Chen v R

Determination 26The submissions in support of this ground demonstrate the need for care with regard to terminology when discussing the elements and attributes of a criminal offence. 27In order to understand my analysis of this ground and the next ground, it is necessary to set out various provisions of the Crimes Act as they stood at 19 March 2011, the date of the offence. 28It will be recalled that the charge was brought pursuant to s 35(3) of the Crimes Act. At that time, the relevant portions of s 35 were as follows: "35 Reckless grievous bodily harm or wounding (1) Reckless grievous bodily harm - in company A person who, in the company of another person or persons, recklessly causes grievous bodily harm to any person is guilty of an offence. Maximum penalty: Imprisonment for 14 years. (2) Reckless grievous bodily harm A person who recklessly causes grievous bodily harm to any person is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (3) Reckless wounding-in company A person who, in the company of another person or persons, recklessly wounds any person is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (4) Reckless wounding A person who recklessly wounds any person is guilty of an offence. Maximum penalty: Imprisonment for 7 years. ..." 29Section 33 of the same Act was as follows: "33 Wounding or grievous bodily harm with intent (1) Intent to cause grievous bodily harm A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to cause grievous bodily harm to that or any other person is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (2) Intent to resist arrest A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to resist or prevent his or her (or another person's) lawful arrest or detention is guilty of an offence. Maximum penalty: Imprisonment for 25 years. ..." 30Section 5 of the Act (to which I shall return) had been repealed on 15 February 2008. Section 4A was as follows: "4A Recklessness For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge." 31An offence pursuant to s 35 did not appear in the non-exclusive list of offences of specific intent contained in s 428B of the Crimes Act. 32In short, in order to prove the offence, the prosecution needed to prove that: (1)By way of a voluntary act; (2)The applicant wounded another person; (3)At the time the applicant intended to wound or was reckless as to wounding; and (4)At the time the applicant was in company of another person or persons. 33When I refer to a voluntary act, I mean a willed contraction or expansion of the muscles: see Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205. The paradigm of an involuntary act is head butting a person whilst suffering from an epileptic fit. A person who did such an act would not, of course, be guilty of assault. 34As for recklessness with regard to the wounding, it was incumbent upon the prosecution to prove that the applicant foresaw that there was a possibility that his act could cause the type of harm in fact caused, see R v Coleman (1990) 19 NSWLR 467; (1990) 47 A Crim R 306. In other words, the prosecution needed to prove that, at the time of the wounding, the applicant foresaw the possibility of a wound being inflicted. As for the need to prove foresight of the possibility of wounding, and not just some actual bodily harm, see: R v Smyth [1963] VR 737 and R v Kane [1974] VR 759. Both of those decisions are cited with approval in R v Coleman at 313. 35Those two aspects of the offence to which the applicant pleaded guilty were not controversial. His plea, maintained whilst represented by senior counsel most experienced in criminal law, is a powerful indicator that he accepted that those matters had been established by the prosecution. 36As can be seen from the extracts from the submissions that I have provided, it is not clear, with respect, what meaning counsel for the applicant attached to the phrase "deliberately slashed" that was used in the remarks on sentence. At times it was equated with an intention to cause the damage that was done; on other occasions premeditation; and on another occasion rationality on the part of the applicant. 37I consider that, by saying that the applicant deliberately slashed the victim, his Honour was saying nothing more than that the action of moving the knife in such a way that it inflicted a substantial wound to the victim was a voluntary one. As I have indicated, that proposition was accepted by way of the plea of guilty. 38If his Honour was also saying that the applicant slashed the victim intending to inflict a cut or wound upon him, in light of the surrounding circumstances, and the length and seriousness of the wound, I consider that that finding was certainly reasonably open. And as I have demonstrated, pursuant to s 4A of the Act, intention was a mode of proving recklessness. 39Finally, such a finding by his Honour would not have infringed the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383. That is because such a finding would not leave the applicant open to punishment for a more serious offence that carried a higher maximum penalty and structurally sat above the offence in s 35(3). It can be seen that none of the offences contained in s 33 as at 19 March 2011 could be made out by an intention to wound. 40I consider that ground one should not succeed.

Ground Three: "The learned sentencing judge fell into error re the element of 'recklessness'"

Background and submissions 41This ground is founded on the statement by His Honour in the remarks on sentence that "[c]learly the offender intended to cause some injury". It was submitted that that statement was not "in accordance with the definition of 'recklessness'" as explained in Blackwell v R [2011] NSWCCA 93; (2011) 81 NSWLR 119. Particular reliance was placed upon [82] of the judgment of Beazley JA (as her Honour then was). There it was said: "This submission may have had some force if the suggested direction as to recklessness for the purposes of s 35(2) as amended was correct. However, I do not think that it is. The Crown's submission fails to disengage with the statutory jurisprudence prior to the amending legislation. Both the word 'maliciously' and its defined concepts have disappeared from the statute. Relevantly for present purposes, the statute provides for a offence of "recklessly [causing] grievous bodily harm". There is no definitional construct within the terms of the provision which governs its meaning. There is a requirement of recklessness, which I have addressed. That is, there must be a foresight of the possibility of something. The recklessness must cause something. That which it must cause is grievous bodily harm. In my opinion, there is no basis upon which that term can be read down to mean "some physical injury". Although the purpose of the amending legislation was to remove the 'archaic' fault element of offences done maliciously, there is a difference of substance between an intention to inflict some physical harm (the former s 35) and recklessness as to whether grievous bodily harm would be inflicted (s 35(2) as amended) as I have explained." I shall return in a moment to place this extract upon which counsel for the applicant relied in context. 42It was submitted that, although Blackwell v R was to do with an offence of recklessly causing grievous bodily harm, brought pursuant to s 35(2) of the Crimes Act, nevertheless the principle enunciated by her Honour was applicable to an offence brought pursuant to s 35(3). It was submitted that, if the submission of the applicant with regard to Blackwell v R is accepted, "an objective view of the applicant's culpability, indicates a less serious offence, than that indicated by the learned sentencing judge". 43In response, counsel for the Crown submitted that, in truth, the principle in Blackwell v R has no application to this case. That is because the discussion in Blackwell v R was founded upon the common law with regard to the mental element of maliciously inflicting grievous bodily harm, not malicious wounding, and the judgment of Beazley JA was about whether an amendment to that particular offence had caused an alteration to its elements. 44It was also submitted that, if in truth the complaint of counsel for the applicant is that his Honour made a finding that was not reasonably open, and that finding aggravated the circumstances of the offence, considering all of the evidence, not least the weapon used, the finding that "[c]learly the offender intended to cause some injury" was certainly reasonably open.

Determination 45I consider that the reliance in this case upon the principle in Blackwell v R is, with respect, misconceived. In order to explain why, I need to provide a chronology of the complicated development of the offences contained in ss 33 and 35 of the Act.

Chronology of the development of the sections and the case law 46For many years the offences in ss 33 and 35 were unchanged. As at May 1988, (the relevance of which date I shall explain in a moment) the sections creating the offences were as follows: "33 Wounding etc with intent to do bodily harm or resist arrest Whosoever: maliciously by any means wounds or inflicts grievous bodily harm upon any person, or maliciously shoots at, or in any manner attempts to discharge any kind of loaded arms at any person, with intent in any such case to do grievous bodily harm to any person, or with intent to resist, or prevent, the lawful apprehension or detainer either of himself or any other person, shall be liable to penal servitude for life. ... 35 Malicious wounding or infliction of grievous bodily harm Whosoever maliciously by any means: (a) wounds any person, or (b) inflicts grievous bodily harm upon any person, shall be liable to penal servitude for 7 years." 47At the same time, an offence of maliciously inflicting actual bodily harm with intent to have sexual intercourse was contained in s 61C. It was relevantly as follows: "61C Sexual assault category 2 - inflicting actual bodily harm etc with intent to have sexual intercourse (1) Any person who: (a) maliciously inflicts actual bodily harm upon another person, or (b) threatens to inflict actual bodily harm upon another person by means of an offensive weapon or instrument, with intent to have sexual intercourse with the other person shall be liable to penal servitude for 12 years. ..." 48As at the same date, s 5 of the Act was in the following terms: "5 Maliciously Maliciously: Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime." 49In R v Coleman, Hunt J (as his Honour then was) discussed the offence of maliciously inflicting actual bodily harm with intent to have sexual intercourse. The date of the commission of the offence under consideration in that appeal was 19 May 1988. In his Honour's judgment (with which Finlay and Allen JJ agreed) his Honour said at 312 - 313 with regard to malice and its proof by recklessness: "At the time of that decision [i.e. the decision of the High Court of Australia in R v Crabbe [1985] HCA 22; (1985) 156 CLR 464], it was also generally accepted law in Australia that, in statutory offences other than murder, the degree of recklessness required in order to establish that an act was done maliciously was a realisation on the part of the accused that the particular kind of harm in fact done (that is, some physical harm - but not necessarily the degree of harm in fact so done) might be inflicted (that is, may possibly be inflicted) yet he went ahead and acted. That general acceptance in Australia appears to have flowed from the decision of the English Court of Criminal Appeal in Cunningham, as explained by that Court in Mowatt [1968] 1 QB 421 at 426; (1967) 51 Cr App R 402 at 406-407." (original emphasis) 50For many years that was understood to be the definitive statement as to the degree of harm required to be foreseen as possible by an offender in the context of recklessness other than with regard to the offence of murder. It was accepted that the judgment of Hunt J, when applied to the offence of maliciously inflicting grievous bodily harm, was to the effect that, to be guilty of such an offence, an offender need not have foreseen the possibility of grievous bodily harm resulting from his or her actions. All that was required to have been foreseen was the possibility of actual bodily harm. 51It is noteworthy that the decision in R v Coleman said nothing about the mental element of the particular offence of malicious wounding. No doubt that is because the concept of a wound is not open to the kind of gradation to which bodily harm is subject. By that I mean that a wound is either caused or it is not for the physical element to be made out. It matters not whether it is a small cut or a gaping one. And as I have indicated with regard to ground one, Hunt J referred with approval to two Victorian decisions to the effect that what needed to be foreseen as possible was a wound, albeit not one of the seriousness of that actually inflicted. 52Returning to the chronological background, on 14 December 2001, by way of the Crimes Amendment (Gang and Vehicle Related Offences) Act 2001, the circumstances of aggravation of being in company was added to s 35. I record that for completeness; nothing turns on it. 53By way of Schedule 1[7] of the Crimes Amendment Act 2007, s 35 was amended. The amendments commenced on 27 September 2007. In short, the concept of malice was replaced by the concept of recklessness. A differentiation in maximum penalty founded upon the injury inflicted was also introduced: imprisonment for 10 years for grievous bodily harm and 7 years for wounding. The opportunity was also taken to insert an alternative verdict, which I shall not extract. Thereafter, the section appeared as follows: "35 Reckless grievous bodily harm or wounding (1) Reckless grievous bodily harm - in company A person who, in the company of another person or persons, recklessly causes grievous bodily harm to any person is guilty of an offence. Maximum penalty: Imprisonment for 14 years. (2) Reckless grievous bodily harm A person who recklessly causes grievous bodily harm to any person is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (3) Reckless wounding-in company A person who, in the company of another person or persons, recklessly wounds any person is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (4) Reckless wounding A person who recklessly wounds any person is guilty of an offence. Maximum penalty: Imprisonment for 7 years. ..." 54On 13 October 2007, the glassing that led to the appeal in Blackwell v R was alleged to have occurred. It is noteworthy that at that stage, s 35 had been restructured but s 33 had not. In other words, the offence in s 33 remained founded on proof of malice but the offence in s 35 was now founded on proof of recklessness. 55On 15 November 2007, by way of the Criminal Legislation Amendment Act 2007 s 4A was inserted in the Act. It was and remains as follows: "4A Recklessness For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge." 56On 15 February 2008, the amendments contained in Schedule 1[2] of the Crimes Amendment Act 2007 commenced. They repealed the definition of "maliciously" contained in s 5 of the Act. 57On the same date and by way of Schedule 1[4] of the same amending Act, the offences contained in s 33 were restructured. A regime of alternative verdicts was also inserted that, again, it is not necessary to recount. In short, the concept of malice was deleted with regard to s 33. The physical elements of wounding or grievous bodily harm were not altered. Thereafter s 33 was as follows: "33 Wounding or grievous bodily harm with intent (1) Intent to cause grievous bodily harm A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to cause grievous bodily harm to that or any other person is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (2) Intent to resist arrest A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to resist or prevent his or her (or another person's) lawful arrest or detention is guilty of an offence. Maximum penalty: Imprisonment for 25 years. ..." 58On 15 April 2011, the decision in Blackwell v R was delivered. To state the principle underpinning of the judgment of her Honour (with which James and Hall JJ agreed with regard to this point) with great succinctness, it was held that the change in terminology from "maliciously" to "recklessly" had worked a substantial change to the mental element of the offence in s 35. In particular, it was held that the principle in R v Coleman was no longer applicable. It was held that in order to be guilty of an offence of recklessly inflicting grievous bodily harm, as formulated on 13 October 2007, an offender must have foreseen the possibility of the infliction of grievous bodily harm, not merely actual bodily harm. 59Subsequent to the judgment in Blackwell v R, on 21 June 2012 by way of the Crimes Amendment (Reckless Infliction of Harm) Act 2012 s 35 was amended again. Again, disregarding the provision with regard to alternative verdicts, it is now as follows: "35 Reckless grievous bodily harm or wounding (1) Reckless grievous bodily harm - in company A person who, in the company of another person or persons: (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 14 years. (2) Reckless grievous bodily harm A person who: (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (3) Reckless wounding - in company A person who, in the company of another person or persons: (a) wounds any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (4) Reckless wounding A person who: (a) wounds any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 7 years. ..." 60In short, although there is no judgment of this Court that has dealt with the new section, I consider that the effect of the latest amendment to s 35 is that the judgment of Beazley JA in Blackwell v R has been reversed. 61Finally, to complete a complicated legislative history, s 18 of the Act retains malice as an aspect of the offence of murder. It is as follows: "18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only." (emphasis added) 62Parenthetically, it is remarkable that the concept of malice remains in the section of the Act that defines murder and manslaughter, even though the statutory definition of that concept was deleted over five years ago. I know of no decision of this Court as to what s 18(2)(a) should now be taken to mean.

Resolution 63The decision in Blackwell v R was with regard to the offence in s 35 of maliciously or recklessly inflicting grievous bodily harm, not the offence of maliciously or recklessly wounding. That distinction is important because, as I have shown, for over 20 years there had been a decision of this Court to the effect that the mental element of offences of maliciously inflicting grievous bodily harm did not require proof of foresight of the possibility of the infliction of grievous bodily harm. R v Coleman was authority for the proposition that the lesser state of mind of foresight of the possibility of actual bodily harm was sufficient for inculpation. 64But there had never been a decision to suggest that there was some "lesser" state of mind with regard to malicious wounding. It was always the case that, in order to be guilty of that offence, the prosecution needed to prove that the offender had inflicted a wound and, at that time, he or she foresaw the possibility of a wound occurring, albeit one not necessarily as serious as that actually inflicted. 65I consider that it can be seen that the change in understanding of the mental element of the offence of recklessly inflicting grievous bodily harm wrought by the judgment of her Honour in Blackwell v R had no effect on the mental element of the offence of malicious wounding or the mental element of the offence of reckless wounding. That is because, as I have said, there was never understood to have been a "lesser" mental element for malicious wounding. And that was because the physical element of the offence was, unlike grievous bodily harm, not founded on a gradation of seriousness: either a wound had been inflicted or it had not. 66It is true that the new ss 35(3) and 35(4) posit the broader state of mind of recklessness as to actual bodily harm. The result is that the offence of maliciously or recklessly wounding no longer requires foresight of the possibility of wounding. All it requires is foresight of the possibility of actual bodily harm (which may or may not be a wound). That may argue in support of the submission of the applicant. 67But that alteration does not, in truth, demonstrate that Blackwell v R had anything to say about the elements of reckless wounding. Parliament had determined to reverse the decision in Blackwell v R by amending ss 35(1) and 35(2). It would have been structurally anomalous not to amend identically ss 35(3) and 35(4). That amendment does not cause me to resile from my view that neither R v Coleman nor Blackwell v R spoke directly to the elements of offences of malicious or reckless wounding in the way contended for by counsel for the applicant. 68In short, I do not consider that the principle in Blackwell v R relied upon by counsel for the applicant has application to the offence under consideration in this appeal. 69Separately, if the complaint in truth of counsel for the applicant is that the statement of his Honour infringes the rule in R v De Simoni, I respectfully disagree with that proposition. As I determined with regard to ground one, there was as at the date of the offence no greater offence of "recklessly wounding in company with intent to cause some injury". As can be seen from my review of the permutations of the statute, the greater offence that existed as at the date of this offence was contained in s 33, and required proof of intention to cause grievous bodily harm or to resist or prevent lawful arrest or detention. 70Finally, if the complaint in truth is that the finding of fact that the offender had intended to cause some injury was not reasonably open, I consider that the circumstances of the offence, not least the fact that a 15 centimetre wound of some depth was inflicted upon a prone victim by a person armed with a flick knife, powerfully gainsay that proposition. 71It follows that I would not uphold ground three on any basis.

"4. The learned sentencing judge failed to give appropriate weight to the applicant's contrition.

5. The learned sentencing judge failed to give appropriate weight to the exceptional person [sic] hardship upon the applicant as a result of his conviction.

6. The learned sentencing judge failed to give appropriate weight to the statutory matters in mitigation."

72Although these grounds were notified separately, at the hearing of the appeal counsel for the applicant accepted that in truth these factors should be taken into account with regard to ground seven. The adoption of that position was in accordance with the decision of this Court in Hanania v R [2012] NSWCCA 220, an approach that has recently been endorsed by the Australian Capital Territory Court of Appeal in Tate v R [2012] ACTCA 50 at [51]. 73I shall therefore consider those three factors when I turn to ground seven. In light of the approach of counsel for the applicant, I would not uphold ground four, ground five or ground six as a separate ground.

Ground Seven: "In view of the above, the sentence imposed was manifestly excessive."

Background and submissions 74In support of this ground, counsel for the applicant did not take the Court to other decisions of the Court in similar matters, or statistics, or sentencing tables, or any other material that may serve to provide some context for such a submission. 75He submitted in short that a short reduction of 6 or even 3 months to the non-parole period would be an appropriate order for this Court to make. 76Counsel for the Crown submitted that the offence was serious, unprovoked, involved the use of a knife, very violent, and resulted in a serious injury. She submitted that the head sentence of imprisonment for 3 years and the non-parole period of 18 months fell comfortably within the discretion available to his Honour.

Determination 77It is true that the applicant had pleaded guilty at an early stage; that his Honour found that the applicant was remorseful; and that the commission of the offence had had substantial psychological effects on the applicant. 78It is also true that his Honour found that the applicant was very intoxicated at the time of the offence; that the applicant was not used to being so intoxicated; and that that state of affairs led to the applicant doing something quite out of character. 79It is also true that the applicant and his wife had suffered substantial personal hardship as a result of the consequences of his acts. Having said that, I do not accept that that hardship should be characterised as exceptional. Furthermore, I would have thought that there are towns and villages in China that are away from the great metropolises and that are free from air pollution that would exacerbate chronic asthma. 80All of the factors relied upon by counsel for the applicant were explicitly and, in some cases fulsomely, addressed in the remarks on sentence. 81To be weighed against the powerful subjective case was the fact that the applicant inflicted a serious injury upon the victim by way of a flick knife in circumstances in which the applicant was unprovoked. As I have shown, his Honour characterised it as "an ugly incident, completely unprovoked, involving a high level of violence and a high level of aggression". I respectfully agree with his Honour. 82In light of the maximum penalty and the standard non-parole period to which I have referred, I do not consider that the head sentence imposed can be characterised as manifestly excessive. I have come to the same view about the non-parole period, especially bearing in mind that it was substantially reduced by way of a finding of special circumstances. 83In short, taking into account the complaints that underpin grounds four to six, and considering all of the objective and subjective features of the matter, I am not persuaded that ground seven has been made out.

Orders 84I propose the following orders: (1)Leave to appeal granted. (2)Appeal dismissed.

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