District Court New South Wales Medium Neutral Citation: R v Peifeng Yu [2016] NSWDC 257 Date of orders: 18 January 2016 Decision date: 18 January 2016 Jurisdiction: Criminal Before: Tupman DCJ Decision: See orders [44]-[50] Catchwords: CRIMINAL LAW – sentence – guilty pleas – intentionally choking with recklessness, assault oabh, intimidate with intention to cause fear of physical harm – ss 37, 59 Crimes Act 1900 – s 13 Crimes (Domestic and Personal Violence) Act 2007 – breach ADVO related offence – domestic violence – general deterrence to address high level of domestic violence – limited insight, remorse and contrition – breach offence was 63 calls to victim from prison – comments about need for Corrective Services to supervise and prevent these calls – criticism that lawyers sent letter from offender written in gaol directly to the victim, not through DPP Legislation Cited: Crimes Act 1900 ss 37(1), 59 Crimes (Domestic and Personal Violence) Act 2007 s 13(1) Criminal Procedure Act 1986 s 166 Category: Sentence Parties: Regina (Crown) Mr Peifeng Yu (Offender) Representation: Counsel: Mr Tembe (Crown) Mr Chan (Offender) File Number(s): 2015/00023568 and 2015/00171344 Publication restriction: Nil Judgment 1. HER HONOUR: The offender is before me for sentence following his pleas of guilty in the Local Court to offences of domestic violence, all occurring in Auburn on 25 January 2015, specifically they are the following: 1. Sequence 4. A charge of intimidating Nifei He with the intention of causing her to fear physical or mental harm. That is an offence contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 which carries a maximum penalty of 5 years imprisonment. 2. Sequence 5. A charge of assaulting Ms He and causing her actual bodily harm. 3. Sequence 7. A further charge of assaulting Ms He and causing her actual bodily harm. 1. Each of these two offences is contrary to s 59 of the Crimes Act 1900 and carries a maximum penalty of 5 years imprisonment. 2. All of these first three offences are capable of being dealt with in the Local Court. 4. Sequence 6. A charge of intentionally choking Ms He with recklessness. That is an offence contrary to s 37(1) of the Crimes Act 1900 which carries a maximum penalty of 10 years imprisonment. 1. The offender asks when sentencing him for this offence I take into account a further charge of assault occasioning actual bodily harm which occurred on the same day. 2. After sentencing him, or as will be clear at the same time of sentencing him for these matters, I am also required to sentence him for a related offence referred to this Court pursuant to s 166 of the Criminal Procedure Act 1986. That is an offence of contravening a restriction in an apprehended domestic violence order between 1 February and 25 April 2015 at Silverwater. 3. The maximum penalty for that offence is 2 years imprisonment. 4. There are agreed facts before the Court. The relevant facts are that the offender and Ms He had been in a de facto relationship since they met in China in 2006. They are both from China and met there as teenagers. They moved to Australia together in 2007 and continued to live together. They had two children, both boys, one now aged seven and the other four. The family was living in premises at Auburn at the time of the offences. The two children had bunk beds in the same room as the offender and Ms He. 5. About 1am on Sunday 25 January 2015, Ms He was in the bedroom on her mobile phone, apparently engaged on a social media app chatting with another person. This was a male friend. Both children were in the room. They were also apparently awake at 1am playing on their iPads. The offender came into the room and asked to borrow her phone. She declined. He took the phone out of her hands and walked out of the room. She followed him downstairs to the living room. He asked where his iPad was and she told him that one of the boys had it upstairs. He went upstairs and took the iPad from his son. She followed him. She asked for her phone back so she could put it on the charger. He gave it to her and they both lay down on the bed. Her phone then vibrated indicating that a message had come in. The offender wanted to know who had sent the message and asked for the phone. I accept that this was because he was jealous of the person who he thought she was in contact with. She refused and he snatched the phone out of her hand and tried to unlock it. He asked for the pin but she declined. He threatened her and said "Don't make me upset. If you make me upset I'm going to hurt you. Please unlock the phone, I'm not going to do anything". The victim declined. 6. He then went to slap her on the left side of her face but she put her hand up so he slapped the back of her hand twice in a quick hard motion. The children were present and could see what was happening and started to cry. One of them yelled out for them to stop fighting. The victim started crying and the offender sat on the bed next to her. He held the mobile phone in front of her face with his left hand and said "Unlock the phone". He grabbed her left upper thigh with his right hand and squeezed her leg extremely hard causing her pain. She started to scream for him to stop. After about 10 seconds he let go of her left thigh and grabbed her right thigh and squeezed it really tightly causing pain. She also screamed out for him to stop. These are the facts for the Form 1 offence of assault occasioning actual bodily harm which I must take into account when sentencing for the choking offence. She suffered bruises to both of her thighs as a result of these assaults. This is a relatively serious offence, not a minimal version of this offence, and must be taken into account in a meaningful way when sentencing for the choking offence. 7. The offender then said "Okay if you don't want to give me the pin I will find out the pin". He walked out of the bedroom and then returned a few seconds later. He took off his belt and said "I'm so angry. I hurt you but it's not my fault you made me upset". He then whipped her across the lower back twice with the belt. She curled up in a ball to try to protect herself. He asked for the pin again and threatened to break the phone if she did not give it to him. She unlocked the phone and he took it and read the messages between her and her friend. He became extremely angry because he did not like that male friend and had forbidden the victim to speak with him. He then left the room and swore at her and then walked back in again. He picked up another black belt from the floor which had a silver buckle. The victim curled up again to protect herself. He then whipped her across the arms and lower back leaving buckle indentations across her back and arms. He then left the bedroom and was yelling as he walked down to the lower level of the unit. The children witnessed all of this and were upset. The victim checked on them and then went downstairs to get her phone back. These are the facts involving his use of the belts and are the first in time of the assault occasioning actual bodily harm offences. 8. This is a serious offence. He used a belt to beat her, in fact two belts, and did so in front of their children. It was a humiliating and degrading assault, treating her like some people might mistreat a domestic animal. She was defenceless and the only reason he did this is because he had some misplaced jealousy about a person she was talking to on the phone. It is clearly another offence committed in a domestic situation. She suffered more than minimal injuries, including welt marks across her back extending across her shoulders and bruising down her back with belt buckle marks on her skin. These were thus quite heavy blows. This offence is at least at the mid-range in terms of objective seriousness. 9. After these events the victim went downstairs and asked for her phone back. The offender refused. He walked into the living area where there was a portable hot plate on which there was a container of boiling water. He said, "If you don't go back to the bedroom I will pour boiling water on you". He grabbed the pot of water off the stove and she thought he was going to pour it on her so she lowered her head. He walked towards the victim. There was some dispute about this but I have already made a ruling in relation to these facts. I accept that whilst holding onto the pot with one hand he grabbed her left hand with his other hand and forced it into the boiling water. He left her hand in place for one to two seconds before releasing it. She screamed out in pain because it felt like her hand was on fire. He said "Shut up or you'll make the neighbours wake and the police will come". She continued to scream in pain and then he grabbed her right hand and forced it into the same pot of boiling water. He left it there for between five and six seconds. She screamed again. He then put the pot of water down and covered her mouth so that she could not be heard. She started to feel dizzy from the pain and sat down on the sofa. She complained to him about the pain. 10. Shortly afterwards he went to the fridge and retrieved some ice in a bowl. He put her hand inside the ice which caused more pain. She started to cry again. He covered her mouth with his hands and asked her to stop crying or the police would come. He ultimately gave her some pain relief medication which she took and went to bed. 11. These are the facts relevant to the second assault occasioning actual bodily harm offence. It is not only equally serious but more so given the nature of the assaults and the level of pain that she suffered. It is something almost akin to a form of torture. The victim suffered burns to both her hands particularly her right hand, with blistering. She suffered extreme pain when these assaults occurred. Fortunately she has had no permanent disability as a result of the injuries, having been left now with just some discolouration which is fading but no other physical disability. Again this offence was committed in a domestic situation and whilst not in the immediate presence of the children, on the facts, in a room just downstairs from where they were and could no doubt hear their mother screaming in pain. This is again at least in the mid-range in terms of objective seriousness if not more so. 12. The victim woke up at 6am that morning because of the pain in her hands. She went downstairs and asked for her phone back. He gave it to her and she went upstairs so she could call a girlfriend to cancel arrangements she had that day. The offender then came into the bedroom and took the phone from her again and there was another argument. He slapped her in the back of the head with his hand. She yelled out for help to try and attract the neighbours. He then grabbed her face, placed one had around her mouth and the other around the front of her neck and applied pressure to her throat. He squeezed her neck hard. She felt she could not breathe. She closed her eyes and let her body drop so that he would let go. He did release his hold but said "You can die, but not now, the police will catch me". He also said "Did you hear about that lady killed in the car park at Auburn? You know why, because she is a bitch that went off with another man. Today I had control, I just hurt you bad but if I don't have control I will use a knife and kill you". He then left and went back downstairs. 13. These are the facts for the remaining two offences of choking and intimidation. They are clearly enough very serious offences. The choking is aggravated also by the fact that it was committed in a domestic situation and also occurred in the same premises where there were young children who on the facts were probably still in their beds in the same room at the time the offence occurred. The offence however occurred for a very short period of time. There was no loss of consciousness, but recklessness on his part in the strangulation. The intimidation is serious because it occurred at the same time as the actual choking but again these two offences are of fairly short duration. They are below the mid-range in terms of seriousness, but nonetheless extremely serious offences. 14. The victim was able to find another phone and call 000. Police arrived and could see her injuries. They arrested the offender and took him into custody. The offender made some admissions to police, but not as to the full extent of the assaults and it seems clear from the psychologist's report that even today, despite the fact that he has pleaded guilty to all of the offences, he does not in fact accept his guilt in relation to some of them. 15. The police photographed the victim's injuries and those photographs are tendered. They support the victim's version of the assaults on her by the offender. Fortunately, the victim has recovered physically from these injuries. I accept from her victim impact statement however that she continues to be fearful when meeting new people and has difficulty in trusting people. Whilst there are no physical consequences of these offences on her, they have had very large social consequences. She has had to return to work full-time to support her two children, as she is now a single mother. She is also concerned about the effect on her children, not only of the offences, but also because they are now without a father, and is frightened that she will become the subject of gossip within her community if the facts of these offences become known. As will also become clear, when I deal with the related matter, she has also had some pressure put on her by others to withdraw the charges against the offender and calls too from the offender from gaol, apparently to apologise for committing the offences, but on numerous occasions, which almost certainly have increased the level of pressure she feels in the circumstances. These are all serious consequences to her and her children as a result of these offences. 16. As I have said, these are all very serious offences. In fact, it seems to me that they are much more serious than the maximum penalty of five years would indicate, as to the two assault occasioning actual bodily harm offences. They are committed in a domestic situation. The burning offence in particular involves quite brutal violence and in any event one involves whipping with belts and the other, as I have said, forcing her hands into boiling water. 17. The first group of offences was committed in front of the children and there can be no doubt that the children were able to hear their mother's screaming when her hands were forced into boiling water. They were committed purely and simply it seems to me because of some jealousy that the offender felt because his partner was talking to someone on the phone. There must be a very significant element of general deterrence reflected in these sentences. 18. There is an obscenely high level of domestic violence in our community at present. The statistics indicate that one woman a week dies and many more are injured as a result of episodes of domestic violence. Added to this are the countless children who become secondary victims of this violence, when they become witness to episodes of violence which, as is well known to this Court, can have lifelong adverse impacts on them. There is no excuse for violence between domestic partners. There is no excuse for violence by men against women. Sentences have to convey the message that such serious violence as occurred here will lead to significant gaol terms. 19. The offender has been in custody since his arrest so for almost a year. He pleaded guilty at the first available opportunity in the Local Court and is entitled to a discount for the utilitarian value of that plea. It is a significant utilitarian value, very much so because the victim is not being required to come to court to give evidence in trial proceedings and the need for a trial has been avoided. 20. He is now 24 and will turn 25 in April this year. As I said he came to live in Australia with the victim in 2007 and their two children have been born here. They came apparently to study but he was not a good student and does not have proficient English. He worked in the construction industry for some time, although there is no evidence that he was in fact working at the time of these offences. The victim had been a good student and was able to start the HSC here. She was apparently working at the time of the offence. It seems that neither of them has any other family in Australia although the offender has a supportive relationship with his mother who remains living in China. 21. There is a psychological report before the Court tendered by the offender. In his meetings with the psychiatrist, he asserted that he committed these offences in circumstances where he had started to become jealous of the victim from early 2014. He admits that he had started to check her phone for texts and messages and had installed an app on her phone to track her movements. I accept more probably than not that he started to use the drug known as ice for a few months before the offences, but apart from the history given by him to the psychiatrist, there is no other evidence in relation to his drug use. He told the psychiatrist that before he hit the victim with the belts, that is the subject matter of the first assault occasioning actual bodily harm, the victim had said some negative things to him and in his own words, "she said words that did not show respect, the minimum respect for any decent person, so anyone who hears this how could they keep calm". He said he felt very angry. He claims that he then went downstairs and used ice because he had used ice in the past to calm himself down. 22. Whilst I accept that he was using ice at around the time of the offence I do not accept that there is any evidence as such from which I could accept that during the course of these offences he used ice because of the consciousness that he was losing control and a desire to calm himself down. There is just no evidence to support that assertion, merely an assertion made to a psychologist and there is nothing in the agreed facts to support that assertion. 23. Furthermore, there are assertions by him in the psychologist's report that are inconsistent with the pleas of guilty including his denial to the psychiatrist that he ever tried to choke the victim. Clearly he admits to doing so by his pleas of guilty entered in this Court. In those circumstances, those assertions to the psychiatrist do not amount to evidence. In any event, by the time these later events occurred, he had already lost control, had slapped her hand, pinched her thighs and whipped her with a belt. His anger was already escalating and leading to increased violence. His behaviour, in my view, is consistent with a build-up of anger throughout the night, culminating in the choking. 24. However, whilst his behaviour was escalating in seriousness, he was not acting like a person who had completely lost control. In fact he told the victim that he was in control but that she should be fearful of a future occasion because if he did not have control of himself then he would use a knife and kill her. That is the subject matter of the intimidation charge. The fact that he may have been under the influence of ice at the time is not a matter I am entitled to take into account any way as mitigating the seriousness of the offences. 25. The offender has expressed remorse and contrition to the psychiatrist. It seems to me that this is limited. He has only limited insight into the seriousness of his offending behaviour. That much is clear from the fact that he tried to contact her, sometimes successfully, sometimes not, more than 60 times from gaol over the next three months. He appears to assume, from the content of the psychiatrist's report, that their relationship will simply recommence on his release from custody, without any thought being given to her wishes. There is no evidence before me that the victim wishes to resume their relationship, although I accept that she is concerned about the impact on her sons of limited or no contact with their father. 26. His prospects of rehabilitation are difficult to assess for a number of reasons. One is the limited insight to which I have referred. The other is that his future is unknown in terms of resumption of the relationship or even whether he will be permitted to remain in Australia. He no longer uses drugs I accept so that improves his prospects of rehabilitation. However, he has admitted to having anger problems over a long period. He will need some time on parole to address these issues to ensure that his rehabilitation is addressed. If Ms He does not want the relationship to resume he will find that difficult to accept and will require close supervision and referral to appropriate authorities to ensure that he does not revert to drug use and violence. 27. He will, in any event, almost certainly seek and have the right to ongoing contact with his children, which is a matter which will require some supervision in order to ensure he does not re-offend. 28. He comes to court with no prior convictions and he is entitled to have that taken into account in his favour. He would appear to have some work available to him in the community and there is a positive reference from that person, which I take into account. 29. I will now deal with the facts in relation to the related offence of breaching the ADVO. Once he was charged with the offences before me, police applied for an ADVO which was granted. There were numerous interim orders in place. One of those interim orders was enforceable until 15 July 2015. Amongst the conditions of that order was that the offender must not approach or contact the victim by any means whatsoever, except through his legal representatives or as agreed in writing or as permitted by an order or direction under the Family Law Act 1975 as to counselling, conciliation or mediation. 30. As I said, he went into custody on 25 January 2015. Between 1 and 7 February the victim received a phone call on her mobile from an unknown number. That was a woman who claimed to be the sister of a fellow inmate of the offender who said "Your husband said to go visit him in gaol". Again between 15 and 18 February she received a call from an unknown number. It was an elderly lady claiming to be from the church in Lidcombe saying that she visited him in gaol and asked her to give him another chance. She received a further call from that lady a few days after the call but told her she was unable to talk and ended the call. Again between 16 and 25 February she received a phone call on her mobile phone from a woman who said she was the girlfriend of an inmate and that "Your husband has asked when you will visit again". She received further calls from the same number between 16 and 25 February but either ignored or rejected the calls. She then received a text on 25 February 2015 written in Chinese which was from the same number saying your husband needs you to go and see him quickly, he has some urgent matters to search for you. She also received a number of video calls from a Chinese social media chat app from the offender's mother and sister over a number of days asking her to visit in gaol and to withdraw the charges before the Court. 31. All calls made by inmates in New South Wales prisons are logged and the Court is aware that prisoners have a series of numbers they are entitled to contact. Between 25 February and 25 April 2015 the accused made a total of 63 calls to the victim's phone number, 33 were not connected and 30 were. He made no threats to her nor requests to withdraw charges and I accept from a statement made by the victim that when he contacted her the content of the conversation was how sorry he felt. 32. He has also sent a letter to her through his lawyers. In my view, whilst this might not have been strictly outside the conditions of the ADVO, it was extremely inappropriate for his lawyers to have sent a letter directly to the victim from him in gaol, no matter the content. It is a course which in my view should never happen again. Such letters routinely are provided to the DPP to be passed onto victims and ought not be sent by lawyers directly to victims in cases such as this. 33. In any event, there were 30 phone calls made from within the gaol. It seems to me entirely inappropriate that Corrective Services New South Wales permit prisoners to telephone the victims of their crime from gaol in any event, but certainly when there is in place an ADVO preventing contact. It is most unfortunate that this occurred. It continues to occur in New South Wales prisons. This is not the first time I have seen this happen in matters before me. It is about time Corrective Services corrected this situation. They in fact permitted this prisoner, on 63 occasions, to breach an ADVO. That is simply not acceptable and not good enough. 34. It is a serious breach of the ADVO, but fortunately on none of the occasions on which he contacted her, did he actually threaten her, but on 30 occasions over a three month period, he spoke to her. That can only have increased the pressure she felt, added to the other calls made which at least she regarded as having been made on his behalf and in which, from time to time, she was being asked to contact him and on other occasions she was being asked to withdraw the charges against him. 35. Only a term of imprisonment would deal with the seriousness of this breach ADVO in the circumstances. Clearly enough only terms of imprisonment would deal with the seriousness of the substantive offences before me. The most serious of the offences is the choking charge because of the maximum penalty but in fact it seems to me the facts of the assault occasioning actual bodily harm offences, particularly that involved in the burns to her hands, are more serious. Each of the offences must have a separate sentence, but there must be in my view considerable concurrency to reflect total criminality. Whilst they are discreet offences, they occurred more or less at the same time. Whilst complete concurrency would not be appropriate, there should be considerable partial accumulation. 36. For the reckless choking there is a Form 1 offence to take into account. It is, as I have said, not an insignificant incident of assault occasioning actual bodily harm. It should be taken into account in a meaningful way. I have concluded for that offence taking into account the Form 1 matter there should be an overall term of imprisonment of two years. 37. For the intimidation offence it should have been overall 12 months but reduced to nine months in the circumstances. It should be totally concurrent with the choking offence because of the way in which each of them was committed more or less at the same time. 38. For the assault occasioning actual bodily harm offences it seems to me, taking into account the pleas of guilty, that terms of imprisonment of 12 months for each are appropriate. If these offences were totally accumulated that would be four years overall which is excessive in the circumstances. In my view, the total criminality should give rise to a sentence of three years. There are special circumstances namely that it is his first time in gaol and the fact that he will undertake his prison term a little more harshly because of his language difficulties. The non-parole period overall in this case in my view should be two years. 39. For the breach ADVO, in the circumstances, it seems to me that a fixed term of imprisonment of three months is called for. I will sentence that matter first in time, backdating the term of imprisonment to the date he went into custody. There will be a small partial accumulation of that sentence with the other sentences. Those sentences will start two months into that fixed term. 40. For those reasons then I make the following formal orders: 41. For the s 166 matter related offence, breach ADVO, he is convicted and sentenced to a fixed term of imprisonment of 3 months commencing 25 January 2015 expiring 24 April 2015. 42. For sequence 5, assault occasioning actual bodily harm, he is sentenced to a fixed term of imprisonment of 12 months commencing 25 March 2015, expiring 24 March 2016. 43. For sequence 7, assault occasioning actual bodily harm, he is sentenced to a fixed term of imprisonment of 12 months commencing 25 September 2015, expiring 24 September 2016. 44. For the choking offence, sequence 6, he is sentenced to a non-parole period of 12 months, commencing 25 March 2016, expiring 24 March 2017 with parole thereafter of 12 months, commencing 25 March 2017, expiring 24 March 2018, giving rise to an overall term of imprisonment of two years commencing 25 March 2016, expiring 24 March 2018. I direct that he be released to parole at the expiration of the non-parole period. 45. I indicate for that offence I have taken into account the Form 1 offence. 46. For the intimidate offence, sequence 4, he is sentenced to fixed term of imprisonment of nine months commencing 25 March 2016, expiring 24 March December 2016. 47. I decline to fix non-parole periods for the fixed terms as they will be part of an overall non-parole period. Can someone just check those dates please. "TEMBE: They look correct from my perspective your Honour. HER HONOUR: I note there is an ADVO protecting the victim in place from the Local Court until October 2017. Anything further?" ADJOURNED ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 October 2016