R v Dong [2012] VSC 525

3 As Zhong Zhang turned to return to the restaurant, the male walked towards him quickly and, without warning, thrust a knife into his chest. At about that time, Zhong Zhang recognised you. He saw you were holding a knife wrapped in a piece of newspaper.

4 He shouted as loud as he could and retreated towards the restaurant, where he was assisted by his wife and Tao Zhang, who was the owner of the restaurant. They took him to the Dandenong Hospital in his own car. He was found to have a 2cm long stab wound on the left hand side of his chest penetrating his body and perhaps his lung. Because of his deteriorating condition, he was transferred to the Alfred Hospital, where he remained as an inpatient for a number of days. It is not entirely clear whether the lung was penetrated, but drains had been placed in both lungs at the Dandenong Hospital.

5 The wound in the upper left chest just above the left nipple was near to the heart. It was a serious one and could have been life threatening. The injury, however, is not a particularly serious one when compared with the injuries in cases of a similar kind which come to this Court.

6 You were arrested in the early hours of 7 July at your home, which was only a relatively short distance from the restaurant. You were extremely drunk at that time.

7 You were interviewed by the police the next morning. You told the police that you knew Zhong Zhang, who you thought was having an affair with your wife, which led to your separation from her at the end of 2009. You denied being at the restaurant and stabbing Zhong Zhang, but you did say that you hated him because he had broken up your family. You otherwise had no recollection of your movements.

8 You had, in the months leading up to this event, made two telephone calls to Zhong Zhang which, by a reasonable assessor, would be regarded as threatening.

9 Your trial was conducted on the basis you had not been the stabber in the sense at the very least that the jury could not be satisfied beyond reasonable doubt about the matter. It followed that, apart from the matters that I averted to in the charge, not much was said about the question of intent and therefore about the alternative charges of intentionally and recklessly causing serious injury. There was evidence that you had a lot to drink during the late afternoon and evening. Two of your work colleagues gave evidence about that. You were very drunk when arrested and when first observed by police at your home a few hours earlier.

10 I must sentence you on the basis that you stabbed Zhong Zhang intending to kill him. Since the jury heard all of the evidence about intoxication, I have proceeded on the basis that your consumption of alcohol acted as a disinhibiting factor, rather than depriving you of actual intent. That finding was reasonable given you had to travel from your home to the restaurant and back again. I am prepared to proceed on the basis that you would not have offended in this way unless you had been affected by alcohol.

11 You did strongly resent Zhong Zhang, blaming him as you did for the break up of your marriage. It is almost certain that you were wrong in that assessment of the situation. I suspect much of the trouble in your marriage was a result of your own conduct.

12 At one stage, Zhong Zhang, your wife and another friend had been partners in the restaurant but had not been particularly successful in that enterprise and it was then sold to Tao Zhong, but your wife and Zhong Zhang continued to work at the restaurant. It was out of the totality of those circumstances that you came to believe what you believed about the relationship between your former wife and Zhong Zhang.

13 I am satisfied that you have an incomplete memory of these events and may well believe that you did not stab Zhong Zhang. It is quite clear that you did as the jury verdict makes clear.

14 Your victim Zhong Zhang suffered the immediate effects of being stabbed as I described above, but he has ongoing psychological and physical problems. He has been unable to work and has lost very significant income. He may be forced to leave Australia and return to China because he cannot meet the commitments of his working visa. In turn, that pressure on him puts pressure on his family. I received a victim impact statement from him, which was read to the Court on the plea.

15 You were born and raised in a village in Xinjiang Province in China. You have three brothers and one sister. Your mother has died but your father, brothers and sisters all live in China. Your education was interrupted because of events surrounding the Cultural Revolution. After completing your education, you did rural work before working on a major building project relating to the national power grid and then as a plumber and maintenance worker in a hospital until 1985, when you came to Australia with your wife Nina Cui, whom you had married in 1981. Your eldest daughter was born in China and came with you; your youngest daughter was born in Australia. You have now been in Australia for about 27 years. You have always worked and, at the time of the offending, you were employed as a steel frame construction worker by Express Interiors. That appears to have been at least a semi skilled occupation at which you were highly proficient. You have enjoyed good health both physically and mentally and suffer no identifiable disorders. You are of normal intelligence.

16 All those matters were set out in two reports I received from Mr Ian McKinnon, a forensic psychologist, the principal report dated 11 December 2010, which had been prepared for a bail application and which, among other features, led to the successful application being made on your behalf and you were released on bail. I also received a supplementary report from Mr McKinnon, which had been prepared after he saw you on 1 June 2012. He reported that you had been, at the time leading up to this event, somewhat depressed. Insofar as it can be determined although you enjoyed alcohol, you consumed much more than usual on 6 July 2010. You told Mr McKinnon you have no memory of the events and that there were occasions in the past when you had suffered blackouts after the over indulgence in alcohol. The effects of alcohol were therefore not completely unknown to you.

17 On the plea I received a number of written references and other material.

18 I received a medical report about your father indicating that he suffers from cerebral infarction and brain atrophy and needs to be looked after by others. He is 90 years of age. I note your father said he missed you and your family, and asked you to visit him. I received two group references with very many signatures, at least 50 on one of them, telling me that you are a hardworking family man who had been of much assistance to others and was a very good worker. The number of people who have signed those references demonstrates the high regard with which you are held in your community.

19 You employer also provided a very powerful reference for you.

20 On the plea I heard evidence from Susan Liu about the assistance you had given to her family when her father died and remained a good friend of the family up until the trial. That is, even after you had been in custody and released on bail, when on bail you continued to support the family. I received a reference from Nevin Liu, a younger brother of Susan Liu, that you had been an important father figure to him after his father's death. He referred to you as Uncle Dong.

21 This offending is out of character. You were absorbed, if not obsessed, with the collapse of your marriage and you blamed Zhong Zhang for it; as I have already observed, almost certainly wrongly. Since the breakdown of your marriage, you have had no contact with your daughters, which has been a matter of great hurt to you. You did have some contact with your former wife, but that appears to have been discontinued since your conviction. You spoke to your friends a great deal about the breakdown of your marriage when they saw you, and that emerged at the very least from the evidence of Xian Jun Zong and Guoqin Sheng, who gave evidence on the trial. They are the two men with whom you have been drinking on the afternoon and evening of 6 July 2010. You do not appear to have had many visitors on remand.

22 Your lack of memory of the events does have an effect on both your insight into the offending and the question of remorse. In the broadest general sense, I do regard you to some degree as remorseful, subject to the reservations that I have set out. As I have already said, I regard the offending as out of character. You have no prior convictions and your only contact with the law has been in relation to an intervention order arising from the breakdown of your marriage.

23 Although your immediate family are in Australia, your extended family are in China, particularly your father, and I doubt that you will have an opportunity to see him before he dies. Unfortunately, the question of whether your immediate family visit you in prison is entirely a matter for them, but I have taken those matters into account because there is a risk that the sentence that I will impose will be a fairly isolated one, particularly having regard to your lack of facility in the English language.

24 The maximum term of imprisonment for attempted murder is 25 years. Your particular offending is in the lower half of offending of this kind, involving as it did only one stab wound and the infliction of a moderately serious injury, although it cannot be avoided that the effect on the victim has been very significant.

25 Apart from the matters relating to your general good character and circumstances, the principal submission put on your behalf was that I should regard your intoxication as reducing your moral culpability. It has been accepted by the courts that intoxication may act in mitigation, but it will not always do so.[1] The principal consideration is whether or not a person does something under the influence of alcohol which they might otherwise have done. That proposition will often in turn depend upon the person's previous good character. That is, the extent to which the behaviour being considered can be said to be outside ordinary behaviour. The general testimonials as to your good character are powerful. The evidence about your assistance to the Liu family was powerful. I am prepared to say in your case that intoxication does reduce your moral culpability, but that has to be seen in the light of the very clear resentment that you bore to Zhong Zhang which I have described in these reasons.

26 I was also urged to impose a non-parole period lower than the usual non-parole period, but I do not see any particular reason to do so in this case having taken into account all of the matters put on your behalf in mitigation in terms of the sentence that I have framed, and taking into account that the non-parole period of itself must also serve all of the purposes for which a sentence is imposed.

27 I am obliged to consider both general and specific deterrence. I regard your prospects of rehabilitation as being good. I do not believe that you will offend again or, in particular, offend in a way similar to this.

28 I must have regard to just punishment. Grievances of the kind that you thought you had cannot be resolved by violence.

29 I sentence you be imprisoned for eight years and I fix a non-parole period of five years before you are eligible for parole. I regard the potential period of three years on parole as being the appropriate period to be fixed in your case, being sufficient for parole to have such effect as it would have on you; to your benefit hopefully.

30 I declare that you have served 375 days pursuant to this sentence by way of pre-sentence detention, and I direct that this declaration and its details be entered in the records of the Court.

[1] R v Davis, Court of Criminal Appeal (unreported, 9 May 1980).