DPP v Ji [2023] VCC 2315 (13 December 2023)

Last Updated: 13 December 2023

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION

Revised Not Restricted Suitable for Publication

Case No. CR-22-00976
Indictment No: M11798718

DIRECTOR OF PUBLIC PROSECUTIONS
v
JIANGANG JI

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF TRIAL and PLEA HEARINGS:	19 April to 3 May 2023 (Trial); 2 August 2023 and 11 October 2023 (Plea in mitigation)
DATE OF SENTENCE:	13 December 2023
CASE MAY BE CITED AS:	DPP v Jiangang Ji
MEDIUM NEUTRAL CITATION:	[2023] VCC 2315

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW

Catchwords: Sentence – Pleas of guilty – Aggravated burglary – False imprisonment – Kidnapping (2) – Theft – Trial – found guilty by way of jury verdict – Rape – Sexual assault – Common law assault – Premeditation – Offending motivated by revenge and to cause hurt - Use of a weapon - Conduct prolonged, intense and callous – Adult and child victims of tender age – Impact on victims – Sexual offending degrading and dehumanising - No criminal record – Delay – Standard sentence offence – Category 1 and 2 offences – Serious offender regime

Legislation Cited: Sentencing Act 1991

Cases Cited: R v Verdins [2007] VSCA 102; (2007) 16 VR 269

Sentence: Convicted and sentenced to Total Effective Sentence of 22 years’ imprisonment with a non-parole period of 15 years’ imprisonment – 842 days pre-sentence detention declared as having already been served as part of sentence imposed – s.6AAA declaration – Ancillary orders (Disposal and Forfeiture) - Serious sexual offender declaration

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms K Churchill with Ms L. Gurry (Trial and Plea) Ms L. Gurry (Sentence)	Solicitor for the Office of Public Prosecutions
For the Accused	Ms C. Pezzimenti	Victoria Legal Aid

HER HONOUR:

1. Jiangang Ji, you have pleaded guilty to:
   • one charge of aggravated burglary, which has a maximum penalty of 25 years’ imprisonment;
   • one charge of false imprisonment which has a maximum penalty of 10 years’ imprisonment;
   • two charges of kidnapping – that offence has a maximum penalty of 25 years’ imprisonment; and
   • one charge of theft which has a maximum penalty of 10 years’ imprisonment.
2. Further, on 3 May 2023, you were found guilty by jury verdict of rape which has a maximum penalty of 25 years’ imprisonment, sexual assault which has a maximum penalty of 10 years’ imprisonment, and common law assault which has a maximum penalty of 5 years’ imprisonment.
3. In sentencing you, I must have regard to the maximum penalties as these reflect the seriousness with which Parliament regards the offences.
4. By way of background, I was told that you arrived in Australia on 8 November 2017 on a three-month tourist visa which expired on 8 February 2018. I was told that you are a skilled plasterer and worked during your time in Australia. At one stage, you worked for the first victim’s husband, Mr W. Mr W owned a construction company. He employed you on and off for about 12 months. Some of the works that you completed were at Mr W’s family home, which was the scene of your criminal offending.
5. Mr W is married to Ms A who is the adult victim (‘first victim’/’complainant’) in this offending. Together they have two young children who were aged five and three at the time of the offending. They are the victims of the kidnapping. (I may refer to them as being the second and third victims from time to time).
6. On Monday, 23 August 2021, you drove your Camry sedan from your home in Mitcham to the victims’ address. You parked out the front of a nearby address and stayed in your car for about an hour. Meanwhile, Ms A woke up at around 5.40am and made her husband breakfast. Mr W left for work at about 6.30am.
7. Having recently suffered a miscarriage, Ms A was tired and returned to the master bedroom to sleep. As soon as Mr W left home, you got out of your car and approached the house where you unlawfully gained entry through an unlocked side window. You were in possession of a knife that you had brought with you, and your intent was to assault the occupants of the home. This gives rise to Charge 1, aggravated burglary.
8. You were inside the house for some time before approaching Ms A. You had a drink and took the complainant’s keys for her Mercedes Benz which was parked in the driveway. At about 8.00am, the youngest of the complainant’s children woke up. Ms A was still tired so she put cartoons on to entertain her child so she could sleep a little longer. She felt the presence of someone looking at her and opened her eyes, but could only see the top of a hooded jumper and a person who appeared to be hiding.
9. Initially drowsy, having just been woken up and believing the figure was her husband, she called out saying that she was awake and to come out. However, there was no response, so she got out of her bed and made her way out of the master bedroom. She was confronted by you, holding a knife out towards her. You pushed her to the ground and quickly put her hands behind her back. You used tape to secure her hands behind her back, then bound her legs together and taped her mouth shut. This conduct gives rise to Charge 2, false imprisonment.
10. Ms A’s children saw what was happening to their mother and began to cry. Ms A tried to comfort her children, saying it would be okay. You then used plastic tape and covered the complainant’s face from the neck up, so she was not able to see. Ms A begged you not to touch her children and offered you money. You said “you give me money”, which was the only time she heard you speak in English. She heard you on the phone. You appeared to be speaking through an interpreter service. She saw the light of the phone near her face and heard a pre-recorded voice say, “I want a million dollars - if you tell your husband to prepare a million dollars the children will be okay”. She replied “okay”.
11. Ms A managed to break the tape off her feet and you quickly taped them back up. You bound the hands of the children with tape and covered their eyes, as they continued to cry and you carried them one by one to the complainant’s car. Ms A could no longer hear her son crying and realised he had been taken away.
12. Ms A asked her daughter where her son was and her daughter replied “mummy” before she too was taken away by you. You put the children in the boot of the Mercedes Benz which was owned by the first victim and returned to the house, with the children remaining in the boot of the car. This conduct in relation to the children gives rise to Charges 3 and 4 - kidnapping.
13. You returned to the house where Ms A remained bound and gagged. You were still in possession of the knife. You went to the bedroom and picked Ms A up, putting her on the bed. You pulled down her pants and underwear and pulled her shirt up. She was not wearing a bra. Ms A tried to resist by bringing her legs closer together, saying in English “no, don’t do that”. At this time, Ms A was lying on the edge of the bed with her legs up. Whilst in this position, you tried to penetrate Ms A’s vagina with your penis on two occasions but you failed to do so as your penis was not sufficiently erect.
14. On the third attempt, you were able to insert your penis into her vagina, moving your penis in and out of her vagina. This conduct gives rise to Charge 5 – rape.
15. This episode, or part of it was filmed by you on your phone. I have viewed the footage on a number of occasions, and it is apparent that you were sexually penetrating the victim at the time that you were filming, in my view.
16. While you were trying to penetrate Ms A’s vagina with your penis for the third time, you squeezed the complainant’s breasts “hard”. This gives rise to Charge 6, sexual assault.
17. At some point, you took a photo of Ms A, depicting her naked body.
18. As a result of the penetration, Ms A felt a bit of pain because she had recent surgery. She was not able to say whether you had ejaculated but said that it was one to three minutes between you entering her vagina with your penis and withdrawing it.
19. At some stage during this offending, you held a knife to the complainant’s abdomen. When she felt this, she was frightened and stopped resisting as she was afraid that you would hurt her and her children.
20. You slid the knife across the complainant’s abdomen. Ms A did not feel pain at the time. However, later that day, doctors discovered a superficial laceration to her abdomen, measuring 11.5 centimetres. Your conduct in this regard gives rise to Charge 7, common law assault.
21. After committing the offences which were the subject of the trial, you pulled up your pants and fastened your belt, then pulled up Ms A’s pants and pulled her shirt back down.
22. Ms A rubbed her eyes on the quilt on the bed and could see something through the blindfold. She asked if anyone was still there but could not hear anything. She then dropped herself from the bed onto the floor, she said, making a big noise. She then became aware that you had left her house with her children in her car.
23. Still in her bindings and gags, Ms A then went outside to get the attention of members of the public and eventually was able to do so. It was evident that she was in a highly distressed state, primarily concerned about her children’s wellbeing and whereabouts. Police subsequently attended the scene and commenced an investigation.
24. Later that day, Ms A underwent a forensic medical examination and that examination noted the laceration to her abdomen previously referred to. She had also suffered a small genital injury as a result of your offending.
25. Before leaving the house to raise alarm, Ms A had rolled off the bed and onto the floor where she stayed for a moment, crawling into the hallway trying to stand up, but kept falling down. She bumped into walls and crawled until she could see the front door, which was open. She jumped towards the door to close it in order to feel safe, then jumped towards the kitchen where she sat trying to break open the tape that bound her feet together. She managed to free her leg and saw a knife on the kitchen sink. She used her mouth to move the knife and used her hands behind her back to put the knife on the dining table. She tried to use the knife to cut the bindings around her hands, but was unsuccessful.
26. Ms A was panicking and looking around for things to help. She saw that the gate outside was open and that her car was gone. You stole her car, giving rise to Charge 8 - theft.
27. Having ascertained that you had gone for certain, she rushed out the front door searching for help, calling out and pleading for assistance. Eventually, a passer-by called 000, but did not untie the complainant, telling her to wait for the police. Ms A was very distressed and asked another passer-by, a Mr Lim, if he spoke Chinese. When he told her that he did, she said to him in Mandarin, “he took my kids, he took my kids”. She begged this passer-by to call her husband and Mr Lim did so.
28. At some point after this, Mr W received a phone call and a strange voice said, “we need one million”, before hanging up. Mr W then noticed that his wife’s iPhone was on the floor in the house and correctly deduced that you had taken the SIM card from the phone, using it to contact him.
29. After you had driven away from the victim’s home in her car, you returned to your home in Mitcham. You removed the children from the boot of the car and removed their bindings, then put them in a room and locked the door. CCTV footage reveals that at one point in time they were alone in that room for about four hours.
30. Police arrived at the victim’s address as a result of the 000 call by the first passer-by who stopped for the victim. Police observed that the victim’s hands were tied behind her back, and she had tape across her mouth. She was in a distressed state and trying to free herself. She was heard to say, “my baby, my two babies, someone has taken them”. She was photographed by police before being helped to remove the bindings from her hands and face. She gave the registration details of her car. Police identified your Camry from outside a neighbouring property and this was taken to a tow yard and examined. A plastic scabbard for a knife was found in the footwell of the car. Police placed observations on you. At 5.21pm, police observed you walk towards your Camry which was still parked in Springfield Road. You were then seen to retreat and board a bus.
31. You were tracked to your home in Mitcham. At 6.42pm, police observed you walk from the driveway of that address and enter the victim’s stolen car, which was parked in a public carpark nearby. You then drove the car into the driveway of your home address. At about 7.05pm, the Victoria Police Special Operations Group observed you attempting to move the car as it had become bogged. The children were observed to be in the back seat of the car. You were then arrested, and the children were looked after by the police.
32. You were taken to the Melbourne West Police Station by detectives and interviewed with the assistance of a Mandarin interpreter. During the interview, you admitted that you broke into the victims’ home and kidnapped her children.
33. Ms Pezzimenti indicated that she did not take issue with any matter set out in the document provided by the prosecution in relation to the jury verdicts and the factual basis in relation to these.
34. You gave a record of interview where you admitted to some of the offences in line with those that you subsequently pleaded guilty to before the jury panel. However, you denied raping, or sexually assaulting the complainant or injuring her, as she alleged. You told police that you had been treated poorly by the complainant’s husband and committed those offences which you admitted, as revenge. You said that you had treated the children well and that you always intended to return them. When told that seminal fluid had been found on the victim’s bed, having initially denied that anything of a sexual nature had occurred, you said you had undressed the victim and that seeing her in that state caused you to ejaculate into your pants, which you wiped on the bed. You wanted to take photos of the complainant in an undressed state to try to ensure that she and her husband would not go to the police.
35. Mr Ji, your offending is most serious and calls for a punishment which is just in all the relevant circumstances. Your conduct must be strongly denounced. I regard the aggravated burglary, kidnappings, false imprisonment and rape to be very serious examples of each of these offences.
36. The aggravated burglary, false imprisonment and kidnapping were planned and calculated. You waited for Mr W to leave before entering the house, armed with a knife and you also had tape with you at the time for binding the victims. As the learned prosecutor said, you were in the victim’s house for approximately two hours before the intended confrontation with Ms A, having waited for Mr W to leave the house. The kidnapping of the children lasted for about 11 hours. You had plenty of time to terminate your offending, but you failed to do this.
37. You were so calculating that you took Ms A’s sim card with you, enabling you to send that dreadful ransom demand to Mr W with a threat about destroying his children if he did not comply.
38. While I am unable to find beyond reasonable doubt that the rape, sexual assault and common assault were premeditated, you were intent on maximising your revenge against Mr W and engaged in offending against his wife in this context.
39. Even if it is the case that Mr W treated you poorly, this in no way justified you exacting vengeance by criminal offending at all, much less by exacting this by the dreadful offences you committed against his wife and children. They were not the ones that you had the grievances against. They were entirely innocent of any wrongdoing even on your own view of things. Yet, you thought it was justified to behave toward them in this abominable fashion to get back at Mr W.
40. In all, your offending was egregious and abhorrent.
41. It is unclear as to whether you were returning the children to their parents when you were caught by police. You told police that you were, but in view of some of the other things that you told police which were not true in the Record of Interview, I am unable to make a finding about this.
42. As far as what you told police in the record of interview, while you did make some admissions, and provided some co-operation which I have taken into account, it seems to me that you were also trying to give a good account of yourself in circumstances where a number of offences were clearly already known to police. However, you denied raping or sexually assaulting the victim, giving shifting accounts in the course of the record of interview about this aspect, and a further version to Professor McEwan forensic psychologist when you spoke to her in August this year.
43. As the learned prosecutor said, the rape was cruel and dehumanising, committed against a victim who was aware that you had her children. Further, she was helpless to defend herself as you had physically constrained her with gags, bindings and a blindfold. However, a further constraint was her fear that you would harm her children. As the learned prosecutor said, you committed the rape against the complainant in circumstances where she had no knowledge of where her children were at that time. Also, you took intimate images of Ms A, apparently of the view that the humiliating nature of these would prevent she and her husband from going to the police. I do not sentence you on the basis that Ms A knew that you had taken these images at the time you were offending against her, but your conduct in this regard heightens your moral culpability.
44. It is not clear as to whether you wore a condom during the rape; it would appear that you did not ejaculate inside the complainant’s vagina, but some of your seminal fluid was found on the victim’s bed.
45. Ms A and her children were all asleep and therefore, especially vulnerable at the time you entered their house, a place where they were entitled to feel safe. However, you violated this. By your own admission in the record of interview, you used the knife in order to scare the victims into submission; and later you used it to assault Ms A, when she lay helpless on the bed.
46. I also note that the children were very young, and were obviously distressed, yet you saw fit to bind their hands and tape their eyes, and to put them in the boot of a car, which you kept them in whilst you committed further offences against their mother. You then drove with them, unrestrained by any safety harness, in the boot of the car, to your home. This entire ordeal must have been terrifying for the children, not to mention, dangerous.
47. Although you say that the children were well cared for by you at your place, it is to be noted that they were left alone for a period of about four hours without any adult supervision and locked in a room. While you might have given them some meagre comforts, in accordance with what you told police, this does not mitigate the kidnapping offences. Rather, it points to the absence of what would otherwise be an aggravating feature.
48. I take into account the victim impact statement which was prepared by Mr W. He said that since the event, his life had changed a lot; he could not sleep for months and was very stressed. He gave up his job to spend three months with his family. He did not feel safe and terminated all work contracts. He said that the children had struggled to enjoy life and embrace new experiences with the same passion. He said that before your offending, the children were excited to receive visitors. However, now, if anyone knocked at the door, they would go and hide. He said that for a significant period they all slept together because of the impact of the crime upon them. The children were constantly seeking his reassurance that you had been taken away by the police. He said that the children had been truly terrified and that he, Mr W, felt very sorry for his children and his wife. He said that since the offending, his wife had been different and suffered sleepless nights and many nightmares, crying for lengthy periods. He said that his whole life had been impacted by your offending and that now he had to be home before dark or else his family did not feel safe.
49. He said that financially they had also suffered. He said, the family decided to sell the car due to your criminal offending, but did so under value. They also decided to move house, incurring rent and having to pay interest on the mortgage for that house that they had been in at the same time. They decided to move house in a bid to help the children to forget what had happened. He said that he is completely out of work, having terminated all ongoing contracts, and that they lost a lot of savings and have had to borrow money from other family members.
50. He said that your offending had given him and his family devastating, horrible memories that they will never forget. He wanted to thank all members of the police department and government department workers (he did say legal aid, but I am assuming that he may have meant the OPP) thanking them for the help they had given to his family.
51. Ms A, who I found to be a most impressive witness, and a courageous person, did not make a VIS however, it takes no imagination to know that your offending was terrifying and, as her husband says, has had an enduring impact upon her. Further, there was evidence as to her immense distress as observed by witnesses, shortly after the offending had occurred. Certainly, her distress at recounting her ordeal when giving evidence at trial was palpable.
52. In sentencing you I take into account that you have no prior convictions which is a matter in your favour.
53. I take into account your background.
54. You are 38 years old, and you came to Australia in 2017. Before this, you lived in China with your family. Your parents are still alive and are in their 70’s, and you have 2 younger sisters. All of your family live in China. Your father is in poor health.
55. I understand from the report of Ms Jackson psychologist dated 13^th July this year that your father was a rice farmer but that his land was compulsorily acquired by the government, and he was inadequately compensated for it. This left your father in a most distressed state and your family in a poor financial position. According to you, the community engaged in bullying toward your family due to this loss of status.
56. Due to your parents’ financial struggles when you were a teenager, you were unable to finish school, leaving after completing the equivalent of Year 8. You worked hard since this time, trying to help your family make ends meet. When in China, you had worked away from home for significant periods in a bid to provide for your family.
57. You are married and have two children aged 15 and 5. You came to Australia when your wife was pregnant with your second child. You have never physically met your 5 year old.
58. You have expressed concern that by the time that you meet your children once more they will be adults, which is a matter that weighs quite heavily upon you.
59. In China, you had run a number of businesses, mostly in the garment industry, the most recent of which failed when China suffered a financial crisis. I understand that you also lent a good deal of money, but that this money was not repaid.
60. It was in this context of financial hardship that you came to Australia on a three-month tourist visa in 2017, which you overstayed. You came here to work and send money home to help your family. You wanted your children to have opportunities in life that you hadn’t had. You do not appear to have had a plan as to when you would have returned to China.
61. You worked for Mr W for a time but you left as you were unhappy in that employment. You then obtained other work but lost this due to Covid 19 lockdowns. This meant that you also had to move house.
62. I accept that you have a strong work ethic and solid work history.
63. You have no history of drug use. However, upon arriving in Australia, you consumed a limited amount of alcohol most nights. In the week before your offending, you started drinking larger amounts of alcohol to manage your low mood. You said you were drinking a “big glass” at night, apparently referring to a glass of rice wine.
64. I was told that the context of the offending was that you had been employed by Mr W and that you felt harshly treated by him. One of your work colleagues, who also worked for Mr W wrote a character reference in support of you and attesting to this aspect. This was put forward to help explain your mindset in the lead up to the offending rather than any attempt to excuse it.
65. According to Professor McEwan, Senior Clinical and Forensic psychologist, Forensicare, (report dated 18 September 2023) you ruminated about your treatment at the hands of Mr W, but these ruminations went away when you obtained a better job where you were happy. However, the ruminations returned in the context of Covid lockdowns, losing that better job, having to quickly find new accommodation and having no income, without the means to earn any or receive government support due to your illegal status here. Also, returning to China was not an option because of the lockdowns. Ms Pezzimenti referred to the circumstances leading to your offending as ‘a perfect storm’.

Verdins

66. Ms Jackson, psychologist, interviewed you at the Melbourne Assessment Prison with the assistance of a Mandarin-speaking interpreter on two occasions, being 17 and 30 May 2023. Her report is dated 13 July 2023. She had a copy of the charges, a letter of instruction and the trial indictment. Apparently, she did not have the depositions or trial transcript.
67. You told Ms Jackson that you were very depressed before the offending, and you were drinking on a regular basis. You told her that you were isolated with no friends or associates to talk to and you had also suffered a workplace injury which left you unable to work for a number of weeks with no income. You were reliant on very limited savings to support yourself.
68. In terms of your physical health, you told Ms Jackson that you developed abdominal pain, suspected of being an inflamed appendix when you were 24. You were treated in hospital, but your appendix was not removed. In 2018, you were injured after you were hit by a car which caused you to suffer concussion and a lower back injury. You were hospitalised for a number of days, but you did not appear to have any follow-up assistance. You were unable to access any compensation for loss of income through the TAC because you were not able to provide a tax statement and you returned to work prematurely. In 2020, you were treated for a kidney stone and admitted to hospital. You were treated with pain medication and fluids which resolved the problem. In 2021, you had a fall from a ladder which exacerbated your lower back injury which meant that you were unable to work for a number of weeks and “this was a trigger to a mental health deterioration”. (paragraph 12)
69. In terms of your mental health history, Ms Jackson noted that there were initial adjustment problems after you came to Australia. She said that the separation from your family, pressure to find work and support your family, as well as cultural differences and a lack of social supports, were all associated with a decline in your mental health. She said that you recognised a depressed mood within months of your arrival, which was consistent with a persistent depressive disorder. She said that you reported poor concentration, sleep disturbance, fatigue, feelings of hopelessness and low self-esteem and that these symptoms did not resolve, worsening when you started to work with Mr W. You complained to Ms Jackson that Mr W emotionally abused you throughout the time you were employed with him. You detailed the various ways in which this occurred and referred to Mr W threatening you with deportation unless you continued to work with him.
70. Ms Jackson said, “Mr Ji recognised that this history of abuse and his symptoms of depression resulted in some rumination and feelings of victimisation in regard to what he considered was a life of injustices associated with his earlier experiences in China.” (paragraph 14)
71. She went on to say that you reported a rapid deterioration in your psychological symptoms in the weeks prior to the offending and that a back injury had rendered you incapacitated for work, which meant that you struggled to eat more than once a day, were not sleeping and you were worried about your ability to provide for your family, as well as being anxious about the risk of deportation. You told Ms Jackson that you could not think straight and became fixated on all the things that you had to go through in your life, and it was within that context that you started thinking about “getting back at Mr W”.
72. Ms Jackson noted that after your arrest, you became acutely suicidal, attempting to cut your wrist with a plastic knife, and on another occasion, you jumped off a bunk in your cell, hitting your head. You were taken to a suicide watch cell and received some counselling support which helped. She noted that you continued to have some intermittent thoughts of suicide, but you have said you would not go through with this because of what it would do to your family.
73. Ms Jackson was of the view that a history of victimisation had dominated your life and had been associated with negative mental health outcomes, self-blame, and feelings of helplessness.
74. She said that your relationship with Mr W, which was, according to you, characterised by a history of chronic bullying and harassment, led to a significant deterioration of your mental health. She said you were ashamed of your inability to confront your employer and improve your working conditions, feeling a sense of entrapment because of the threats by your employer to have you deported. She said that it was within this background of increased psychological distress in the weeks leading to the charges which led you to become fixated on revenge against Mr W “who represented his history of victimisation”. (paragraph 24)
75. Ms Jackson said that you acknowledged a pre-existing history of depression that was consistent with a persistent depressive disorder that was exacerbated by your treatment in the workplace. She said that prior to and at the time of the offending, you reported a deterioration in your mental health triggered by events that included a workplace back injury which left you unable to work, anxiety about your financial security, and what you considered was a further incidence of cruelty when Mr W had refused to allow you a toilet break on an occasion which had caused you some health problems subsequently.
76. Ms Jackson said:

“This deterioration in Mr Ji’s mental health does suggest that the Court might (my emphasis) consider evidence of impaired mental functioning at the time of the offence(s). ... His thoughts became dominated by his life of injustices and victimisation, culminating in his thoughts of revenge against Mr W that was transferred to harm against his wife and children.” (paragraph 26)

She went on to say:

“His psychiatric vulnerability and the degree of his remorse evident at the time of his arrest and incarceration resulted in two reported episodes of suicide attempts. Mr Ji accepts responsibility for his offences, he states that he remains plagued by regretful thoughts about what he has done on a nightly basis and recognises that the children, their mother ... and Mr W will likely face a lifetime of trauma. When asked if he could have done things differently, Mr Ji said he should have confronted Mr W and tried to resolve the matter himself, but was too ‘weak’.” (paragraph 27)

77. I pause here to observe that you have not taken responsibility for all of your offending and the question of remorse in your case is somewhat complex, as I observed at the plea hearing. I shall return to this aspect a little later on.
78. Ms Jackson said that your risk of reoffending was considered to be low, although I did not understand her to have conducted any formal tests in this regard and she appears to have taken you at your word in relation to remorse and insight, as well as your appreciation as to the longstanding impact of your offences on your victims. Ms Jackson did not appear to factor in that you ran a trial in relation to raping, sexually assaulting and assaulting the first victim when speaking about your ‘evident remorse’.
79. It is concerning that you attempted suicide upon your incarceration, but this does not automatically equate with insightful remorse insofar as the victims go, in my view-rather, a good deal of despair and perhaps shame about your own predicament, was concerned.
80. I have taken Ms Jackson’s report into account in a general way in sentencing you, factoring in its limitations in some respects, as indicated in the course of my references to it.
81. A further report was obtained by the Court, being a Forensicare psychological court report dated 18 September 2023, which was prepared by Professor Troy McEwan, senior clinical and forensic psychologist.

Forensicare Report

82. Professor McEwan noted some inconsistencies in relation to your reports concerning your physical health history and the causes for various problems.
83. You reported to her that you have bladder problems and need to frequently use the toilet, attributing this to the negative effects of an incident in late 2020, when Mr W reportedly would not stop the car during a long drive to enable you to use the toilet. You said you experienced significant pain and discomfort as a result. When it was suggested by Professor McEwan that the bladder problems might well be related to your kidney stone treatment, you were adamant that the cause was some sort of injury from the incident with Mr W. Professor McEwan noted that there were no issues relating to your bladder function mentioned in the J‑Care file.
84. There was also a difference in relation to the cause of your back injury. However, the J-Care file indicated that you had requested pain relief at times for your back since being in prison.
85. Professor McEwan conducted a Static‑99 risk assessment which resulted in a score which fell in the moderate to low range due to the presence of non-sexual offences during the index offending and the fact that you were unrelated to the rape victim. She indicated that:

“The Static‑99R relied purely on historical risk factors which are unchangeable and therefore provided little information to guide judgments about when future sexual offending might be most likely, what contextual individual characteristics might precipitate further sexual offending, and whether these are currently present.”

86. Given the circumstances of your offending, Professor McEwan conducted an assessment using the “Historical Clinical Risk Management-20, Version 3 assessment tool”, which is a set of structured professional judgment guidelines that help to identify risk factors associated with violent behaviour which might be the focus of targeted interventions. The definition of violence includes sexual violence for the purposes of this tool. She noted that the tool had been translated into Mandarin and was recently validated in a mainland Chinese population of offenders with mental disorders.
87. You were assessed as being at relatively lower risk of interpersonal violence over the medium term than other men with a history of violent offending. She said that while there were several risk factors for violence present to a moderate degree, these were largely associated with a single incident of the index offending and would be specifically associated with challenges you would face in prison due to your lack of English.
88. Professor McEwan was of the view that your ̶

“....................personality is characterised by conscientiousness, a strong sense of personal responsibility, and high expectations of himself and others. When his expectations are not met, Mr Ji described a punitive response, with a pattern of self-recrimination and negative self-evaluation when he has failed to live up to his own standards. This punishing response was also evident in his evaluation of others’ actions as inadequate. This clearly applied to Mr W who Mr Ji plainly felt was uncouth, abusive, and not deserving of respect, even prior to the personal animus that developed during 2020.”

89. Professor McEwan said that the combination of an interpreted interview, your cultural background and a lack of detailed collateral information about your personal history meant she was unable to make a confident diagnosis of the presence or absence of personality disorder. However, she said that even with the limited evidence available to her, there was nothing to suggest “the level of enduring impairment in self and interpersonal functioning that would be required for a diagnosis of severe personality disorder.”
90. She said:

“Mr Ji clearly described experiencing a single episode depressive disorder of at least moderate intensity in the month prior to the index offences in late August 2021 (using the diagnostic framework laid out in the International Classification of Diseases 11^th Revision). The onset appears to coincide with the loss of his job and accommodation in July 2021. Mr Ji described an intense period of suicidal ideation, rumination, loss of energy and changes to his eating and increased fatigue which lasted for approximately one month. I must emphasise that I am entirely reliant on Mr Ji’s self-report of his mental state during this period given the absence of collateral information from personal associates. However I note that Mr Ji’s psychiatric assessment on remand is consistent with the presence of symptoms of depression (though this of course is complicated by his being recently imprisoned at that time).”

91. Professor McEwan went on to say that the depressive episode occurred in the context of a preceding period of increased stress, rumination and lowered mood associated with perceived maltreatment by Mr W from mid to late 2020, combined with concern for your family’s wellbeing and being unable to return to your family in China due to Covid‑19 restrictions. She said she had noted that the onset of the depressive episode also coincided with the beginning of the second major period of extended Covid‑19 lockdown in metropolitan Melbourne, which began on 15 July 2021.
92. She said:

“Although there is no evidence that Mr Ji was suffering from a psychotic disorder at the time of his offending or at present, it seems very likely that he held (and continues to hold) an extreme over-valued belief that he was being persecuted by Mr W. Extreme over-valued beliefs are beliefs that may be shared by other members of the same culture (eg, that mistreatment of workers is wrong) but take on such a central and dominant role in a person’s thinking that they influence their behaviour to a pathological degree. Such beliefs usually emerge from pre-existing personality vulnerability and may be provoked by a specific emotionally-laden event. They are associated with an intense emotional commitment and are not amenable to rational challenge. Unlike obsessions, which are experienced as intrusive and unwanted, extreme over-valued beliefs are relished, amplified and defended by the person over time, becoming more resistant to challenge. While undoubtedly pathological, they are not delusions as they are not associated with a complete rupture with reality nor reorganisation of the person’s knowledge of the world in service of the belief. Over-valued beliefs are common in disorders such as anorexia nervosa and are increasingly recognised in the field of grievance–fuelled violence threat assessment, where they are usually observed following a catastrophic and unpredictable act of extreme violence.” (paragraph 62)

93. Professor McEwan went on to say that although you had resented Mr W’s treatment of you before the incident where you say he did not allow you to go to the toilet, you clearly described a change in your mental state after this event. She said:

“Over subsequent weeks and months he mentally elaborated on Mr W’s treatment of him, acknowledging that he linked it with past mistreatment he had experienced at the hands of other employers, and that it occupied much of his time. The importance of what seemed to have been distasteful but not extraordinary verbal insults seems to have been gradually magnified during this period to the point that these experiences have come to be interpreted by Mr Ji as sources of trauma, or ‘scarring’. Although the dominance of the belief on his date-to-day functioning seems to have reduced after he ceased contact with Mr W in early 2021, it quickly re-emerged in mid-July 2021 in the context of the extreme stress of losing his job and housing and deterioration in his mental state.” (paragraph 63)

94. Professor McEwan was of the view that you met the diagnostic criteria for recurrent depressive disorder, current episode mild, based on your persistent low mood, feelings of hopelessness, disturbed sleep and negative self-evaluation. She said that while you reported hearing voices, it appeared that these were intrusive thoughts secondary to your current depressive episode rather than signifying a psychotic event. She said that you were distressed by the symptoms of depression you were experiencing and these impaired your day-to-day functioning to a mild degree. She said that it must be noted that some of the symptoms may be reactive to your current circumstances and may resolve once uncertainty surrounding sentence and prison placement had been clarified. (paragraph 65)
95. In respect of the contribution, if any, of any impairment of mental function to your offending, Professor McEwan said that your ̶

“... behaviour appears to be attributable to an unusual combination of an extremely stressful situation (loss of employment and housing plus Covid‑19 restrictions) and the immediate effects of a mental disorder on his psychological functioning at that time. These proximal issues occurred against a background of a personality style predisposing Mr Ji to being particularly sensitive to others’ perceived poor behaviour and mistreatment of him, and to punishing himself for failing to respond adequately. This pre-existing personality style and the conflicted relationship with Mr W seemed to have contributed to the development of an extreme over-valued belief that Mr W was persecuting him and solely responsible for Mr Ji’s suffering, even after they had ceased all contact. In this context, Mr Ji appears to have concluded that Mr W was to blame for his predicament and so felt justified (and possibly compelled) to take revenge against Mr W. He chose to do so by harming Ms A and the children in the belief that he would somehow be able to escape prosecution.” (paragraph 68)

96. Professor McEwan said that the rape and sexual assault of Ms A could be most usefully understood in the context of a wider grievance rather than an expression of sexual deviance. She said the following:

“However, Mr Ji acknowledged that the rape was also retribution against Mr W for the sexualised verbal abuse to which he subjected Mr Ji. In this sense the sexual assault can be understood as a way of restoring Mr Ji’s damaged esteem by disgracing Mr W’s wife.” (paragraph 69)

97. I pause here to remark that earlier in the report, Professor McEwan noted that you had maintained you were not guilty of raping or sexually assaulting the complainant as was alleged at trial, and I note that you had told her that you were simulating having sex with the complainant, maintaining that you had not raped the complainant, so I do not read the passage to which I have just referred as an admission by you, in the absence of something clearer.
98. Professor McEwan went on to say that in her opinion, the depressive episode that you appear to have been experiencing at the time of the offending played a contributory but not causal role in the offending. She said:

“It is likely that the sudden onset of a moderate to severe depressive episode had the effect of narrowing Mr Ji’s attention to his pre-existing extreme over-valued beliefs about Mr W’s persecution of him. This would have made the belief more overwhelming and reduced Mr Ji’s ability to see other options for resolving his situation. It may have induced intense feelings of worthlessness, which Mr Ji then attributed to his lack of adequate response to Mr W’s perceived persecution. The depressive symptoms likely also made Mr Ji’s situation appear more desperate than it was by inducing feelings of hopelessness and helplessness. (paragraph 70)

It is possible that in the absence of symptoms of depression and their effect on his thinking and emotions, Mr Ji would not have acted on his extreme over-valued belief about Mr W’s persecution of him. Nonetheless, it was clear that he was aware that these acts were wrong and he took steps to try to prevent Ms A and Mr W from identifying him prior to, during and after the offences occurred. Rather than impairing his ability to appreciate the wrongfulness of his actions, or significantly reducing his ability to make rational or reasoned decisions, Mr Ji’s mental state appears to have allowed him to view his chosen course of action as justified and necessary.” (Emphasis mine)

Findings re moral culpability etc.

99. In light of the evidence of Professor McEwan, I accept that at the time of the offending, you were suffering from an impairment of mental function, namely, a moderate to severe depressive episode, in the context of holding extreme over valued beliefs about Mr W, and that such impairment contributed to your ability to make rational and appropriate judgments. However, in view of the other matters to which Professor McEwan referred, such as the impact that such impairment had on your ability to make rational or reasoned decisions, your personality style and ability to reason and act deliberatively in order to protect yourself from being caught and the like, I make a minimal reduction in respect of your moral culpability and the weight that would otherwise attach to just punishment and general deterrence.
100. I note Professor McEwan’s remark that your lack of English also meant that you would be unable to access appropriate mental health care whilst in prison. She was of the view that you needed to engage with a psychologist as your depression was associated with cognitive factors and grief at the loss of your family. I note that, as at the time of the plea hearing, you had not received the assistance of a Mandarin-speaking clinician or an interpreter to assist you with any clinical help and at the time of sentencing you today you have still not received any medical treatment. I express a strong wish that such matters be attended to, as it is not satisfactory for any prisoner to be without such supports whilst in gaol.

Mental health deterioration in custody

While I note that Professor Troy McEwan has said there is the potential for your mental health to deteriorate in all the relevant circumstances, in view of the poor state of your mental health upon entering custody and fluctuations in this regard, I am prepared to make some allowance relating to the potential for your mental health to deteriorate in the future. It is of concern that there was a referral about a year ago from a nurse for you to receive psychological or psychiatric assessment. To date, this apparently has not occurred.

Hardship in custody.

101. Whilst in custody you have and will be rather isolated as you have no family here. You do have some work friends, but it is not apparent as to how much support they will provide while you are in custody. However, you have maintained phone contact with members of your family, with whom you often speak.
102. In all of the relevant circumstances, I make allowance for the fact that time in gaol has been and will be harder for you, due to the following matters:

(a) your relative isolation,

(b) your concerns that you will not see your children until they are adults

(c) your concerns for your parents-in particular, your fear that your father might die before you can see him again.

(d) your symptoms of depression, and

(e) your limited English skills, which will hold you back in terms of engaging with other prisoners and engaging in programs, and perhaps also psychological treatment, as well as medical treatment if needed.

103. I have also factored in your medical history and ailments, although it appears that your medical needs are being managed by pain relief when needed.
104. I also allow for the fact that you have been in custody during the pandemic and that various restrictions have been in place from time to time and may continue at various levels from time to time, which have and will make time in custody more difficult.
105. I have also taken into account that this is your first time in custody.

Pleas of guilty to some offences.

106. In sentencing you for the offences of aggravated burglary, false imprisonment, the two charges of kidnapping and the one charge of theft of a motor vehicle, I allow for a fairly substantial discount for your facilitation of justice in respect of those charges, due to the early stage at which you indicated you would plead guilty to them, having admitted these offences in the record of interview. In pleading guilty to these offences, you saved the community a degree of time and expense, and, to a degree, you saved witnesses the time and trouble of giving evidence about these particular offences. However, although the issues in dispute were narrowed by virtue of your pleas of guilty to the other offences, a number of witnesses, in particular, the complainant, were put to the time and trouble of giving evidence at committal and trial and the community was not spared the time and expense of a trial, albeit that the duration of this would have been a good deal longer if all charges were in dispute. Also, the issues would have meant that witnesses including the first victim, and perhaps other witnesses, would have been put to more time and trouble. I have factored in all of these matters when allowing for an appropriate discount in relation to the offences to which you pleaded guilty at the earliest opportunity.

Remorse

107. Ms Pezzimenti on your behalf submitted that you expressed remorse in relation to the offences to which you pleaded guilty when interviewed by police and you are truly remorseful for that particular offending. I accept that you did express some remorse to police about this, but it seems to me that you also were trying your best to give a good account of yourself, telling police that you cared for the children well. This must be seen against a background of you keeping the children for a significant period, sending a ransom message to Mr W, and leaving the children on their own for four hours, albeit, on your account you gave them food and water and a change of clothing when it was needed. It ought also to be seen against a background of you running a trial in relation to other offences. There is evidence of you feeling sorry for yourself and your own predicament. I note from Professor McEwan’s report that you still entertain an overvalued belief in relation to Mr W, which is also relevant to my assessment of your remorse and other sentencing considerations.

In the end, I allow that you have some remorse in relation to the offences to which you pleaded guilty, however, obviously, you have no remorse in relation to the offences which were the subject of the trial. In this regard, I am mindful of the fact that Ms A, who was either directly or indirectly the victim of the charges to which you pleaded guilty, was the first victim whose credibility and reliability you challenged at trial.

I make it clear that you are not to be punished for running a trial or a contested committal hearing. These are your rights. However, taking these steps is relevant to my assessment of remorse and insight as well as my assessment of the discount you ought to receive in respect of the issue of your facilitation of justice.

Delay

108. I allow for the fact there has been significant delay in this matter, notwithstanding that part of this is due to the fact you pleaded not guilty to some of the offences, which has led to some delay. Again, I make it clear that you are not to be punished for pleading not guilty to these offences, however it partially explains how you have come to have been on remand for such a significant period. However, I allow for the fact that you have had the anxiety of these matters hanging over your head for a significant period, which would have made time in custody harder for you in this respect.

Character references

109. I have taken into account the character references tendered in this matter.
110. One reference was from your wife, Wan Jun who spoke of your devotion to one another and to your family. She said that your oldest child as entering High School and your son is about to start primary school. She said that you have always worked hard to support the family. She also spoke of her shock to hear of your offending insofar as the kidnapping was concerned, as she never thought you would break the law. Concerningly, she said that over the past two years, she has learned from you that you only wanted to get back money owed to you and never intended to break the law!
111. I also received a character reference from your daughter who spoke highly of you, and she spoke of her belief that you must have been in a desperate situation to kidnap the child victims. Like your wife, she expressed concern for the child victims and the hope that they would be alright in the future. In her experience you had always treated children well and caringly.
112. I have also read a reference from Mr Zhisheng Su, who wrote in support of your prior good character. He has known you for four years.
113. While I DO have some concerns as to your character referees’ knowledge of your offending in some respects, I have taken into account their good opinion of you, their support of you and indications that your offending, insofar as they know about it, is out of character.

Prospects of Rehabilitation, Specific Deterrence and Protection of the Community

114. In all the relevant circumstances of your case Mr Ji, I assess your prospects of rehabilitation as being, guardedly, reasonable. I place moderate weight on specific deterrence and protection of the community. I have made these assessments because of the seriousness of the offending and my findings in respect of your insight and remorse as well as the various matters raised in the psychological material to which I have referred. On the other hand, you are a man who has no prior convictions, you have a strong work ethic and a strong wish to see your family again, which will most likely occur, as you are almost certainly to be deported following your sentence in this matter. Also, you have their ongoing support and I accept that gaol has been and will be a salutary experience.

General Deterrence, Denunciation and Just Punishment

115. Strong weight must be attached to general deterrence in a bid to deter others from behaving as you have. I make this finding, having reduced the weight to a minimal extent, in keeping with my Verdins findings in respect of moral culpability. After making such marginal allowance, I also place strong weight on just punishment and denunciation.

Sentencing Practice and other matters

116. I have considered all the relevant material in this case and have had regard to sentencing practice, insofar as I can, in respect of the offences you have committed. I have borne in mind that sentencing practice is but one consideration and not a controlling one.
117. The offence of rape is a Category-1 offence requiring me to impose a custodial sentence and also carries a standard sentence of ten years.
118. The Crown submitted that the circumstances of the rape place it above mid-range and I accept that submission. As I previously said, it is a very serious example of that offence.
119. Pursuant to s11A(4)(c) of the Sentencing Act 1991, I am required to impose a non-parole period of not less than 60 per cent of the total effective sentence imposed, unless I am of the view it is not in the interests of justice to do so, but bearing in mind that I am only to impose a single non-parole period in relation to the total effective sentence for all offences as I have previously indicated.
120. The Crown submitted that I ought not find that it was not in the interests of justice to impose a lesser non-parole period than that prescribed. I agree with this submission, and note the terminology, ‘not less than 60 per cent’ which means that a greater percentage of the total effective sentence may be imposed.
121. Charges 3 and 4, the charges of kidnapping, are Category 2 offences, which also require a custodial order to be imposed, unless a statutory exception applies. No such exception applies in your case.
122. You are to be declared a serious sexual offender after your conviction and sentence of imprisonment for the kidnapping charges and the rape charge and the presumption of cumulation will therefore apply to sentencing in relation to Charge 6.
123. Your status as a serious sexual offender will be noted on the records of the Court.
124. It is not submitted that a disproportionate sentence ought be imposed in relation to you because of the serious sexual offender provisions. Although the presumption of concurrency is removed for the purposes of Charge 6, I am of the view that your offending is of such a serious nature and impacts different victims, or the same victim in different ways, that a degree of cumulation is warranted as between the sentences in respect of some other charges. However, the principle of totality still applies.

Sentence

125. You are convicted of each of the offences.
126. I make the Disposal and Forfeiture orders sought by the Prosecution and not opposed by you.
127. You are sentenced as follows:
128. Charge 1 (aggravated burglary), 7 years’ imprisonment.
129. Charge 2 (false imprisonment), 3 years’ imprisonment.
130. Charge 3 (kidnapping), 9 years’ imprisonment.
131. Charge 4 (kidnapping), 9 years’ imprisonment.
132. Charge 5 (rape), 15 years’ imprisonment which is the base sentence.
133. As I said, you are now to be declared a serious sexual offender and sentenced as such in respect of Charge 6. Your status in this regard will be noted in the records of the court.
134. Charge 6 (sexual assault), three years’ imprisonment.
135. Charge 7 (common law assault), fourteen months’ imprisonment.
136. Charge 8 (theft of car), six months’ imprisonment.
137. I direct that 6 months from the sentence on Charge 1, 3 months from each of the sentences on Charges 2 and 6 and 3 years from each of the sentences on Charges 3 and 4 be served cumulatively with each other and with the base sentence.
138. This produces a total effective sentence of 22 years’ imprisonment and I direct that you serve 15 years’ imprisonment before becoming eligible for parole.
139. I declare that you have already served 842 days of pre-sentence detention.
140. Section 6AAA only applies for some of the offences, so this declaration is more complicated than it might otherwise be. If not for your pleas of guilty in respect of charges 1, 2, 3, 4, and 8, and factoring in your pleas of not guilty to charges 5, 6 and 7, I would have imposed a total effective sentence of 26 years 6 months with a non-parole period of 19 years.
141. The sentence for rape that I have imposed relates to the standard sentence by being 5 years more than it, and I have imposed this sentence in view of the high level of objective seriousness of your offending in this regard, the features and circumstances of which I have explained in the course of my sentencing remarks, and after taking into account all relevant matters as explained in my sentencing remarks, in accordance with my instinctive synthesis.