District Court New South Wales Medium Neutral Citation: Li v R [2016] NSWDC 275 Hearing dates: 5 February 2016 Date of orders: 05 February 2016 Decision date: 05 February 2016 Jurisdiction: Criminal Before: Neilson DCJ Decision: Appeal dismissed Catchwords: CRIMINAL LAW – Severity appeal – Intentionally damage motor vehicle – Following parking dispute, the Appellant "keyed" the victim's motor vehicle causing $3,806 damage – Appellant denied offence during ERISP – Found guilty after hearing – Compensation paid following order of Local Court – No evidence of remorse – Appellant a Chinese immigrant and permanent resident – No objective evidence supporting Appellant's fear of a conviction interfering with visa status nor her working with children Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Road Transport (General) Act 2005 Cases Cited: Hoffenberg v The District Court of New South Wales [2010] NSWCA 142 R v Mauger [2012] NSWCCA 51 Category: Principal judgment Parties: Xiaotang Li (Appellant) Director of Public Prosecutions (NSW) (Respondent) Representation: Mr D Petrushnko (Appellant) Solicitor for the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2015/132349 Publication restriction: No Decision under appeal Court or tribunal: Hornsby Local Court Jurisdiction: Criminal Date of Decision: 2 November 2015 Before: Viney LCM File Number(s): 2015/132349 Judgment 1. HIS HONOUR: This is an appeal against severity of a sentence passed by her Honour Ms Viney, sitting in the Local Court at Hornsby on 2 November 2015. 2. The appellant had been charged with an offence contrary to s 195(1)(a) of the Crimes Act 1900. The formal charge was that on 9 April 2015 at Chatswood she did intentionally or recklessly destroy property, namely a motor vehicle, registered number NN22LL, the property of Lei Gao. Her Honour imposed a fine of $800 and ordered the appellant to pay compensation of $3,806. That compensation has in fact been paid by the appellant to the Registrar and the Registrar has forwarded it to the victim, Mr Gao, who has acknowledged receipt of the full amount of compensation. The facts of the matter are disturbing. Mr Gao drove his vehicle into the Westfield Chatswood car park at 11.50am on 9 April 2015. That was proven by the tender of a parking ticket that had been issued by the proprietor of the car park to Mr Gao. Mr Gao was driving a bright blue Ford Falcon XR6 Sedan. It would appear that the appellant had already entered the same car park driving a grey Ford Focus hatchback, registered number AQ73LC. A dispute arose between Mr Gao and the appellant, Mrs Li. The police facts before me appear to have been largely based on a statement taken by the police from Mr Gao. The police facts continue thus: "A dispute arose over a parking space. Mr Gao parked his vehicle in one space. The appellant alighted from her vehicle and approached Mr Gao. She knocked on the driver's side window of his vehicle and said words to the effect of, 'Why did you take my spot? It's my spot". Mr Gao remained in his vehicle but replied to the appellant thus: "Because you were flashing your left-hand indicator waiting for another person to leave and then you suddenly saw the people leaving on this side. You can't just do whatever you want and take a different spot because they are leaving earlier than the spot you were already waiting for". The appellant said, "I've been waiting for her for a really long time and you can't just take my spot". According to what the appellant told police when she was initially interviewed Mr Gao said to her, "I don't care". According to the appellant Mr Gao gave her "the finger" meaning I assume that he made a rude gesture with either his index or long finger. 1. I do not know what Mr Gao said about the appellant's allegation. In any event it is clear that the appellant returned to her motor vehicle and Mr Gao alighted from his vehicle and headed towards the shopping centre. Mr Gao believed that the appellant was staring at him and he became nervous, concerned that the appellant might harm his car. He recorded the time, 11.57am, and the registration number of the appellant's vehicle on his telephone and then entered the shopping centre. Documentary evidence before the Local Court indicated that Mr Gao obtained a receipt from a shop within the shopping centre indicating a payment of $200 made at 12.02pm on that same day. Video footage available also indicated that Mr Gao entered the store in question at 11.51am and left the store at 12.02pm the same minute within which he made payment to the shopkeeper. Mr Gao then returned to his vehicle. 2. As he was returning to his vehicle he saw the appellant walking down the offside of his vehicle from its rear to its front holding something in her left hand. Mr Gao believed that the appellant was scratching the stainless steel part of her key along the offside of his vehicle. He yelled out to the appellant, "What are you doing?" And according to Mr Gao the appellant ran away from the entry into the shopping centre from which Mr Gao was entering the car park. 3. Mr Gao inspected his vehicle. He saw a deep scratch down to metal which went from the middle of the rear offside passenger door to the middle of the front offside door. He then inspected the nearside of the vehicle and found another deep scratch down to metal on the middle nearside rear passenger to the back quarter bumper bar. 4. Mr Gao made attempts to find the appellant but was unsuccessful. He contacted the police. Using the registration number that he had recorded on his telephone the police were able to identify the owner of the registered vehicle and were then able to deduce that the person who may have been driving the vehicle was the wife of the registered owner. There became no dispute about that. Police inspected Mr Gao's vehicle and noted large deep scratches on both the nearside and the offside of the vehicle. Photographs of the damage were put before the Local Court. Constable Claire Taylor of the Chatswood Police believed the scratches were fresh because of fine dust and paint flecks still remaining around the scratches. CCTV footage from the car park also shows that the car did not bear those scratches at the time that it was driven into the car park by Mr Gao. 5. The police did not attempt to interview the appellant without the assistance of a Mandarin interpreter. An interview was conducted with the appellant and her husband on Friday 10 April 2015. However, on 9 April the appellant had briefly spoken with the police who asked her whether they could inspect her car key. The statement of Constable Taylor says this: "The accused handed me her car key and I tapped it onto a white bit of paper, dark flecks fell onto the piece of paper. Sergeant Craig Wotherspoon was present when I did this and saw the flecks. As the accused did not speak English that well I did not want to ask further questions without organising an interpreter." On 10 April 2015, the police delivered a statutory demand to the appellant's husband under the Road Transport (General) Act 2005 s173 and he admitted that his wife, the appellant, was the driver of his motor vehicle at about 12.05pm on 9 April 2015. 1. There was a formal record-of-interview conducted with the appellant which was electronically recorded. The ERISP was in evidence, I assume, in the Local Court as it has been placed in evidence before me. The appellant admitted interaction with the owner of the other vehicle, Mr Gao, and complained about his "giving me the finger" and of how rude Mr Gao was towards her. However, when she was asked whether she scratched his car with her key there was no invoking her right against self-incrimination but rather an outright denial, that denial was maintained in the interview. It is relevant, in my view, to consider that because it goes to a question of remorse and contrition. 2. The appellant was given a court attendance notice which appears to have been first returnable at Hornsby Local Court on 10 June 2015. The appellant entered a plea of not guilty on 24 June 2015. The matter was eventually set down for hearing on 2 November 2015 when the learned magistrate found the appellant guilty and imposed the sentence which the appellant now seeks to have set aside and replaced with an order under s 10 of the Crimes (Sentencing Procedure) Act 1999. In particular, the appellant asks me to make an order under s 10(1)(b) and requiring her to enter into a bond to be of good behaviour for what, through her counsel she submits, ought be a lengthy period of time, a period of time greater than one year. 3. At the time of the offence, the offender was 32 years old. She is now 33 years old. She came to Australia sometime in 2010 from China with her husband. As a requirement of her visa she has been studying spoken and written English at TAFE. She has completed certificates I and II and is yet to finish certificate III. When she completes that certificate she wishes to undertake childcare studies in order to be a child carer. Her letter to the court which is exhibit 2 continues thus: "Before coming to Australia, I was a secretary in Huawei and I was working with Yue Yan in Shanghai with children with disabilities for two years. Yue Yan was created after the Sichuan Earthquake in China in 2008. After the earthquake, there was a lot of children with disabilities. Because of my work with children in China, I hope to continue that and hope to one day work in childcare in Australia. To do childcare, I will need to pass my children check and they will look at my criminal history and my conviction. I am really worried. I am also worried that the Department of Immigration may also look into my visa. I am now a permanent resident. I also have a daughter. She is three and a half. I have been trying to finish my [Australian Migrant English Program] and look after her. I promise this will never happen again." The appellant has no criminal history in Australia. There is nothing to suggest that she has any criminal record in her native land and I find it likely that if she had a criminal record in her native land that she would not have been permitted to travel to Australia and obtain permanent residence. The appellant, accordingly, came before the Local Court and comes before this Court as a lady of prior good character. 1. She is endeavouring to better her skills in spoken and written English for which she is to be congratulated. She now has a child who was clearly born in this country and would, by that fact, automatically be an Australian citizen. I am aware that sometimes the Department of Immigration takes into account a person's criminal record in determining whether to admit that person to permanent residence or to citizenship and sometimes the existence of a criminal record is a cause for the Department of Immigration to revoke a visa which might include permanent residence. However, in this Court's experience the crime which would engender or enliven such a decision would be a crime of some moment, in particular, crimes involving serious personal violence or serious fraud. I am completely unaware of any case in which a person has been deported from this country for recklessly damaging property and the extent of the damage being $3,806. Bearing in mind that the appellant has a child who is an Australian citizen, it appears to me highly unlikely that she would be liable to be deported or have her immigration status reassessed by the Department of Immigration and, therefore, it appears to me that her fear about such a change is not well founded. However, it is not up to me to act on my knowledge but rather on the appellant to put before me evidence which would justify my taking into account her subjective fear which does not, to me, appear to be objectively based. 2. In R v Mauger [2012] NSWCCA 51 Harrison J, with whom Beazley JA (as she then was) and McCallum J concurred, said this commencing at [30]: "30. The Crown pointed out that there was authority for the proposition that the existence and terms of entry restrictions imposed by foreign countries on international visitors was not an appropriate matter for judicial notice: United States Surgical Corporation v Hospital Products International [1982] 2 NSWLR 766 at 801. Despite this, and the sparse state of the evidence on the topic, her Honour found that the "consequences of his actions have the capacity to destroy his career and to prevent him from travelling overseas". The Crown contended that the nature or extent of any restrictions upon the respondent's ability to travel to the USA were not supported by the evidence and his ability to travel to other counties was irrelevant and should have been given no, or very little, weight. 31. I agree. It does not seem to me that generalised prognostications about the respondent's ability to travel overseas unsupported by clear evidence could properly be matters that fell within what is contemplated by the words "any other matter that the court thinks proper to consider". It may be different if the sentencing judge were confronted with evidence to suggest that a particular offender faced the loss of his livelihood as the result of travel restrictions upon convicted persons, or that he faced the prosect of the loss of the ability to visit, or return to, family overseas, in which circumstances some definite and enduring hardship or disruption could be demonstrated or confidently predicted. This is not the case here. In my view her Honour's sentencing discretion miscarried to the extent that she proceeded to a conclusion that no conviction should be recorded in a way that was based on such matters." Where the Court's experience suggests that a subjective belief by an appellant is not well grounded, it is incumbent upon the appellant to put before the Court evidence which would support any fear subjectively held that a conviction might interfere with things such as an appellant's status as a resident in this country or visitor to this country, or, indeed, that might interfere with the appellant's ability to obtain employment in the future. 1. I can readily accept that to do child care work the appellant would have to obtain a licence, permit, permission, or the like from a person who was identified by learned counsel for the appellant as the Children's Guardian. I can readily accept that if a person has been found guilty, for example, of a child sexual assault or a crime of violence against a child that it would be extremely improbable that such a person might obtain a licence, permit or permission to engage upon child care work. However, nothing has been put before me to suggest that it would be inimical to the appellant's ability to obtain a child care permit, licence or permission when there had been a conviction recorded for relatively minor criminal damage. When I say "minor damage" I am referring to the extent or the monetary cost of repairing the damage. 2. The appellant has promised the Court that she will not re-offend. I accept that the promise is genuine. However, other than paying the compensation ordered to be paid, the appellant has not shown in any way how this offence might never again occur. In essence, the appellant became angry because she did not get her way as far as the parking place was concerned and she then deliberately damaged the victim's vehicle in protest at not obtaining her own way. This is an act prompted by, in essence, selfishness and showing a complete lack of respect for the rights of others. This was clearly a premeditated crime. 3. A crime contrary to s 195(1)(a) of the Crimes Act was considered in Hoffenberg v The District Court of New South Wales [2010] NSWCA 142. The applicant in that case had pleaded guilty in the Local Court to the charge under s 195(1)(a). He was placed on a bond to be of good behaviour for a period of 12 months. He appealed to this Court. The gravamen of his complaint was not that he had been put on a bond but that he had been convicted. His appeal was dealt with by the Blanch CJ of DC. His Honour dismissed the appellant's appeal. There is no right of appeal from this Court which had heard an appeal from the Local Court in a criminal matter. The only way to go to the Supreme Court from the decision of Blanch CJ was to seek prerogative relief. The applicant in that case sought an order in the nature of certiorari. The applicant was refused. 4. The charge in Hoffenberg's case was recklessly destroying or damaging property, namely a glass shopfront window of premises in Oxford Street, Bondi Junction. The premises were described as "Jews for Jesus". It would appear that the applicant had been charged with other offences but no convictions in that regard were recorded. Initially the applicant had urinated on the door of the premises. He then went away with a co-offender and found a brick and returned with the brick to the shopfront and threw the brick through the window. McClellan CJ at CL said this: "19. The appeal to the District Court was heard by the Chief Judge who declined to accept the applicant's submission. In the course of considering that submission, his Honour gave careful consideration to the circumstances of the offence including whether or not it was motivated by religious intolerance but concluded that it was not. Having excluded that issue his Honour considered the nature of the offending and concluded that the applicant had acted deliberately. His Honour said: 'The question then comes down to one of whether or not it was a deliberate act and how far it was caused by his intoxication. [...] It clearly was a deliberate act. He was urinating on the door. The magistrate has not convicted him in respect of those matters but has convicted him on the one matter. The reason for doing that obviously was because this act was regarded as a deliberate act of vandalism and there is no doubt about the fact that it was because he and his co-offender walked away. When he found the brick they went back there to the very same premises and smashed the window.' 20. His Honour indicated that because the applicant had engaged in a deliberate act of vandalism, in his opinion the offence would normally result in the recording of a conviction. However, prior to arriving at his decision the Chief Judge considered the particular circumstances of the applicant and the consequences that might flow to him if the conviction was maintained, including any impact upon his future university studies in engineering because of his desire to complete his degree in America. His Honour recognised that a conviction would raise difficulties for the applicant in some jurisdictions although it would not be an absolute bar to him completing his degree or obtaining employment. His Honour weighed these matters and concluded that: 'in all those circumstances it would not be appropriate to exercise a discretion'. His Honour dismissed the appeal and confirmed the orders made by the magistrate." After quoting the terms of s 10 his Honour went on to say this: "25. Accordingly, pursuant to s 10(3), his Honour was required to consider "the trivial nature of the offence." When considering that issue his Honour, in my view correctly, considered whether the applicant's actions were deliberate, in the sense of considered, pre-meditated or deliberated upon. His Honour took the view, as he was entitled to do, that a deliberate act of vandalism placed the nature of the offence beyond the trivial and may, depending on all the circumstances, deny an offender the benefit of an order pursuant to s 10." His Honour went on to find that there was no error in the Chief Judge's "deliberative process" and accordingly there was no jurisdictional error, and accordingly the application to the Court of Appeal for certiorari was dismissed. 1. Here there was a confrontation between the appellant and Mr Gao when Mr Gao was still in his vehicle and the appellant was outside. The appellant left Mr Gao's vehicle as did Mr Gao. When he had disappeared the appellant returned to Mr Gao's vehicle and commenced to damage it. This clearly was a premeditated, planned, vengeful act. There was no suggestion of any spontaneous act of retribution in a fit of rage by the appellant, but rather the act of leaving the scene of the complainant's vehicle, returning to her own, and then after the victim had left his vehicle returning to it and damaging it to punish the victim for what the appellant perceived to be an interference with her own entitlement. Factually the same consideration as that arose in the mind of the Chief Judge in Hoffenberg arises in the current case. 2. Unfortunately both road rage and car park rage are increasingly prevalent in the community. Both general deterrence and specific deterrence need to be enforced. 3. Until the time of her conviction the appellant had no remorse and no contrition. It has been submitted on her behalf that she has shown remorse by paying the compensation. That is at least some indication of the change of mind, but the remorse may well be remorse that she has been convicted and found to have acted in a criminal fashion, rather than true remorse, remorse for the damage that she did to Mr Gao's property, and the distress that that damage caused him, and the inconvenience that it subsequently caused him in having to obtain quotes and have his car repaired. In other words I am not persuaded that there is real victim empathy in this case. 4. There is no evidence which supports the appellant's fears of this conviction's interfering with either her ability to remain a resident in this country, or to aspire to become a citizen of this country, nor to support her fear that a conviction may somehow prevent or impede her working with children in the future. 5. I am not persuaded that this is an appropriate case for the exercise of the Court's discretion under s 10. Accordingly the appeal is dismissed. ********** 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: 31 October 2016