine due to the language barrier. 33 The respondent reported to Mr Wong she had been feeling depressed for about eight years before she came to Australia. This started at the time of her sister's "breakdown" as well as her own relationship problem with her first husband. She had been struggling with many family problems. She asserted that she had overdosed once when she was in China. 34 The observations which Mr Wong made were that the respondent was suffering from a long standing major depression of many years duration, with a strong family history of psychiatric illness. She was confused and ignorant of the legal proceedings and felt unsafe in the legal system. I quote the following sentences verbatim: "The fear that she had become a lesser form of paranoia, due to she could not comprehend and restructure her own self value and justice. She has a high suicidal risk." 35 Mr Wong recommended that the respondent continue treatment of a major depressive episode with the Manly Crisis Team. The respondent agreed to have counselling from a female Mandarin speaking counsellor with that organisation. 36 The submissions by counsel before his Honour were relatively brief. Counsel for the respondent submitted that a bond would be an appropriate way in which to deal with the respondent. 37 Interestingly, the point was made that counsel for the Crown Prosecutor did not in her relatively brief submissions submit that a bond was inappropriate. This is a matter upon which counsel for the respondent relies heavily in this Court. However, the Crown Prosecutor did emphasise before his Honour that at no stage has the respondent ever accepted that she had committed an offence and has never shown remorse. 38 Further, the Crown Prosecutor submitted that it was for the Court to show that persons who committed the subject crime should be dealt with in a manner that would demonstrate to the community "that this type of crime will not be tolerated". 39 Counsel for the respondent before this Court emphasised that the asserted delay in this matter was relevant to the exercise by this Court of its discretion. Thus the Crown did not file a notice of appeal until 20 August 2002, nearly two months after the respondent was sentenced. It is now some four months since the sentence was imposed and the impact of double jeopardy would be severe given the subjective circumstances of the respondent. 40 The Court has been provided this morning with copies of a report dated 31 October 2002 by Dr Joanna Garrity, Consultant Psychiatrist of Dee Why. Dr Power for the Crown, with his customary fairness, took no objection to this additional material being put before this Court on the issue whether manifest inadequacy had been demonstrated. 41 Dr Garrity has been treating the respondent since 5 April 2002 and in that time she has seen her on twelve occasions, reviewing her every two to four weeks. 42 It is not necessary to relate the full detail of this helpful report. However, it establishes beyond question that the respondent has suffered for some considerable time from a deep and persistent depression. She has been intensively treated by Dr Garrity with anti depressants of various kinds in an attempt to elevate her mood. 43 Dr Garrity expressed the view that the trial and the uncertainty consequential upon the Crown appeal have exacerbated the depression. It is in this context that, although the delay of four months would, in a normal case, not be by any means considered to be a considerable delay between sentence and a hearing in this Court, it has, in my view, an added consequence in this particular case. 44 Dr Garrity concludes: "There is no doubt in my mind that Ms Yang is suffering from a mental illness, namely a Major Depressive Disorder, Recurrent (according to the Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, published by the American psychiatric Association). She satisfies all the criteria for this diagnosis, namely: depressed mood for most of the day, nearly every day, markedly diminished interest and pleasure in most activities, insomnia, a decrease in appetite, fatigue, diminished ability to concentrate, feelings of worthlessness and excessive guilt and recurrent suicidal thoughts. In my dealings with Ms Yang I have been repeatedly concerned about her mental state and safety and have sought the help of other agencies (such as the Transcultural Mental Health Centre and the Community Mental Health Centres at Manly and Darlinghurst) to provide her with the necessary additional care. I have also been concerned about her limited supports, which, in combination with her depressive illness and the highly stressful recent events, make her vulnerable to self harm. I believe that, if Ms Yang were imprisoned, she would be at a high risk of suicide." 45 Bearing in mind the serious nature of the offence which the respondent committed and giving full weight to the subjective circumstances including her prior good character, it is necessary to conclude that a full time custodial sentence was called for. The resolution of this matter by the imposition of a recognisance was, if I may respectfully say so, manifestly inadequate. 46 However, that said, the question arises whether, bearing in mind the evidence now before this Court, it should dismiss the appeal in the exercise of its residual discretion. In view of the fragile state of the respondent's health, which may in some way have contributed to the commission of the subject offence, I am of the view that this is a case which calls for the exercise of the Court's residual discretion. I do not agree that a community service order is an appropriate alternative. 47 Justice must be tempered with mercy, and, accordingly I would propose that the appeal be dismissed. 48 MATHEWS AJ: I also agree. **********

Regina v Yang

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Cases Cited (2)

Cited By (4)