R v Zhang [2009] VSCA 236

2 On 1 June 2006 the appellant, who is now aged 24 years, lived in his parents house at Forest Hill. The appellant was born in China and was brought to Australia by his parents in 1991. His parents for some years had spent a large part of their time in China, leaving the appellant in the family home. His parents were medical practitioners. The appellant and his parents were friends with another Chinese family who also lived in Forest Hill. The family consisted of a youth, Wei Tong Li, who was a contemporary of the appellant, and his parents. The appellant and Wei Tong Li were quite close friends.

3 On the night of 1 June 2006 the appellant went to the house of Wei Tong Li to use his computer to access the internet. Wei Tong Li moved aside to allow the appellant to use the computer after which Wei Tong Li used the computer himself. Behind his back, the appellant took a knife from a bag he was carrying. The appellant put the blade of the knife to the front of Wei Tong Li's neck and cut the skin, moving the blade back and forth across his neck. The appellant used his left hand to hold Wei Tong Li down. Wei Tong Li grabbed the blade of the knife, badly cutting his hands as he grappled with the appellant. Wei Tong Li called for his father, Er Lu Li, who rushed to assist him. Er Lu Li grabbed the appellant from behind. The appellant bit his wrist. The father and son gained control and the appellant ceased to struggle.

4 When the police arrived the appellant ran away. The appellant cooperated with the police although he was unable to give any logical explanation for his assault upon Wei Tong Li and his father.

5 The appellant was arraigned in the Supreme Court on a presentment containing a count of attempted murder, a count of intentionally causing serious

injury to Wei Tong Li and a count of intentionally causing injury to Er Lu Li. The appellant pleaded not guilty to the charge of attempted murder.

6 At the conclusion of the trial, the jury returned a verdict of not guilty on the count of attempted murder.

7 After a plea, the appellant was sentenced to be imprisoned for a term of six years on the count of intentionally causing serious injury and to a term of one year on the count of intentionally causing injury. The sentencing judge cumulated six months of the sentence imposed in respect of the count of intentionally causing injury on the sentence imposed on the count of intentionally causing injury, creating a total effective term of six years and six months' imprisonment. A non-parole period of four years' imprisonment was fixed.

8 The appellant has been granted leave by a single judge of this Court to appeal against his sentence. The first ground of the appeal is that the sentencing judge erred in failing to give any or sufficient weight to the mental state of the appellant in relation to the cause of his offences and his moral culpability. The second ground is that the sentence is manifestly excessive.

9 In the course of his sentencing remarks, the sentencing judge said:

There was no rational explanation for your acting as ungratefully, as unexpectedly and as grossly as you did.[1]

10 The sentencing judge recorded that the appellant had received psychiatric and psychological treatment and counselling from Dr Lim and Mr Newton and that Professor Doherty, a consultant psychiatrist, had diagnosed the appellant as suffering from a personality disorder. The report by Professor Doherty, which was tendered in the course of the plea, contained the following statements:

It is my opinion that there no evidence of a serious mental illness diagnosable in Mr Zhang. I am unequivocal in my view that there is no psychotic illness. I believe he has a disorder of personality, not a mental illness. ...

Thus my opinion is that Mr Zhang has a personality marked by introversion, some avoidance, obsessionality and intellectualisation. He can intellectually think through issues and problems but cannot deal with them at an emotional level. He has a disorder of personality. That disorder of personality is not of the anti-social sort; that is, it is not evident in his relationship to society. It is rather of an inter-psychic problem where his fragility of self esteem and his uncertainty of himself means that he cannot adequately express his emotions or manage highly charged emotional matters without feeling vulnerable, threatened and unsure of himself. In the circumstances that present themselves to the court, it was Mr Zhang's inability to deal with his resentment and humiliation that led to the assault.[2]

11 Counsel for the appellant in this Court relied upon an earlier report by Professor Doherty in which there was an attempt to explain the factual basis for the 'resentment and humiliation' referred to in the later report. Professor Doherty reported that the appellant said that the assault was as a result of things building up over the years and that he wanted to teach Wei Tong Li a lesson and to hurt him. The appellant told Professor Doherty: 'I had some bad feelings about him. We were friends for quite a while. Small things have happened in life that I don't like. Like, he's a selfish person. He would borrow my car. He would borrow it but not return it, park it at his own house. When I needed to use the car I had to get it back and borrow the car to get it back.'

12 The appellant harboured resentment towards Wei Tong Li as a consequence of Wei Tong Li causing damage to the appellant's car in an accident. In addition, the appellant felt resentment because Wei Tong Li took the appellant to Crown Casino, thereby introducing him to gambling, which became a problem for the appellant and as a consequence he lost large sums of money. The appellant also resented the fact that the victim brought his dog into the appellant's house and smoked in the appellant's house.

13 Counsel for the appellant submitted that the sentencing judge erred in failing to consider the effect of the appellant's mental state upon his moral culpability, although the applicant's counsel, correctly in my view, eschewed reliance upon R v Verdins.[3] I do not think that his Honour erred. He said that he had read Professor Doherty's report. The earlier report of Professor Doherty supplied the factual basis for the appellant's sense of resentment, but it did not provide any justification for the offences. The conduct of the victim did not explain or provide a rational explanation for the offences. In my opinion the sentencing judge's description of the appellant's moral culpability as high was warranted. This was not a case of psychiatric illness or even impaired mental functioning. The appellant lacked self-control and gave in to his emotions. Many crimes are committed in a similar fashion. That is relevant but does not of itself dictate the result in sentencing. Offences of this kind are not infrequently committed by persons with personality problems.

14 Counsel for the appellant submitted that the sentencing judge's remark that '[t]here are indications of some remorse, but they are scarcely of the fullest measure,'[4] was at odds with the opinions expressed in reports which were tendered in the course of the plea. While the reports did recount observations as to the appellant's remorse, the appellant's immediate response to the crimes was to flee and his reaction to the crimes did contain an element of self-regard. Dr Vine, a psychiatrist, noted that he was 'terrified of the situation in which he had found himself and in particular being in the Melbourne Custody Centre.'

15 The appellant could rely on powerful mitigating factors. He was a youthful offender; he had no prior convictions; no history of violence; and had pleaded guilty. Nevertheless the crimes were serious. Counsel for the appellant has put his case as forcefully and attractively as it can be put. Nevertheless, in my opinion, the sentence was one which a reasonable sentencing judge could impose. It was not manifestly excessive.

17 I too would dismiss the appeal for the reasons which his Honour has given.

18 I would add two brief comments. First, it seems to me appropriate to note what excellent assistance the sentencing judge received from the Crown prosecutor. A reading of the plea transcript shows that the prosecutor clearly and helpfully analysed for the assistance of the judge the relevant factors bearing on the approach to sentencing, and made helpful reference to what were said to be comparable cases - that being an important part of ensuring consistency of sentencing.

19 Secondly, the appellant has, in my respectful opinion, been very well served by his counsel both on the plea and on this appeal. Both the submissions on the plea and those on the appeal have been distinguished by their clarity and, I would emphasise, their succinctness. It is a mark of the judgment which comes with experience that - as occurred on the plea and again this morning on this appeal - the key points can be made forcefully without needing to be belaboured.

20 Ms Dalziel today has appropriately identified proper matters for argument and we have, as usual, been assisted by her submissions and those of Mr Gyorffy.

[1] DPP v Zhang [2007] VSC 505, [9].

[2] Report of Associate Professor Peter J Doherty, 5 November 2007.

[3] [2007] VSCA 102; (2007) 16 VR 269.

[4] DPP v Zhang [2007] VSC 505, [10].