R v Zhou

District Court of NSW|2020-03-06

Solicitors: Crown: Ms I Maxwell-Williams Defence: Ms Sarah Rashidi, Alpha Law Practice File Number(s): 2018/00261306

Judgment

In this matter, Zhanlong Zhou appears for sentence in respect of a single offence, being recklessly cause grievous bodily harm contrary to s 35(2) of the Crimes Act 1900. The maximum penalty provided is 10 years' imprisonment and there is a standard non-parole period of four years. Although this was a plea of guilty, the standard non-parole period remains relevant as a guidepost.
The offender was committed for sentence on 11 December 2019 from the Burwood Local Court. The plea of guilty was at the earliest opportunity and he is accordingly entitled to a discount for the utility of the plea alone of 25%. Thomson & Houlton (2000) 49 NSWLR 383.
The date of the offence was 23 August 2018 and he was arrested on the following day, 24 August 2018. He has been in custody since 24 August 2018 until today, only in relation to this offence. Accordingly, I note that the sentence imposed will commence from the date of his arrest, 24 August 2018.
The facts are agreed and are as follows:

BACKGROUND

The offender, who is now 32 years of age, and the victim, Mr Dong, who was some five years younger than the offender, knew each other. They are both Chinese nationals and were employed as gyp-rockers in Australia.
The victim and the offender would often meet in social settings, sharing meals and drinks and on occasion playing cards together. They also worked together. Another friend, a Mr Song, would often meet up with them and they would socialise.

THE OFFENCE

On 23 August 2018, the offender finished work between 4.30 and 5pm. He and Mr Song shared a lift with two other co-workers to a noodle restaurant known as "Master Guo" on Beamish Street, Campsie. Once there, the four men contributed to the purchase of a case of 24 Chinese brand beers, the alcohol by volume being 4.5%, which amounted to 1.2 standard drinks per bottle or can, and a Chinese brand wine which had an alcohol volume of 52% amounting to 21 standard drinks per bottle, which they consumed over dinner.
Following the meal, Mr Song went to the Vietnamese Playhouse Hotel where he played poker machines before entering the "Oasis on Beamish", another licensed hotel located on Beamish Street, Campsie.
At approximately 11pm, having made arrangements to meet the witness Mr Song at the hotel, the victim entered the Oasis Hotel. As he entered the hotel, the victim called Mr Song on his mobile. Mr Song was then playing poker machines. The victim asked Mr Song if he had any money and Mr Song responded that he did. Shortly thereafter, the victim walked into the poker machine room where the witness Mr Song gave him $300 in cash and they began to play poker machines. The victim then requested a further $200 from Song, who refused the further loan.
At 11.06pm the offender arrived at the premises and walked into the gaming room where he met with Mr Song and the victim. The offender asked Mr Song whether he had won any money, to which Mr Song replied "No, I lost money". The offender stood with the victim and watched Mr Song play on two poker machines. The offender and the victim then began pressing buttons on the second of the machines that Mr Song was using. Mr Song apparently became upset and told them not to play on his machine. The offender then said to the victim "He's losing money. Let's not play with his machine" to which the victim replied "Well you're messing with his machine too". The victim and the offender then began arguing and the witness Mr Song told them that if they wished to continue the argument, they should take it outside.
The argument caught the attention of hotel staff, causing security to ask the victim to leave. The offender also walked outside. As they exited, the victim shoved the offender in the presence of the security guard. That was captured on CCTV footage. As a result of observing the victim shove the offender, the security guard permitted the offender to re-enter the premises, with the victim remaining outside.
At about 11.40pm the victim re-entered the premises and requested a bottle of water, which he was given. The security guard, upon seeing the victim, asked both the offender and the victim to leave the premises. At 11.42pm the offender exited the hotel via an entrance onto Clissold Parade, Campsie. The security guard escorted the victim out of the Beamish Street exit, telling him that he could not come back in.
The offender was captured by CCTV, walking from the Clissold Parade exit of the premises to his vehicle, parked on the northern kerb of Clissold Parade, Campsie.
The CCTV footage then captured the offender opening the front passenger door of his vehicle and retrieving an object that glittered silver, which was a knife. The offender secured the vehicle and walked back in the direction of the hotel. The offender was then captured on CCTV placing the object he had taken from the vehicle into a pocket at the front of his grey coloured full length jumper and walking directly towards Mr Dong, who was standing outside the Beamish Street entrance to the premises. About 12 seconds later, the offender appears to be taking something out of his pocket, being a knife.
At 11.43pm the offender and the victim appeared to engage in a verbal argument before pushing one another. There was then a physical altercation between the offender and the victim in which the offender stabbed the victim multiple times and caused him grievous bodily harm. The altercation was captured on CCTV and shows the following:
The offender pulled the knife out of his pocket with his right hand and held it out to the side. The offender is then shown to strike towards the victim with the victim retreating backwards. Whilst walking backwards towards the intersection with Clissold Parade, the victim fell to the ground as the offender approached him, striking him at least 10 times with the knife. The relevant CCTV footage has been played during the sentence proceedings. In my view it demonstrates that the victim initially, when they met outside the Beamish Street entrance, stepped towards and within what might be referred to as the "personal space" of the offender. However he immediately sidestepped to the left and around the offender. It is the offender who then first pushed the victim and the victim responded by pushing back and they then struggled with each other.
During the course of that struggle the victim was stabbed, as I will refer to shortly. The majority of the stabbing occurred after the victim had fallen to the ground and the offender was standing or crouching over him.
The offender was then captured on CCTV walking back to his vehicle on Clissold Parade, Campsie. The offender got into the driver's side of the vehicle and the vehicle was last observed driving eastbound on Clissold Parade, Campsie.
After the assault, the offender contacted Mr Song on his mobile phone. Mr Song answered and the offender said "Come out and check Dong Li to see if he is still alive, I stabbed him once". Not believing the offender, Mr Song replied "No" before hanging up. The offender made further attempts to call Mr Song, during which he requested that Song check on the victim. Mr Song continued to hang up on the offender and continued to play the poker machines.
At approximately 11.45pm a staff member of the Oasis Hotel noticed the victim bleeding and ran into the hotel yelling to the security guard that someone had been stabbed. The security guard exited the hotel and noticed a trail of blood which led to the footpath on Beamish Street and then left onto Clissold Street. There, slumped next to a fire exit of the hotel, was the victim who was covered in blood.
The security guard asked the victim whether he was all right, to which the victim replied "No, no I have to go". The security guard lay the victim down in the recovery position and instructed him to keep applying pressure to his wounds. The security guard noticed, as the victim moved his hand from the right side of his lower back, a large amount of blood spurting out. At the same time the security guard also saw a V-shaped flap of skin flapping off the wound.
Emergency services were contacted with police and paramedics attending the scene shortly after. The victim was treated at the scene and then transported to St George Hospital.

INJURIES

Mr Dong sustained multiple stab wounds as a result of the incident, including to his chest, lower back and buttocks area. The stab wounds to the victim's chest and upper back resulted in a collapsed left lung. He was intubated in the emergency department. An intercostal chest drain was placed on his left chest for the collapsed lung. He was stabilised and sent to the ICU. He underwent surgery to explore, wash and close his wounds.
The wounds sustained by the victim were described as follows.

CHEST

3 cm wound, 3cm superior to left nipple, which went through all skin layers and breached the subcutaneous fat and chest wall.

BACK

4 cm vertical wound, mid scapular at the level of the nipple, which went through all skin layers and subcutaneous fat.
4 cm horizontal wound, 6 cm above the natal cleft, which went through all skin layers and breached subcutaneous fat.
4 cm wound, 10 cm above the natal cleft and to the right of mid-line, which went through all skin layers and subcutaneous fat.

LEFT BUTTOCK

2 cm wound, left buttock at level and just off midline, which went through all skin layers and subcutaneous fat.
2 cm wound, left mid-lineal region, which went through all skin layers and subcutaneous fat.

RIGHT BUTTOCK

Six wounds of varying sizes as follows:

Two horizontal wounds to the right superior/lateral gluteal region, measuring 2.5 cm (went through all skin layers and subcutaneous fat) and 2 cm (this breached subcutaneous fat).
One 2cm wound right lateral gluteal region, which went through all skin layers and subcutaneous fat.
Two wounds to the mid gluteal region measuring 4 cm and 10 cm respectively, both going through all skin layers and subcutaneous fat.

In total the victim received 10 or 11 stab wounds and remained in hospital from 24 August 2018 until being discharged seven days later on 31 August 2018.
His injuries were described as "severe, painful and life-threatening" by Dr Selvendran, a trauma surgeon with St George Hospital.

INVESTIGATION AND ARREST

Police enquiries established the offender was residing in a unit in Lincoln Street, Campsie, which police attended and where they arrested him.
Police also located the offender's vehicle near the eastern kerb of Lincoln Street, Campsie, and a knife was located inside the vehicle and was seized for a forensic examination. (I understand from submissions during the course of sentencing that no forensic link was made between the knife located in the vehicle and the knife used, and no relevant admission has been made by the offender that it was the knife that was used).
The offender was arrested and conveyed to a police station. As he did not speak English, an interpreter was organised to assist him, and when an interpreter was available the reason for his arrest was explained to him and he was informed that he was arrested and was cautioned.
The formalities were complied with and he agreed to participate in an electronically recorded interview. During the interview, he identified himself and the victim on the CCTV footage. When asked to describe the fight the offender told police that the victim had hit him before the offender hit the victim back. The offender claimed that he was well affected by alcohol, having consumed approximately seven or eight beers and two spirit beverages and Chinese wine. The offender also claimed that the victim was well affected by alcohol. He then made admissions in relation to stabbing the victim with a knife, saying: "After I stabbed him, I immediately regretted it. I took out the knife and I stabbed him in the abdominal area and then I became a little sober and then I stabbed him, maybe his bottom thigh".
The offender stated that he only wanted to frighten Mr Dong, however when he became involved in the fight he lost control. The offender described the knife he used as one he usually carried to peel or cut fruit and claimed it had been in the pocket of his hoodie for about one week. The offender could not explain why it was that he stabbed the victim, saying: "I can see I indeed stabbed Li Dong but I don't know why I stabbed him. I want to know why I ended up stabbing Li Dong".
I note that the offender, in his evidence on sentence, and in consultation with Mr Borenstein, psychologist, continues to claim that he does not know why he stabbed Li Dong. It is clear that on the night in question there was some animosity between them. From what it arose is not evident. The victim at least, when they were both first asked to leave from the premises, had pushed the offender but that was some time before the incident which resulted in the injuries. They had been also arguing while in the hotel but it is not evident what it was about or why they continued later to argue between themselves.
The offender claims to have little recollection of how it is that he came to stab the victim so many times, or why. I accept that he was affected by alcohol at the time but my observation of his conduct from the CCTV footage of the incident is that he was physically co-ordinated and on no occasion, while observable in the recording, did he appear to be substantially affected by alcohol. That is, he was not staggering or falling about and was able to properly co-ordinate himself during the fight and in fact to overcome the victim before getting on top of him and then, in what the Crown has fairly described as "frenzy", continuing to stab him.
In the circumstances of those observations and the fact that shortly after the incident he rang Mr Song and said to him: "Come out and check Dong Li to see if he is still alive. I stabbed him once"
And also noting that after Mr Song had replied "No" and hung up, that he made further attempts to call Mr Song during which he also requested that Mr Song check on the victim. In those circumstances, I do not accept his claim to have no real memory of the event or its cause, or of indeed the number of occasions on which he stabbed the victim. I do not regard his evidence on sentence in that regard, accordingly, as having been forthright or honest.
As to the injuries inflicted, they were clearly serious. They resulted in the victim having to spend some seven days in hospital and, in particular, to have surgical intervention in relation to his collapsed lung. It appears that the victim, after being released from hospital, was subsequently deported from Australia to his home country of China, he being unlawfully in Australia, having overstayed his visa. Accordingly, there is no evidence of any sequelae arising from the injuries other than what is referred to in the agreed facts. It is however of serious concern that the victim received a significant number of stab wounds, at least some of those being to his chest and back at about nipple level. Other than his lung, there is no evidence before the Court of any injury to any other internal organ.
As to the objective seriousness of the offence, I have already noted the number of stab wounds and their location and referred to the fact that this was a serious offence, with the treating surgeon having stated that the injuries were both serious and life-threatening. The circumstances of the offence include that the offender and the victim were apparently known to each other, indeed as I understand it, known to each other from China. There had been on the evening a verbal argument between them, the nature of which is unknown, and it continued outside the hotel premises. It is possible of course that the later incident was, to some extent, a reaction from the victim having earlier pushed the offender, when they were told to exit the premises. In that sense it was not an entirely unprovoked offence; however the subsequent response, after the intervening period and after the offender went to his vehicle to obtain a knife, was entirely disproportionate to any conduct of the victim's.
The fact that the offender went to his vehicle to get a knife indicates, in my view, a level of premeditation and an expectation that there may be a further confrontation between the two of them. There was however, in the circumstances, not a significant period of planning. The offender had at least prepared himself for the possibility of inflicting actual bodily harm on the victim, should there be any further confrontation. Clearly, the offending was not wholly spontaneous. As I have already referred to, the attack was frenzied as can be seen from the CCTV recording, and indeed it was sustained. I accept that the victim appears from the CCTV footage to have been stabbed at least 10 times, as the victim retreated backwards and fell to the ground. The majority of the stabbing appears to occur when the victim was in fact on the ground and the offender on top of him. In the circumstances, I infer that once the argument had recommenced on the second occasion, the offender intended to inflict actual bodily harm on the victim, foresaw the possibility of grievous bodily harm being inflicted by his conduct and elected to continue with that conduct, which in fact inflicted grievous bodily harm, regardless of that foresight.
I have already referred to accepting the offender was affected by alcohol. Of course s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 provides that, in determining the appropriate sentence for an offence, self-induced intoxication of an offender at the time the offence was committed is not to be taken into account as a mitigating factor. It may however provide some explanation as to why the violence escalated to the degree that it did.
Having caused the injury to the victim, the offender left the scene. He did not make any effort to contact the police or an ambulance to get assistance for his friend, although he did contact Mr Song and ask him to check to see whether the victim was dead. I find that the offending falls at least into the midrange of objective seriousness for such an offence, if not above it; although in that circumstance I will find that it falls at least in the midrange. An aggravating circumstance in my view is the fact that it involved the use of a weapon. An offence contrary to s 35(2) does not involve as an element the use of a weapon of any nature although they are frequently used in such offences. In my view the use of the knife must be taken into account as an aggravating circumstance, pursuant to s 21A(2)(c) as referred to in R v Chisari [2006] NSWCCA 19 at 31; R v Dickinson [2004] NSWCCA 457 at 23-24.
In R v Hampton [1999] NSWCCA 341 at 10 it was noted that the presence of a knife in an emotionally charged situation increases the danger of the situation and the penalty which is liable to be imposed.
In my view there was no provocation in relation to this matter which could justify or excuse in any way the course adopted by the offender.

SUBJECTIVE MATTERS

The offender is a 32 year old Chinese citizen. He has no Australian criminal history but has been present in Australia unlawfully since August 2016, working as a gyprocker up until the time of the offence. I accept, as expressed during the sentence proceedings, even though I do not accept that his evidence was entirely honest or forthright, that he is genuinely remorseful and contrite in relation to the injuries that he inflicted on his friend. As I have already referred to, I believe that the offender is to some extent hiding behind his level of intoxication and exaggerating it in order to diminish his moral culpability at least for the benefit of his own psyche, by pretending that his offending was the result of intoxication rather than any other factor. I accept, as submitted by the Crown, that that demonstrates a lack of insight.
I have read the report of Mr Borenstein, psychologist, which refers to the offender as suffering from a severe, depressive illness over at least the last five years, compounded by his gambling and alcohol consumption. I note that the entirety of Mr Borenstein's report is based on self-reporting by the offender. There is no evidence of any psychometric testing. He has otherwise found that the offender does not suffer from any serious psychiatric disorder or psychosis, that his thoughts for content and process are normal and that there is no evidence of any perceptual disturbance such as delusions, hallucinations or ideas of reference of feelings of passivity and that he is cognitively intact.
I accept that at least since being arrested and placed in custody after such a vicious assault on his friend, he has every reason, while awaiting sentence, to be depressed.
He is said to have come to Australia because he had acquired a debt in China of $500,000 as a result of gambling and that he came to earn money to repay the debt. However after arriving in Australia, he unfortunately discovered a new form of gambling, having engaged in the game of Pai Gow in China, he discovered the unfortunately ubiquitous poker machines present in New South Wales and roulette, and he then commenced to gamble anywhere, pubs, casinos and all sorts of places. I accept that, despite the fact that it is self-reporting, he has a significant difficulty with gambling but it has no causal relationship to this offence other than having originally had something to do with an argument first occurring in the hotel while he and the victim were playing Mr Song's second machine.
He is said to have a wife and having been together with his wife for 19 years, although they were only married approximately five years before she divorced him. There is said to be a 10 year old daughter who lives with Mr Zhou's parents in China. His ex-wife is apparently his first and only female partner and he has had no further relationship history while in Australia. He apparently works six days per week and otherwise spends his spare time drinking alcohol and gambling. He was born in Hubei province, the youngest of three children. His oldest brother is married with two children; his next older brother is married, also with two children. They all reside in China as do his parents. He was educated to the equivalent of Year 6 primary school and then commenced work aged 17 in factories, weaving bags. He is said to have had a satisfactory childhood and family upbringing, with no history of trauma or abuse or domestic violence and he is said to have a good relationship with his older brothers and parents.
I previously noted he has no criminal history in New South Wales. There is also no evidence that he has a criminal history in China, and I accept that at the age of 32, in the absence of any criminal history, that he can be regarded as a person of previous good character, even though he became an unlawful resident in Australia.
Before the Court are a number of certificates attesting to the fact that during his time in custody he has completed a number of courses in relation to the Christian religion and has been baptised as a Christian. It can be said that he has apparently on that basis found God. I have some difficulty in relation to the religious courses that he has completed as they seem to occur on a regular monthly basis and his evidence in respect of them and what they involved appears to indicate that, in order to obtain the certificate of completion and a rating as to his competency in the course, it simply involved a friend assisting him in relation to recording particular passages from the Bible. I will accept however that he has converted to Christianity and hopefully that will be of comfort to him while he is in custody and continue to be of comfort to him when released.
There is no evidence before the Court that he has done anything while in custody to deal with his alcohol problem, if he has one, or his gambling problem, if he has one. As I have said, neither of those matters appears to have any real causal relationship to this offending. I note of course that while on remand, the availability of courses is more limited than when actually serving a term of imprisonment. I note that he has not, while in custody for approximately 18 months, breached any prison regulations and I accept that he has been occupying himself while in custody in the distribution of toiletries and other matters to other prisoners, that is, a form of prison employment.
In providing a sentence in respect of this matter, the Court must take into account all the matters that I have referred to including the utility discount, the objective seriousness of the offence and the matters personal to the offender as well as, of course, the maximum sentence available and the standard non-parole period as relevant guideposts.
Taking all of those matters into account as part of the instinctive synthesis, I have determined a sentence. I note that it has been submitted by both parties that the s 5 threshold has been crossed and that no sentence other than a term of imprisonment is appropriate. I accept that that was an appropriate concession by Mr Breeze on behalf of the offender. Indeed, in my view, it was an inevitable concession that had to be made in the circumstances of the offending and the objective seriousness of the offence.
In my view specific deterrence is still a matter of significance in relation to this offender, particularly in the circumstances where he claims not to know why it is he did what he did. The Crown referred to his conduct as a frenzied attack. It seemed that once he crossed the threshold of stabbing the victim, he essentially went into a period of what might be called "berserk" conduct, although all of this conduct was directed at the one victim.
In relation to matters such as this, that is a significant assault on another citizen in a public place with a knife, it is clear that general deterrence must weigh heavily. In those circumstances I have determined a sentence.
Mr Zhou, would you please stand? You are convicted in respect of the offence of recklessly inflicting grievous bodily harm on Mr Dong and you are sentenced to a non-parole period of two years and six months. The balance of term will be one year and six months, giving a total term of sentence of four years. You were arrested on 24 August 2018 and have been in custody since that time. Accordingly the sentence commences on 24 August 2018. The two year six months non-parole period will expire on 23 February 2021 and you will be then eligible for parole. The balance of term or parole period is one year and six months and the total sentence expires on 23 August 2022.
I note that it has been put on your behalf that a fixed term could be appropriately imposed and that the Crown has similarly accepted that a fixed term could be appropriately imposed. In my view however, it is important that there be some incentive to cause you to wish to deal with any problems and to seek assistance in relation to anger management while in custody. While you can probably, should you be of good behaviour while in custody as you have so far been, count on being released on or about 23 February 2021, you will not necessarily be released on that date unless the authorities determine that it is appropriate, taking into account your conduct while in custody. So it is important that you make an effort to ensure that the authorities responsible for release on parole believe that at the time you are first eligible for it, that it is appropriate to release you. Otherwise you will continue in custody until such time as they do or at least up until the balance of term expires.

Amendments 01 September 2020 - Instructing solicitor's name added to cover sheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 September 2020

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Judgment (12 paragraphs)

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Cases Cited (4)