Regina v Zhang

Court of Criminal Appeal (NSW)|2004-09-30|Before: Wood CJ, Hislop J, Smart AJ

CITATION : Regina v Zhang [2004] NSWCCA 358 HEARING DATE(S) : 30/9/04 JUDGMENT DATE : 30 September 2004

JUDGMENT OF : Wood CJ at CL at 1, 34; Hislop J at 32; Smart AJ at 33 DECISION : 1. Leave to appeal granted; 2. Sentence imposed below quashed and in lieu thereof the Applicant be sentenced to a term of imprisonment for seven years, to date from 19 August 2002 ; 3. Non parole period of four and a half years set, to date from 19 August 2002, and to expire on 18 February 2007.

CATCHWORDS : CRIMINAL LAW - appeal against severity of sentence - malicious wounding with intent to inflict grievous bodily harm - plea of guilty - whether insufficient consideration was given to the extent of provocation involved - appeal allowed. LEGISLATION CITED : Crimes Act 1900 - s 33 Crimes (Sentencing Procedure) Act 1999 - s 21A(3) Regina v Doorey [2000] NSWCCA 456 Regina v George [2004] NSWCCA 247 R v Mioduszewski [2004] NSWCCA 154 CASES CITED : Regina v Morgan (1993) 70 A Crim R 368 Regina v Rothapfel NSWCCA 4 August 1992 Regina v Trevenna [2004] NSWCCA 43 Regina v Watt NSWCCA 2 April 1997 Siganto v The Queen (1998) 194 CLR 656 PARTIES : Regina Shuzhi Zhang FILE NUMBER(S) : CCA 2004/1863 COUNSEL : D Frearson SC G D Wendler SOLICITORS : S Kavanagh S E O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0119 FILE NUMBER(S) : LOWER COURT Taylor DCJ JUDICIAL OFFICER :

8 - IN THE COURT OF CRIMINAL APPEAL 2004/1863

WOOD CJ at CL HISLOP J SMART AJ

Thursday 30 September 2004 Regina v Shuzhi Zhang Judgment 1 WOOD CJ at CL: On 11 December 2003, the Applicant was sentenced by Taylor DCJ to a term of imprisonment of eight years with a non parole period of five years, each to date from 19 August 2002, for an offence of malicious wounding with intent to do grievous bodily harm. He had pleaded guilty to this offence on the date fixed for his trial, and his plea was then accepted by the Crown in full satisfaction of an indictment that had initially charged him with wounding with intent to murder. 2 Appropriately his Honour accepted that, in circumstances where the plea had been offered following discussions with the Crown as to the appropriate charge, it should be regarded as an early plea. A discount of twenty per cent was given for that plea and for the contrition which had been displayed by the Applicant. 3 Special circumstances were found resulting in the non parole period being equivalent to 62.5 per cent of the term of the sentence, as the sentence was ultimately structured. 4 The sole ground of appeal is that in the particular circumstances of the case, the starting point of ten years before the discount for the plea and contrition was manifestly excessive.

5 There was a clear conflict between the versions which had been given by the Applicant and by the victim as to the events which preceded the offence, which his Honour was unable entirely to resolve. 6 So far as it was common ground, it was shown that the Applicant was a Chinese national who had been involved in business dealings with the victim. As a result of those dealings, the victim, who lived in this country, owed the Applicant money for furniture which had been supplied to him. 7 The Applicant, during the course of a visit to Australia, arranged to meet the victim. He was thereafter allowed to stay with the victim at his home. There were discussions over the ensuing days, in relation to the business dispute, but it appears that they were entirely amicable. 8 On the night of 9 August 2002, however, there was a distinct deterioration in the relationship. The victim asserted that at about 7.30pm the Applicant approached him from behind, without warning, and placed a leather belt around his neck, pulling it tight. He said that the Applicant then slashed at his throat and face with a knife. He said that he managed to disarm the Applicant and was able to take possession of the knife and belt himself. 9 According to the victim he was then pursued outside by the Applicant, who had armed himself with a meat cleaver. There was a further struggle, in the course of which the victim said that he defended himself with a knife and belt, while the Applicant struck at him with a meat cleaver. 10 After fleeing from the premises to the street, the victim said that he was pursued by the Applicant, who still had the meat cleaver. There was a further confrontation in which he again attempted to defend himself from the Applicant's onslaught with the cleaver, but in the course of that his face was slashed. 11 The Applicant's evidence placed a somewhat different complexion on the course of events. On his account discussions had been taking place at the house as to whether the victim had been employing illegal immigrants and avoiding income tax, which were followed by a threat to the victim from the Applicant to report him to the authorities. 12 As a result, the Applicant became very upset, causing him to think that a fight was imminent. He took off his belt and held up his right hand. The victim produced a knife and there was a quick exchange, in the course of which he struck his head on the wall, and felt a pain underneath his left arm. He agreed that he then ran to the kitchen and picked up a meat cleaver, at which point the victim backed off. 13 His Honour observed, in his reasons for sentence, at this point: "Again, for reasons that I will identify, it becomes very difficult to precisely know what happened. The prisoner said his mind went blank, the victim left the premises and the prisoner said that he went insane and chased him and tried to hurt him, and he chased the victim down the street. The victim slipped and fell, the prisoner caught up with him and struck him with the cleaver. He said he did not understand why he was in that state. After he inflicted the wound he came to his senses and put the cleaver down. He said to the victim, 'You have ruined my entire life.' He doesn't know what he did with the belt. He said at the restaurant they had drunk two bottles of beer, that he had not been drinking for some considerable period of time because of his cancer. He said that he was very weak and his mind was not clear. He said he did not try to hurt the victim in the house. He couldn't remember pulling him down, and there had been a struggle. He admitted to striking the victim in the face. The wounds were very serious. The prisoner agreed that when the attack occurred which resulted in the serious wounds the victim was walking away and that he had chased him."

14 His Honour also observed: "When the prisoner gave evidence he appeared frank, giving a genuine account of his recollection. He did not appear to be trying to minimise his conduct but rather after considerable reflection he still can not understand how he came to react in the way that he did. He said that he became 'insane', that he lost control and that his head 'swelled'. I carefully listened and watched him give his evidence and accept that he was doing his best to tell the truth."

15 His Honour later said: "Having accepted the prisoner's evidence as to what took place in the house, which is supported by the finding of some of his blood in the kitchen and the wounds to his hands, I have concluded that it is very difficult to reach a finding beyond a reasonable doubt as to quite what transpired between the two men in the house. What is very clear is that the offender's conduct when leaving the house and chasing and assaulting the victim, is totally unjustified. It is partly understood by the fact that there had a short time before been a struggle involving a knife being produced by the victim." 16 As a result of these events, the victim suffered a very serious wound, involving a large and deep gash to the left side of his face, which cut through to the bone and chipped the maxillary alveolus. He also suffered bruising to his neck, which is evident from the photographs, and a slash wound to the right side of his face, which needed suturing. He lost a number of teeth as a result of the attack, and he has been left with a significant scar, which extends over the entire left side of his face, as well as nerve damage in this area. 17 The Applicant suffered knife wounds himself, which were inflicted to his left side, his left arm and his right palm, which required suturing. He also suffered a punctured lung. 18 Appropriately, his Honour described the blow by the Applicant with the cleaver outside the premises as "horrendous". Equally appropriately, in assessing the degree of objective criminality involved, he took into account the extent of the injuries, the very high degree of violence involved (see Siganto v The Queen (1998) 194 CLR 656 at para 29), and the fact the Applicant had "chased the victim down the street before inflicting terrible injury upon him." 19 The circumstances in which such an attack occured, that is, when the victim was fleeing, was a matter properly to be taken into account in assessing the objective criminality involved (see Regina v Watt NSWCCA 2 April 1997). 20 As to the aspect of premeditation his Honour found that: "... this crime is one that arose in the context of a serious dispute between the prisoner and the victim. They were living in the same premises and their proximity in the context of the underlying dispute between them was a dangerous mix. From the sudden violent outburst on the prisoner's behalf it appears that there was no intention to inflict the injuries until the fight between them broke out." 21 This finding was open on the evidence, and it was also of relevance for an assessment of the Applicant's objective criminality, both in terms of the degree of provocation involved and the extent of pre-meditation or planning. Clearly the attack was impulsive and not pre-planned. 22 Subjectively his Honour took into account the following circumstances:

(a) The Applicant's usual place of residence is China, where he lives with a wife and one child. By the time of the sentence and sentencing he was an unlawful non citizen as far as this country is concerned. He is liable for deportation at the expiry of the sentence.

(b) He was aged forty years at the time of the offence.

(c) He had a university education, he had lectured at university and he had established a furniture business, which included exporting goods to Australia.

(d) The purpose of his visit to Australia had been to settle accounts with the victim and to explore some business opportunities.

(e) He had undergone successful surgery in 2001 for stomach cancer.

(f) He does not speak English and he has no relatives in Australia nor has he received any visits. As a consequence he has been isolated while in custody and lacks any support base.

(g) He had no prior convictions and was of previous good character.

(i) He was remorseful and accepted responsibility for his actions.

23 The Applicant does not seek to challenge any of those findings. He points, first, to the circumstance that a number of the mitigating factors identified in s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 were present. Clearly he is correct in that submission. Second, while acknowledging that the use of violence was an aggravating feature, it was submitted on his behalf that the sentence was manifestly excessive, in the light of the circumstances that the assault was not pre-meditated but had occurred in response to powerful provocative behaviour, on the part of the victim. 24 Those circumstances were taken into account by his Honour but whether they were appropriately taken into account is a matter that does require consideration. 25 Although accepting, as this Court has repeatedly observed (e.g. Regina v Morgan (1993) 70 A Crim R 368, Regina v George [2004] NSWCCA 247 and Regina v Trevenna [2004] NSWCCA 43) that trawling for comparison with other decided cases is not always helpful, Counsel for the Applicant did try to draw comfort from the sentence of six years, with a non parole period of four years, that had been passed in the case of R v Mioduszewski [2004] NSWCCA 154. An appeal against severity was dismissed by this Court. That was a case in which the offender had discharged a shot with a small pistol at the head of his estranged wife, and had then assaulted her repeatedly about the head with a lamp stand. 26 Reference to this case, in my view, demonstrates the futility of any attempt to gauge manifest seriousness by reference to a single decision, which forms but part of a range of cases which often possess wide differences in their objective and subjective circumstances. 27 It was, in fact, a case where the offender was a sixty-nine-year-old man who attempted suicide after committing the offence. At the time of his arrest, he was hospitalised and diagnosed as being mentally unwell with psychotic features. By the time that he appeared for sentence he was again assessed as suffering from a level of stress that amounted to a mental disorder. It was this disorder that was found to have caused him to lose control at the time of the offence. Moreover, his physical condition had deteriorated, while waiting for sentence, insofar as he had a number of medical conditions, including a serious heart condition which had called for surgery. These conditions, the sentencing judge found, would have made his time in custody more difficult than for an ordinary prisoner. I am not persuaded that very much, if anything at all, can be gained by reference to this case. 28 The present offence was one where the maximum available penalty under s 33 of the Crimes Act 1900 was one of imprisonment for twenty-five years, in itself an indication of the seriousness with which it is regarded. 29 The attack was particularly serious and the abhorrence which the community holds in relation to the use of knives, that was referred to in Regina v Rothapfel NSWCCA 4 August 1992 and Regina v Doorey [2000] NSWCCA 456 is, if anything, compounded in the case of a meat cleaver or machete, having regard to the terrible wounds which can be inflicted with such weapons. The present was a case where a very bad wound was inflicted and the objective criminality was serious. 30 However, after reflection, I have come to the view that insufficient consideration was given to the extent of the provocation involved, or to the favourable subjective circumstances, such that a lesser sentence was warranted in law and should have been passed. 31 I would grant leave to appeal. I would propose that the sentence imposed below be quashed and that in lieu thereof the Applicant be sentenced to a term of imprisonment for seven years, to date from 19 August 2002. I would set a non parole period of four and a half years, to date from 19 August 2002, and to expire on 18 February 2007, that being the earliest parole release eligibility date. 32 HISLOP J: I agree. 33 SMART AJ: I also agree. 34 WOOD CT at CL: The order of the Court will, therefore, be as I have proposed.

Last Modified: 10/18/2004 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.

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