Zheng v R

Evidence of prior incidents

1. The applicant gave evidence of six prior incidents when the complainant physically assaulted her. Police had attended the Auburn house on four occasions, which were the subject of COPS reports. The complainant agreed that police had come to the Auburn house about three or four times because of complaints about raised voices. He described the arguments as "basically just oral arguments, nothing serious". Addressing the incidents chronologically, the evidence of the applicant and the complainant, and Mr Zhang and Mr Liu was as follows.

11 November 2013

1. On 11 November 2013 the applicant and the complainant had an argument in the carpark of Auburn Shopping Centre following her querying the complainant about a telephone bill; she had suggested to the complainant that he had been telephoning another female person. A passenger in another car saw the incident and contacted police.
2. The applicant's evidence was that when sitting in the car the complainant started hitting her, that he was driving and "he punched me on my face" and "he kept hitting me on my face". The applicant received a phone call from her son who told her that the police were at their home. The complainant told her not to say anything to the police when they got home. When she got home the police were there, but she could not recall speaking to them.
3. In cross-examination, when it was put to the applicant that she told police that there was nothing wrong and there was no assault, she responded, "I don't - I don't remember". When pressed that it was not true that the complainant hit her whilst driving the car, the applicant disagreed and said this was the truth.
4. The complainant denied hitting the applicant while parked in a car at Auburn Centro parking centre. He also denied that his stepson, Mr Zhang, called him and told him to come home because police were looking for him. His evidence was that he reported the argument to police and then they did not turn up and he left and went out. The complainant agreed that police had come to the Auburn house four times and his stepson had translated for the police. He denied telling his stepson to tell the police that nothing happened, he said "[w]e - we just told the truth".
5. The COPS entry for 11 November 2013 records that police spoke with the applicant and the complainant independently of each other with the assistance of a telephone interpreter; neither party disclosed fears for their safety; the argument became heated due to the complainant's gambling habits; and the applicant stated that she is an angry person and was very angry. Both parties stated that there was no assault and refused to supply police with a statement. The witness gave no further details than he saw only what looked to be a male and female fighting.

14 September 2014

1. The applicant and the complainant were in their car at the front of their house in Auburn when an argument began. According to the applicant, after the complainant had come home from work and had a shower, he received a phone call and indicated that he wanted to go out. She tried to stop him, but the complainant ignored her and went to the car. The applicant followed and got into the driver's seat and the complainant started punching her while she was sitting in the car. She said she was holding onto the steering wheel and the complainant "started hitting me - hitting my hands". She said that the complainant was hitting her on her head, face, and arms, and that "he was still hitting me when I actually saw the police vehicle arriving". When the police attended the Auburn house the applicant told police there was a verbal argument however it never became physical. She said she didn't say anything because the complainant told her not to say anything happened.
2. In cross-examination, when it was put to the applicant that she told police that it was a verbal argument and never became physical (as recorded in the COPS entry), she said that was because she was worried that the police might take her husband away. When asked would not that have been of assistance to her if the complainant had been assaulting her, the applicant said that "[w]ell, he is the father of my son, after all".
3. The complainant agreed that they argued with "raised voice" during the argument in the car about his gambling and taking money from the mortgage. He denied that whilst driving before parking, he punched the applicant in the head three time. In response to whether he told the applicant to tell the police nothing happened, the complainant answered, "[w]e basically had nothing. We only argued, and someone else reported to the police" and "we argued at home just like this, verbally".
4. The COPS entry for 14 September 2014 records that when police attended the Auburn house the applicant stated that there had been a verbal argument, however it never became physical. The entry also recorded that the applicant did not have any injuries to her person, and the informant who had contacted police stated that he thought the applicant was being physically assaulted, however, he could not be sure.

2016

1. The applicant gave evidence of an incident, not reported to police, which she said was witnessed by a then tenant of the Auburn house known as Ms Wang. The applicant said that the complainant hit her and punched her when she was in the hallway of the house. She said it was rather serious, some heavy punches, and one of the tenants saw what happened. Ms Wang did not attend the trial to corroborate the applicant's evidence.
2. The complainant was not specifically cross-examined by defence counsel about this alleged incident.

Early 2017

1. The applicant gave evidence of receiving a phone call from an employee at Westpac in early 2017 informing her that the mortgage repayments were in arrears. The complainant was standing close to her and listening to the conversation. The applicant said, "he punched me on my face, on my hand where I was - which I was holding the phone". She told the complainant to "stop doing that to me", and the female person on the telephone call suggested that she call the police. The complainant responded, "[d]on't call the police", and the applicant told the person she was speaking to on the telephone, "[t]hat's alright, nothing happened". The applicant said she did this because the complainant said, "[d]on't call the police".
2. The complainant gave evidence that he did not know about a lady from the bank telephoning the applicant about arrears on the mortgage. He denied getting angry and punching the applicant once in the head while she was on the phone to the lady or remembering the woman from the bank telling the applicant to call the police. He said, "we just verbally argued".

23 January 2017

1. Following an incident at the Auburn house on 23 January 2017, Mr Liu and Mr Zhang took the applicant to Auburn police station on 24 January 2017 to make a report. The applicant gave evidence that when she saw Mr Liu the "next morning", he asked what happened as she had "a bruise on my face and on my arm". She told him that they were having an argument about the complainant not looking after the family, and that it became physical. She said it was Mr Liu's idea to go to the police.
2. The Crown indicated to the trial judge that it would not cross-examine the applicant about this incident on the basis that it objected to this evidence being led and the matter had been determined in the Local Court.
3. As noted, Mr Zhang gave evidence that there had been an argument the night before, which resulted in an "injury on my mum": see at [59] above. Mr Liu gave evidence that the applicant told her the complainant had hit her but had only "vague memories" and couldn't recall the detail of any red marks and swelling on the side of the applicant's face: see at [66] above.
4. The complainant denied hitting the applicant. He said, "we were pushing each other". He agreed that he attended the police station on 24 January 2017 following receipt of a text message from police. He also agreed he saw red marks on the applicant's face that day. He said he did not know what had happened and that he did not hit the applicant.
5. The COPS entry dated 24 January 2017 records an argument about mortgage repayments and gambling, that the complainant became aggressive towards the applicant and punched her with his right clenched fist towards the left side of the face, connecting with the cheekbone. The complainant was charged with common assault. The charge was dismissed following a hearing at Burwood Local Court on 10 March 2017 at which the complainant represented himself and cross-examined the applicant. An apprehended violence order was made against the complainant to protect the applicant.

19 February 2017

1. The applicant gave evidence of an argument with the complainant in February 2017, which escalated to the point of her being assaulted by the complainant with a closed fist, three or four times. She said police attended the Auburn house in response to a call by someone; she did not remember who called the police. The applicant said that the complainant told her son, Mr Zhang, to tell the police that nothing happened.
2. When it was put to the applicant in cross-examination that Mr Zhang was in the room at the time of this argument and he called police because he was concerned that neighbours might hear it, the applicant said, "I have no idea about this matter".
3. The complainant did not recall the incident, incorrectly referred to by defence counsel as occurring on "19 January 2017", when the stepson called the police who attended the Auburn house "that morning". When it was put to the complainant that he told Mr Zhang to tell the police nothing had happened when they attended the Auburn home, the complainant answered, "[w]e, basically, had no problem. We only had verbal arguments. We tell them the truth".
4. The COPS entry for 19 February 2017 described the complainant as the "victim", the applicant as the "person of interest", and Mr Zhang as the "witness". The entry records that the applicant had approached the complainant at home and demanded that he pay child support, which he refused, causing a verbal argument. The argument became loud causing Mr Zhang to contact police as a precautionary measure as he did not want the neighbours to hear the commotion. On arrival, police spoke to Mr Zhang as neither the applicant nor the complainant spoke English. Both confirmed the same version, that no threat / physical altercation took place, which was also corroborated with Mr Zhang. The COPS entry recorded that no further police action was required.

Dr Ashkar's evidence

1. The applicant tendered a report from Dr Ashkar dated 23 May 2019. He had interviewed the applicant on 18 January 2019 and recorded the applicant giving a history estimating up to 20 occasions of physical assault by the complainant, sometimes to the head causing her to become dazed and confused, but with no loss of consciousness and no medical intervention. Dr Ashkar agreed in cross-examination that the applicant was unable to give any further specific details.
2. Dr Ashkar assessed the applicant's intellectual functioning in the low range, specifically the 10th percentile. He expressed the opinion that there is no suggestion from the applicant's account of the abuse or from neuropsychological testing that the applicant suffered brain damage or permanent cognitive impairment from the abuse, however she may have been concussed from the repeated blows to the head at the time of the alleged offence.
3. In response to specific questions, Dr Ashkar gave the following answers (emphasis in original): 5. What are the psychological consequences faced by a person such as Ms Zheng who had been subjected to prolonged and repeated physical and/or verbal abuse from Mr Pan over many years? The individual response to prolonged and repeated abuse is idiosyncratic and variable but commonly includes learned helplessness (ie, a response to having been exposed to painful stimuli over which one has no control and finding that no avenue readily exists for escape), lowered self-esteem, impaired functioning (including an inability to engage in problem-solving and planned behaviour), fear and terror, anger and rage, and hyper-vigilance to danger. … 7. Is it likely that Ms Zheng believed on reasonable grounds that there was no other way to preserve herself or her son from death or serious bodily injury other than by acting the way she did by stabbing Mr Pan? Given her mental state at the time of the alleged offence, it is possible that Ms Zheng believed there was no other way to preserve herself or her son from death or serious bodily injury other than acting the way she did by stabbing Mr Pan (and I note from the draft of the Crown Statement of Facts that Mr Pan threatened to kill her at that time). 8. Could Ms Zheng's cognitive functioning and mental state at the time of her interview with the police account for why she did not mention her history of prolonged and repeated physical and/or verbal abuse from Mr Pan? Ms Zheng's thinking and judgement were likely impaired by her heightened emotional state (and possibly shock) during police questioning and this may very well account for her lack of disclosure of her history of abuse to the police at that time. Cultural factors (e.g. shame) may also explain her lack of disclosure of her history of abuse at that time.
4. In his oral evidence-in-chief, Dr Ashkar was asked of his understanding of the expression "battered wife syndrome", which he described as the constellation of symptoms that a person may develop if they have been exposed to repeated physical, verbal, emotional and psychological abuse within a relationship. He was not asked to express any opinion about the applicant in this regard.

The trial judge's findings and conclusions

1. No complaint is made in relation to the directions of law which the trial judge gave herself, including the Liberato direction (Liberato v The Queen (1985) 159 CLR 507 at 515; [1985] HCA 66).
2. Addressing the tendency evidence, the trial judge said: I should bear in mind that this is just one part of the evidence relied upon by the accused. I should give it what weight I think it deserves in the context of all of the evidence before me. Subject to my other directions, particularly those as to lies as to credit and context, the evidence of other acts must not be used in any other way. That is not the purpose of the evidence being placed before me and I must not reason in that way. I cannot use it in any way against the complainant, unless I accept the accused's argument that it discloses a tendency and therefore makes it more likely that the accused did not commit the offences charged against her. Even if I accept that the complainant has a tendency to act in a particular way namely: one, to physically and mentally abuse the accused; two, to demand that the accused deny that any abuse had occurred when questioned by police; three, to make threats to the accused that if she reported his abuse to the police such threats would include making sure that she would lose custody of their son or that he would take her back to China, I need to consider whether or not he acted in a particular way on the evening of 4 June 2017.
3. The trial judge accepted there may well have been prior arguments between the complainant and the applicant but did not accept the degree of physicality contended by the defence, giving the following reasons for not drawing the conclusion from the objective evidence that the complainant had a tendency to act in the way the defence case contended: The Crown submitted at its highest, so far as the Crown can discern from the evidence the defence rely on, the following incidents in support of the asserted tendencies. The Crown then goes to the COPS entries and the two other incidents. I have referred to these in the chronology, but I will repeat them.
4. After summarising the COPS entries, the trial judge continued: As was clear from the evidence of Mr Pan, he rejected each allegation that was put to him about each of these asserted tendencies. The fact that police have attended on occasions was not the subject of dispute, however the allegations that were levelled at Mr Pan in cross-examination about what he did on each of these occasions was disputed and he rejected them. When the accused was cross-examined about these occasions, she was cross-examined about the fact that the records of police do not indicate that she had been assaulted on these occasions. The tendency evidence is disputed and there is little support for it. There are no medical records; the police were not informed of the detailed allegations of Mr Pan doing anything like the accused gave evidence of, except on one occasion when it went to court. I would not accept that the evidence as it emerged in the trial supports the asserted tendencies in the defence notice. Certainly, there was no evidence from the accused of the alleged 20 occasions that she told Dr Ashkar about. … In her submissions, Ms Walsh, with transcript references, said the evidence of the complainant, Mr Pan, [that] the arguments between him and the accused were only ever verbal and never physical was implausible and should not be accepted. The evidence of Jia Hao Zheng of Pan repeatedly telling him to tell the police that nothing happened, and Zheng hearing Pan tell the accused that nothing happened must be accepted as the Crown never challenged Zheng about this evidence as required by Browne v Dunn. The evidence of Jia Hao Zheng that sometimes he saw what had happened and sometimes he did not must be accepted as he was never challenged as to this evidence, as required by Browne v Dunn, by the Crown and having seen his father Pan assault the accused. I accept there may well have been prior arguments, but I do not accept the degree of physicality contended by the defence. The Crown, as I said, notes the entries; what is noted is six alleged occasions between 11 November 2013 and 19 February 2017, a period of in the order of three years and three months. There is no indication of when these other matters raised by the defence took place, although of course they would have had to have been before 19 February 2017. I am not satisfied that he had a tendency to physically and mentally abuse the accused, nor to demand that the accused deny that any abuse had occurred when questioned by police or to make threats to the accused that if she reported his abuse to the police such threats would include making sure that she would lose custody of their son or that he would take her son back to China. There were, clearly, arguments, heated arguments. I am prepared to accept that her ex-husband said to deny to the police that any abuse had occurred or to make threats to the accused that if she reported, what I do not see as abuse, but the heated verbal arguments, that she would lose custody of their son or that he would take her son back to China. The difficulty is that there is absolutely no precision as to when these events occurred. Having come to that view I cannot, from what the objective evidence is, draw the conclusion that the complainant being the victim had a tendency to act in that way. (Emphasis added.)
5. Turning to the evidence of Dr Ashkar, the trial judge explained her approach to conflicting facts or assumptions underlying his opinion: If the opinion is based upon facts which I am satisfied have been proved or assumptions that I am satisfied are valid, then it is a matter for me to consider whether the opinion is based upon those facts or assumptions is correct. On the other hand, if I decide that the facts have not been proven or the assumptions are not valid, then any opinion based upon them is of no assistance because it has no foundation. If that is the case the opinion should be disregarded.
6. Referring to the Crown submission that, at best, the applicant described five or six occasions of being assaulted by the complainant, four relating to the COPS entries and the occasions of the applicant speaking to the bank officer (at Westpac) and the occasion when an earlier tenant, Ms Wang, apparently saw something (in 2016), the trial judge found: The accused was not able to provide specific details of the occasions when she was assaulted in the history recounted to Dr Ashkar. Dr Ashkar reported no evidence of brain injuries. Dr Ashkar asserted cultural reasons for particular conclusions he draws and acknowledged that it was not scientifically based, but rather anecdotally based.
7. The trial judge rejected the defence submission that the applicant was suffering "Battered Woman Syndrome", finding that Dr Ashkar did not make a conclusion or a finding expressing his view that the applicant was suffering from any kind of clinical or psychological condition known as Battered Woman Syndrome. The judge found that when considering the applicant's demeanour during her recorded interview with police and when giving evidence, Dr Ashkar's evidence was of "minimal weight", giving the following reasons: Returning to the evidence of Dr Ashkar, Ms Walsh emphasised the importance of his evidence and its importance when considering the demeanour of the accused during the ERISP and whilst giving her evidence. I have considered the submissions of both sides of the bar table in respect of Dr Ashkar that I have considered earlier in this judgment. I do not completely disregard his opinion, bearing in mind what I have just said and have said earlier about what the defence contend its relevance is. I, however, give it minimal weight.
8. After giving herself directions at law concerning "self-defence" as to which no complaint is made, the trial judge summarised the Crown and defence cases, including the conflicting evidence of the complainant that he was holding JP with both arms, whereas the defence case was that the complainant was holding JP by one arm, and he was using the other arm and hand to punch the applicant or strike the applicant and ultimately, to grab her by the throat, and just before the stabbing she was being held round the neck and was being choked.
9. The trial judge's principal factual findings, leading to the finding that the applicant was guilty of the alternative count 2, are encapsulated in her reasons for accepting the complainant's evidence beyond reasonable doubt and rejecting the applicant's evidence beyond reasonable doubt. With respect to the complainant's evidence, the trial judge found: Applying all of these directions and giving full consideration to the submissions and to the evidence I accept the account of Mr Pan beyond reasonable doubt. I note on the account given by Mr Pan that there was no act of self-defence on the part of the accused in relation to herself or in relation to her son JP. This I accept beyond reasonable doubt. The stabbing took place between about 7 and 7.30 or thereabouts on 4 June 2017 and he was interviewed on 7 June 2017 in the hospital at Westmead, the interview finishing at about 11.30, not too long after the stabbing. The evidence is summarised by the Crown in his submissions at p 5. In summary it is the Crown case that Mr Pan returned home and that evening was confronted by the accused, who began arguing with him about the mortgage. He submitted that the evidence of David Liu and Jia Hao Zang supports this aspect of the events. Mr Pan has retrieved the youngest son from the room he shares with his older brother and that it was at about this point that the accused scared Mr Pan with scissors. It was after this which occurred in the lounge area and after the argument continued to the kitchen, Mr Pan gave evidence that he kept moving to get away from the accused who persisted in arguing with him. Mr Pan was in the hallway when he says he was stabbed. Mr Crown noted it does not appear to be in dispute that the place where Mr Pan was lying on the floor was indeed the spot marked on exhibit B by Mr Liu, which was confirmed by other witnesses that saw Mr Pan on the floor there. Mr Pan gave evidence throughout that he had held his six year old son with both his arms and rejected the suggestion that he was able to have one of his arms free to attack the accused. The accused said JP was not holding his father around the neck while being held during this argument. I reject the account of the accused beyond reasonable doubt. The defence case is briefly summarised, indeed very briefly, at p 6 of the Crown's submissions. In summary, it is the defence case as the evidence was given by Ms Zheng, the accused, that as asserted in her evidence that she was attacked repeatedly by Mr Pan, even though on her own account Mr Pan had placed the youngest son between them and only had a single hand free, and the accused gave evidence of repeated blows to the face and head and choking including being choked immediately prior to being stabbed. As I have said, this of course is certainly only a brief summary. (Emphasis added.)
10. After summarising the defence submissions which challenged the complainant's evidence and relied upon Mr Zhang's evidence, her Honour continued as follows: … I refer now to relevant parts of the defence submissions that I have certainly taken into account. The evidence of the complainant, hereinafter referred to as Pan, that the arguments between him and the accused were only ever verbal and never physical is implausible and should not be accepted. The evidence of Jia Hao Zhang of Pan repeatedly telling him to tell the police that nothing happened and Zhang hearing Pan tell the accused to tell the police that nothing happened must be accepted as the Crown never challenged Zhang about this evidence as required by Browne v Dunn. The evidence of Jia Hao Zhang that sometimes he saw what had happened and sometimes he did not must be accepted as he was never challenged on this evidence as required by Browne v Dunn by the Crown, or having seen his father Pan assault the accused. The evidence of Pan that the accused was wielding scissors during the argument should not be accepted as he contradicts himself by saying that at no stage was he fearful and that the argument only became physical at the time of the stabbing. Pan should not be accepted on his evidence that the reason he went to get JP was because he was crying in the bedroom. The evidence of Zhang and the accused should be accepted that Pan went into the bedroom at a time that JP was not crying and he brought him out to involve him in the argument. Zhang and the accused were never challenged by the Crown about this evidence as required by Browne v Dunn. Likewise, the Crown's case that the argument was about the mortgage and finances and not threatening to take JP back to China must be rejected as Zhang's evidence about hearing this was never challenged as required by Browne v Dunn. One of the reasons that I would accept that the stabbing occurred in the kitchen is that the witness Liu and Zhang both gave evidence that they heard the noises coming from the kitchen and the accused repeatedly talks about it happening in the kitchen in her ERISP, as well as giving evidence-in-chief. It is clear from both the evidence of Pan and the accused that they were face to face, with Pan holding JP between them when the stabbing occurred. This fact is inconsistent with Pan trying to get away from the accused and her following him down the hallway with the knife before stabbing him, and the evidence overwhelmingly shows that the stabbing took place in the kitchen, not far from the entrance to the hall. Pan then walked down the hall before collapsing where he was found. Ms Walsh submitted the accused was clearly confused when she marked the floor plan and she was clearly near the table in the kitchen when the stabbing occurred, as indicated on a photo that is exhibit 4.
11. The trial judge rejected the applicant's evidence, giving the following reasons (a) the absence of evidence of physical injuries to the applicant's head, face, throat, and arms, (b) the lies the applicant told the police in her ERISP, (c) the applicant's lies to the police were not the result of matters raised by Dr Ashkar, being asserted cultural reasons for not disclosing the complainant's alleged physical and mental abuse, (d) the location where the complainant was lying relative to the applicant's bedroom and the distance from the kitchen, and (e) the applicant's conduct was to some extent a targeted stabbing, given she stabbed the complainant in a way to avoid her own child.
12. In view of their importance for ground 2, the trial judge's reasons for rejecting the applicant's evidence are reproduced in full: I have considered all of these submissions. I reject the accused's account for the reasons already noted in the course of this judgment, in particular the evidence about being attacked by Mr Pan when she sustained no injuries. Her credit is adversely impacted upon the lies she told in the interview; in fact the whole interview is in my view a sustained and calculated attempt to distance herself from the stabbing. She said on a number of occasions that she did not stab her husband. She said nothing about violence to her. She said that it was a verbal argument. She certainly said nothing about being choked. She was interviewed at 12pm on 5 June 2017. As I have noted, I do not think what she said in the interview was a result of the matters raised by Dr Ashkar; she said nothing about any physical connection made by her husband to the child, this was not contended to have happened at all. She did not call for assistance at any stage. There was other evidence that the argument went on for about an hour, although she said in the interview she did not think it was that long. I note the following in the interview: Q. Okay, you do know he has been stabbed? A. I don't know, I don't know. Q. Okay ma'am, did you stab your husband? A. No. Q. During the argument did you stab your husband? A. I don't know. Q. What do you mean by I don't know? A. No I didn't. Q. And you do not know who else did? A. I don't know. Q. Did you say sorry because you hurt him and you didn't mean to? A. I don't know. Q. Did you mean to hurt your husband? A. No. Q. Did you have a knife in your hand when you were arguing with him? A. No. Q. Did you go and get a knife? A. No. In relation to her account and indeed the victim's account, Mr Pan, Ms Zheng must have stabbed in a way to avoid her own child. It was to that extent a targeted stabbing. … The Crown said importantly that the accused gave this evidence when asked where she stabbed her husband. The accused's evidence-in-chief was that Mr Pan was stabbed and walked a couple of steps then fell to the ground. The Court has the plan of the house, exhibit B, and the video exhibit. The distance on any view when Mr Pan was found lying on the ground and where the kitchen was is more than a couple of steps. I have already said the two lies she told in the interview are matters that I consider, or have considered, in the assessment of her credibility.
13. Addressing the evidence of Mr Liu, who denied in cross-examination that he had sought money from the applicant to give favourable evidence at trial, the trial judge found: … Essentially, apart from where the objective evidence supports Mr Liu, I find his evidence problematic and give it minimal weight.
14. The trial judge proceeded on the basis that the applicant had "raised" self-defence as an issue and therefore the Crown had the onus of proving beyond reasonable doubt that the applicant did not carry out the relevant conduct in self-defence: Crimes Act, s 419. Addressing this issue, the trial judge found: In determining the issue of whether the accused personally believed that her conduct was necessary for self-defence I must consider the circumstances as the accused perceived them at the time. I repeat, I accept beyond reasonable doubt for the reasons I have stated the evidence of Mr Pan. As the Crown said, self-defence does not arise at all either of (sic) the accused or her son on this account. For completeness, I note the Crown has not failed to exclude beyond reasonable doubt that the accused was acting in self-defence in respect of both counts. I accept beyond reasonable doubt the stabbing was not done in self-defence; that the accused did not believe at the time of the act that it was necessary to do what she did in order to defend herself. Further, the Crown has proved beyond reasonable doubt the accused's act was not a reasonable one in the circumstances as she perceived them. Having taken into account in determining the issue of whether the accused personally believed that her conduct was necessary for self-defence, I have considered the circumstances as the accused perceived them at the time. As I have said, I reject the accused's account beyond reasonable doubt; I accept Mr Pan's account beyond reasonable doubt. In summary a preference for the prosecution evidence is not enough. I am satisfied beyond reasonable doubt of the prosecution evidence, in particular the evidence of Mr Pan. I reject beyond reasonable doubt the defence evidence, in particular the sworn evidence of the accused. I will add when I said the words "for completeness", although in my view given my factual findings it is not necessary, as the account given by Mr Pan does not raise in any way self‑defence. The evidence in the defence case, which of course includes the evidence of the accused, does not in my mind give rise to a reasonable doubt about guilt. I am not satisfied beyond reasonable doubt on all of the evidence the accused intended to inflict grievous bodily harm. I am satisfied beyond reasonable doubt she wounded Mr Pan and was reckless as to causing actual bodily harm to Mr Pan in the way I have directed myself concerning this element. Accordingly, I find you not guilty of count 1 in the indictment. I find you guilty of the alternative count being count 2 in the indictment. (Emphasis added.)

Submissions

1. The applicant submits that the evidence of the complainant was simply too inconsistent with other available evidence to be accepted without corroboration, pointing to six matters: 1. inconsistent evidence given by the complainant that the applicant had threatened him with scissors; 2. evidence of Mr Liu and Mr Zhang hearing arguing and something smash in the kitchen was inconsistent with the complainant trying to get away from the applicant and moving down the hall when he was stabbed; 3. bloodstains in the kitchen were consistent with the complainant being stabbed there; 4. uncontradicted evidence of Mr Zhang that JP was not crying in his bedroom was inconsistent with the complainant's evidence that he went to get JP from his bedroom because JP was crying; 5. the COPS entries and two other complaints by members of the public contradicted the complainant's evidence that he had never been physically violent towards the applicant; and 6. the evidence of the applicant and Mr Zhang contradicted the complainant's evidence that he never told the applicant or Mr Zhang to lie to police about his violence, should they ask.
2. The Crown submitted that there was ample evidence to prove the applicant's guilt in relation to count 2 of reckless wounding, describing the complainant's evidence regarding the circumstances of the stabbing as cogent and supported by other evidence in the Crown case, including the nature of the wound and its location.
3. The Crown further submitted that the trial judge had the advantage of assessing the demeanour of both the complainant and the applicant and that it was open to the trial judge to reject the applicant's evidence as to the circumstances of the stabbing and to find that the Crown had negated self-defence. The Crown said that the applicant's evidence was not supported by other evidence in the trial in crucial respects and, in any event, was implausible and self-serving.

Determination

1. It is convenient first to address the six matters relied upon by the applicant before examining the other evidence relied upon by the Crown to support the verdict.

The scissors

1. The applicant submitted that the complainant's evidence as to how the incident occurred was inconsistent because the complainant made no reference to the scissors when first asked in cross-examination to recall how the incident occurred, and this called into question the accuracy of his allegation about the scissors.
2. The difficulty with this submission is that it ignored that the cross-examination was initially directed to putting the defence case to the complainant with respect to the incident on 4 June 2017 and it was no part of the defence case that the applicant held scissors at any time during the argument on 4 June 2017. Defence counsel made plain to the complainant that, "I'm putting to you a version of events … this is what your ex-wife said happened". During this part of his cross-examination the complainant was not directly asked whether the applicant was holding scissors at some earlier time, and if so, what she did with them.
3. When asked directly, at the end of the first day of cross-examination, whether the applicant had held scissors at any point, the complainant immediately answered that she had. This was consistent with his evidence-in-chief in the DVEC recording that the applicant was holding scissors "at the beginning" when he was sitting on the couch.
4. When defence counsel suggested to the complainant on the following day that he "had left [the scissors] out of the story", he responded "because you were asking what happened later on. So, what my answer covered was what happened later on". It is explicable that the complainant had not volunteered when defence counsel was putting to him the applicant's case, the holding of scissors by the applicant at an early point in the argument. When defence counsel again challenged the complainant's explanation for not mentioning the scissors the previous day, the complainant adhered to his evidence that the applicant had at one stage held a pair of scissors as they argued.
5. Although not relied upon by the applicant, the absence of evidence about the scissors being found by the police in the kitchen or elsewhere during the search of the Auburn house on the morning of 5 June 2017 is neutral for several reasons. First, the police search of the house occurred before the scissors were mentioned by the complainant in his DVEC recording on 7 June 2017. Second, as DSC Muscat said in his evidence, whether the scissors would have been an item of interest depended on where they were found and if they had blood on them. There was no basis for inferring that the scissors had blood on them. Third, as DSC Muscat also said in his evidence, the applicant had not mentioned scissors when she was interviewed (between 12:15 am and 1:15 am on 5 June 2017) such that would make them an item of interest. Fourth, it was no part of the defence case that there were no scissors at all in the Auburn house. This was not put to the complainant, Mr Zhang or Mr Liu.
6. The applicant also submitted that it is inherently implausible that the applicant was threatening the complainant with a pair of scissors, yet at no stage was he fearful, and the argument only became physical at the time of the stabbing. This submission ignored the complainant's evidence that the scissors were not sharp, and he thought the applicant was joking when holding the scissors and saying, "I want to die with you". The effect of the complainant's evidence was that he thought the applicant was being melodramatic. There is no inconsistency between the complainant's evidence that the applicant was holding the scissors in the loungeroom, yet the complainant was not fearful.
7. Nor is there an inconsistency between the complainant's perception that his son was scared by the continued loud arguing and the complainant not being concerned for JP's safety because, he considered that the applicant "wouldn't hurt my son". The complainant's credibility was not undermined by the cross-examination on this issue.

Was the complainant trying to get away from the applicant?

1. The applicant's challenge to the complainant's evidence as to where the incident occurred relied upon two matters. First, that Mr Liu and Mr Zhang both gave evidence of hearing arguing and something smash in the kitchen. Second, the applicant gave evidence in her ERISP and evidence-in-chief that the incident occurred in the kitchen. Taken together this evidence was said to demonstrate that the stabbing took place in the kitchen not far from the entrance to the hall, with the complainant walking down the hall before collapsing where he was found.
2. The evidence of Mr Liu and Mr Zhang goes no further than what they heard occurring in the kitchen. The argument between the applicant and the complainant continued for an extended time. Their evidence does not support an inference that the stabbing occurred in the kitchen. And, as explained below, the overwhelming evidence is that the stabbing occurred in the hallway outside the applicant's bedroom, near the bathroom.
3. The difficulty with the applicant's evidence as to where and how the stabbing occurred, is that she gave inconsistent evidence on this topic both in her evidence-in-chief and in cross-examination.
4. In her evidence-in-chief, the applicant marked on the floorplan of the Auburn house a location in the hallway, although close to the kitchen, where the stabling occurred: see [86] above. Defence counsel suggested at trial that the applicant's evidence when marking of the floorplan indicated that she had misunderstood the question. This is problematic because in further cross-examination the applicant agreed that it was "about right" that she stabbed the complainant in the hallway, then said that the stabbing occurred in the hallway near the table (being a reference to the table in the kitchen), before conceding that she did not remember where it happened, and finally acknowledging that, "I myself, don't not know even know where I stabbed my husband". On a fair reading of the transcript, the applicant's evidence that the stabbing occurred in the kitchen was inconsistent and unpersuasive.
5. By contrast, the complainant gave consistent evidence as to the location of the stabbing and how it occurred. Acceptance of his evidence is supported by the following matters. First, that the complainant did not move far after he was stabbed because he was holding JP, is consistent with: (a) the applicant's evidence that the complainant "walked a couple of steps" and fell to the ground where he was found, (b) the location where both Mr Liu and Mr Zhang found the complainant lying outside the applicant's bedroom near the bathroom, and (c) the complainant's evidence that the stabbing occurred near the applicant's bedroom.
6. Second, the crime scene video of the Auburn house (Ex 1) and the photographs of the Auburn house (Ex L, photographs 10, 11, 12 and 17) corroborate the complainant's estimate of the distance from the kitchen to the applicant's bedroom near the bathroom, where the complainant said he was stabbed, as being "about the size of a room, a little bigger than that". The reasonable inference is that the distance from the table in kitchen near the entrance to the hallway to the applicant's bedroom is more than a couple of steps. This distance contradicts the applicant's evidence that the stabbing occurred in the kitchen near the table.

Bloodstains in the kitchen

1. The applicant relied upon evidence from the crime scene video (Exhibit 5) which showed a small number of blood stains on the walls of the hallway and on the kitchen floor, as being inconsistent with the complainant's evidence that he was trying to get away from the applicant and moving down the hall when he was stabbed.
2. That some bloodstains were found in the kitchen is not inconsistent with the complainant's evidence that that he was trying to get away from the applicant and the stabbing occurred in the hallway outside the applicant's bedroom near the bathroom. As the Crown correctly submitted, there could be any number of ways by which those stains came to be on the kitchen floor in that area.
3. Relevantly, there was evidence that (a) blood in the hallway near the applicant's bedroom had been cleaned, (b) blood-soaked rags were found in the bathroom, (c) the blood-stained knife that was used to stab the complainant was found by the police in the kitchen cupboard with its cover on it, and (d) Officer Weldon gave a written statement that there "were some partial pattern elements in the bloodstains" found on the floor in the kitchen. To the extent some blood stains were observed on the kitchen floor and in the hallway, the reasonable inference is that they were the result of the process of cleaning up of blood in the hallway, or the blood-stained knife being placed in the kitchen cupboard.
4. The applicant submitted that there was a further inconsistency in the complainant's evidence as to how precisely the stabbing occurred as both the complainant and the applicant gave evidence that they were facing each other, with the complainant holding JP between them, however, the complainant also gave evidence of trying to get away from the applicant and the applicant followed him down the hallway with the knife before stabbing him.
5. It is not in dispute that the complainant and the applicant were facing each other when the stabbing occurred. The complainant gave evidence that although he was trying to get away from the applicant, the argument continued in the hallway. The complainant described the applicant as being "very angry" and as having followed him and in front of the bathroom, stopped and "[t]hen the argument goes on here, and then the stab": see [39] and [49] above. That is, the complainant and the applicant were facing each other when arguing in the hallway at the time of the stabbing. There was no inconsistency in the complainant's evidence as to how the stabbing occurred.

Was JP was crying?

1. The applicant's submission, relying on Mr Zhang's evidence, ignored that Mr Zhang did not give uncontradicted evidence that JP was not crying when the complainant collected him from his bedroom. As noted, when first asked by defence counsel as an open question, "[w]as [JP] crying when [the complainant] came into the room and took him away?", Mr Zhang answered, "[y]es", whereas on the following day Mr Zhang agreed with a leading question by defence counsel that, "it's only after your father (sic) came and got [JP] and they started arguing about his custody that he started crying".
2. The reliability of Mr Zhang's evidence on this topic was undermined by the inconsistency in his evidence. By contrast, the complainant was not challenged in cross-examination on his evidence-in-chief that JP was crying when he went to his bedroom to get him.

Was the complainant previously physically violent?

1. The applicant submitted that the complainant's evidence that he had never been physically violent towards the applicant was contradicted by the evidence of the four COPS entries, two complaints by members of the public regarding his violent conduct towards the applicant, and the evidence that Mr Zhang witnessed violence and Mr Liu had taken the applicant to the police station to report an incident.
2. The applicant's reliance on three of the COPS entries is misplaced. The COPS entries for 11 November 2011, 14 September 2014, and 19 February 2017, record that the applicant and the complainant both confirmed to the police that the arguments were only verbal, not physical. Further, the entry for September 2014 expressly recorded that police noted the applicant did not have any injuries to her person, which was inconsistent with the applicant's evidence that the complainant was punching and hitting her on her head, face, and arms. Nor do the entries for November 2011 and February 2017 record any observation by police of the injuries to the applicant consistent with the applicant's evidence of being punched and hit in her face (November 2011), or assaulted with a closed fist, three or four times (February 2017).
3. The reliability of the applicant's evidence was also undermined by her inconsistent evidence about the alleged February 2017 incident, stating in cross-examination that she had no idea about this matter when it was put to her that Mr Zhang was in the room at the time of the argument between her and the complainant and he called the police because he was concerned that neighbours might hear it. Further, the COPS entry for February 2017 describes the complainant as the victim, the applicant as the person of interest and Mr Zhang as a witness, which is consistent with the applicant having abused the complainant during the argument and Mr Zhang called the police. It is inconsistent with Mr Zhang making a report to the police of observing the applicant being assaulted with a closed fist three or four times, as she claimed in her evidence. Nor did Mr Zhang give evidence corroborating the applicant's claim that she was assaulted by the complainant during the February 2017 argument.
4. As to the significance of the reports to police by two members of the public in November 2011 and September 2014, the COPS entries for those incidents are lacking in detail as to what they observed. The entry for November 2011 recorded that the witness gave no further details than that he saw only what looked to be a male and female fighting. The entry for September 2014 recorded that the informant refused to supply any further details to police.
5. The applicant's evidence of the alleged incident in the hallway in 2016 when she said that the complainant hit her and punched her was not corroborated by Ms Wang, the alleged witness to the incident, as she did not give evidence. Further and importantly, defence counsel did not specifically cross-examine the complainant about this alleged incident.
6. The applicant's evidence of the alleged incident in early 2017 during a phone call from an employee at Westpac was also uncorroborated. The complainant denied in his evidence that he punched the applicant on her face and hand while she was holding the phone and did not recall the bank officer telling the applicant to call the police, as the applicant claimed had occurred. There was no evidence that Mr Zhang or Mr Liu observed injuries to the applicant relating to this alleged incident.
7. Turning to the COPS entry for 24 January 2017, this recorded the applicant's report to police that she had been punched by the complainant in the left side of the face the previous night. Evidence of red marks observed on the applicant's face was given by the applicant. The complainant agreed in cross-examination that they were pushing each other on this occasion, and he saw red marks on the applicant's face the next day, although he denied hitting the applicant. Mr Zhang gave evidence that he observed the applicant's face was swelling the next day, and Mr Liu gave evidence that the applicant told him she had an argument with the complainant who had hit him. However, he had only "some vague memories" and could not recall the detail of any red marks and swelling on the side of the applicant's face.
8. Other than the January 2017 incident, the evidence of the other incidents does not cause me to have a doubt as to the complainant's evidence concerning the earlier incidents which the trial judge should have shared. With respect to the January 2017 incident, the Crown did not submit that any issue estoppel arose from the circumstance that assault charge against the complainant in respect of this incident was subsequently dismissed in the Local Court in March 2017. That is consistent with authority that the doctrine of issue estoppel as it has developed in civil proceedings is not applicable to criminal proceedings: Rogers v The Queen (1994) 181 CLR 251 at 254 (Mason CJ), 278 (Deane and Gaudron JJ).
9. As already noted, the applicant made a relatively contemporaneous report to both Mr Liu and Mr Zhang on the morning following the January 2017 incident that she had been punched by the complainant. Mr Zhang corroborated the applicant's evidence of that report and gave evidence of observing the applicant's face swelling the next day. Mr Liu also corroborated the applicant's evidence of that report, however, he could not recall the details of any red marks and swelling on the side of the applicant's face. Though the complainant denied hitting the applicant, he accepted there was pushing during this argument and also observing red marks on the applicant's face the next day.
10. In my view, the weight of the evidence relating to the January 2017 incident supports the view that the red marks observed on the applicant's face were not because of some accident or self-inflicted injury unrelated to the complainant's actions. The evidence is such that, notwithstanding the dismissal of the assault charge in the Local Court, I have a doubt as to the credibility of the complainant's evidence denying that he punched the applicant during the argument on 23 January 2017. The significance of this doubt about one aspect of the complainant's evidence, is addressed below after considering the balance of the applicant's submissions and the other relevant evidence at trial.

Did the complainant tell the applicant and the stepson to lie to the police?

1. The applicant submitted that the complainant's evidence that he never told the applicant or Mr Zhang to lie to police about his violence, should they ask, was contradicted by the evidence of the applicant and Mr Zhang.
2. This submission misstates the complainant's evidence. The complainant did not deny that on occasions he had told the applicant and his stepson to tell police that nothing had happened. When it was put to the complainant in cross-examination that on more than one occasion, including the occasion of the alleged incident of punching the applicant whilst he was driving the car in the Auburn area in September 2014, he told the applicant she should tell the police nothing had happened, the complainant responded, "[w]e basically had nothing. We only verbally argued, and someone else reported to the police".
3. Later in the cross-examination, after objection was taken by the Crown to defence counsel's question of the complainant that he told Mr Zhang to lie to the police and to tell them nothing physical had happened, the question was re-framed and the complainant answered as follows: Q: That you told your stepson to tell them nothing had happened? A. INTERPRETER: We, basically, had no problem. We only had verbal argument. We tell them the truth.
4. Nor did the applicant or Mr Zhang give evidence that the complainant told them to lie to police. Their evidence was that the complainant told them to tell police that nothing had happened. There is no material difference between the complainant's evidence and that of the applicant and Mr Zhang on this issue.

Other matters

1. An assessment of the totality of the evidence requires a consideration of the applicant's evidence as a whole. The Crown submitted that the applicant's evidence was flawed in several important respects. The following criticisms of the applicant's evidence correctly make this point.
2. The first matter relied upon by the Crown as undermining the applicant's credibility is the implausibility of her evidence that she was assaulted by the complainant for an extended period on 4 June 2017 whilst he was holding their six-year-old son with one arm, using his other arm to attack her. The complainant rejected this proposition when it was put to him in cross-examination. He said, "[w]ith one hand I cannot hold a six-year-old". When the related part of the defence case was put to the complainant that JP was "supporting himself by holding you around the neck and with his legs", the complainant rejected that proposition saying, "[i]t's nothing like that".
3. Consistent with the complainant rejecting these propositions put to him in cross-examination, the applicant gave evidence-in-chief that her son's arms were not around the complainant's neck. The contradiction between the applicant's evidence and the defence case put to the complainant is significant. The applicant's evidence of being attacked by the complainant with one arm over an extended period was inherently implausible.
4. The second matter is that despite the applicant's description of a violent and sustained attack to her arms, head and neck followed by choking, the applicant did not give evidence that she had been injured in any way. Nor did photographs taken by the police shortly after the incident show any injuries. DSC Muscat gave evidence, having taken 16 photographs of the applicant, including her face, neck, arms and hands, that he did not see any visible injuries on the applicant. Nor was it suggested to DSC Muscat in cross-examination that the applicant had any visible injuries when photographed following the incident.
5. The third matter is the unreliability of other aspects of the applicant's evidence concerning the incident on 4 June 2017. The applicant gave evidence that after the complainant stood up from the sofa, he was "pointing, and - his finger at me, like this" and "was pointing at me and choking me". However, when pressed as to how it was that the complainant was doing both these things with the same hand, the applicant quailed her evidence and said, "[h]e wasn't pointing at me, maybe … maybe I - maybe it was misunderstood". The applicant's evidence that she was being choked by the complainant when he was moving from the sofa in the loungeroom to the kitchen was unreliable.
6. The fourth matter is the credibility of the applicant's explanation for why she did not call out for help to either Mr Liu or Mr Zhang, or to anyone else in the house, notwithstanding the location of the kitchen next to Mr Liu's bedroom, and the applicant knew that Mr Liu was in his room, and also knew that her son, Mr Zhang, was in his room, which was accessed through the living room area.
7. When asked in cross-examination why she did not call out to Mr Liu, the applicant said that there was a point where the complainant stopped and she texted Mr Liu telling him she needed him to move his car because she had to go to work. Her evidence was that her phone was in her pocket. There are several difficulties with this evidence. One is that it was not referred to in the applicant's ERISP. That might be explicable given the time at which the ERISP occurred, early in the morning of 5 June 2017. Another difficulty is that this was not referred to by the applicant in her evidence-in-chief. That may explain why this matter was not put to Mr Liu by defence counsel. Yet another and significant difficulty is that it was inconsistent with the applicant's evidence-in-chief that when in the kitchen she told the complainant she was going to call the police and that "I was going to use the phone to call the police", but "he kept lunging at me". The applicant's evidence that she texted Mr Liu about moving his car was not corroborated by Mr Liu and was otherwise inconsistent with her evidence that she was prevented from calling the police because the complainant kept lunging at her.
8. When asked why she did not call out to Mr Zhang, the applicant said, "[i]t happened very quickly … he lunged at me". Again, this evidence is implausible, given the applicant's evidence of continued violent assaults at various locations in the house, including the lounge room which adjoined the bedroom where the applicant knew Mr Zhang was.
9. The fifth matter is that the applicant denied that she was angry with the complainant on the night and had had enough of him even though, at the time, she suspected that he was having an affair, considered that he was not a good father "because he was having an affair … he spent very little time with his own family", and agreed that the day before the stabbing, the complainant had paid only $700 to the mortgage and that was one of the reasons they were arguing. Given this combination of circumstances, the applicant's denial that she was angry with the complainant is inherently implausible.
10. The sixth matter is that when interviewed by the police shortly after the incident, the applicant denied that she had stabbed the complainant and said that she did not know how he had been stabbed. These lies were highly damaging to the applicant's credibility and undermined her assertions at trial that she was acting in self-defence. In addition, when interviewed by police, the applicant denied that she had been assaulted by the complainant, nor did she complain of any injury.
11. Viewed as a whole, the applicant's evidence of the incident on 4 June 2017 was unsatisfactory, it lacked plausibility in important respects and could not be accepted in support of the defence case that the applicant was repeatedly assaulted by the complainant with one arm, while holding JP, over an extended period in different rooms of the Auburn house.

Dr Ashkar's evidence

1. The applicant submitted that her evidence makes it clear that she believed that her action was necessary, and that belief is consistent with Dr Ashkar's conclusions about her emotional vulnerability at the time because her mental state meant that she believed that there was no other way to preserve herself or son from death or serious bodily injury other than acting the way she did by stabbing the complainant.
2. The difficulty with the applicant's reliance on Dr Askhar's evidence as support for her belief that her action was necessary, is that Dr Askhar's opinion is based on an assumption of at least 20 similar incidents to that which was alleged to have occurred on 4 June 2017 and this was not established in the evidence. The highest the evidence goes is that there is credible evidence given by Mr Zhang and Mr Liu which confirms that a contemporaneous report was made by the applicant to each of them that she had been punched in the face by the complainant and there was evidence from Mr Zhang and also the complainant of a visible red mark on the applicant's face on the morning following the 23 January 2017 incident.

Conclusion on ground 1

1. Addressing the issue of self-defence on which the Crown had the onus of proof, when considering the personal characteristics of the applicant at the time of her actions on 4 June 2017, there was evidence of a long history of marital discord and emotional abuse, and the applicant's state of mind included fears for her personal safety given what had occurred during the January 2017. The first question is whether on the whole of the evidence the Crown proved beyond reasonable doubt that there was no reasonable possibility that the applicant believed her conduct in stabbing the complainant was necessary to defend herself. Critical to this assessment is the evidence of where and how the stabbing occurred. As indicated, there was a stark difference in the accounts of the complainant and the applicant.
2. On my independent review of the evidence, the doubt I have as to the credibility of one aspect of the complainant's evidence relating to the earlier incident on 23 January 2017, does not cause me to have a doubt as to credibility or reliability of complainant's evidence of what occurred during the argument on 4 June 2017, nor a doubt as to the applicant's guilt which the trial judge should have experienced.
3. I am satisfied that the evidence established beyond reasonable doubt that after a prolonged and heated argument between the applicant and the complainant on 4 June 2017 in the loungeroom and then the kitchen, the complainant left the kitchen with JP in his arms and moved down the hallway to get away from the applicant, the applicant followed the complainant to stop him taking JP with him, the argument continued in the hallway for a short time and when they were arguing facing each the applicant stabbed the complainant in the lower back while he was holding JP with both arms. The complainant then walked a couple of steps down the hall before collapsing outside the applicant's bedroom near the bathroom, where he was found lying on the floor by Mr Liu and Mr Zhang.
4. Given the location of where the complainant was found in the hallway outside the applicant's bedroom near the bathroom, the inherent implausibility of the applicant's evidence of the complainant violently attacking her with one arm over a prolonged period while holding his six-year old son JP with the other arm, the absence of any visible injuries shown in the forensic photographs of the applicant taken by police immediately after the incident and the evidence of the police officer that he did not see any visible injuries on the applicant, I am satisfied that that the evidence established beyond reasonable doubt that the complainant did not punch, hit, or choke the applicant during this argument, while also holding JP in his arms, nor was the applicant being choked by the complainant in the kitchen immediately before she stabbed him.
5. I am satisfied on the whole of the evidence, considering the personal characteristics of the applicant at the time of her actions, that there is not a reasonable possibility that the applicant believed her conduct in following the complainant down the hallway and stabbing him while he was holding JP in both arms was necessary to defend herself. It was not the applicant's case that she argued with the complainant in the hallway near her bedroom or that she was being choked by the applicant in the hallway near her bedroom when she stabbed him. As indicated, defence counsel accepted at trial that if the applicant followed the complainant down the hallway while he was trying to get away from her then, on the complainant's version of what occurred, the applicant's response could not be self-defence. That concession was properly made. In the circumstances, no issue arises as to the reasonableness of the applicant's actions in response to the circumstances as she perceived them. The evidence established beyond reasonable doubt that applicant's conduct in stabbing the complainant was not in self-defence.
6. Ground 1 contending that the verdict is unreasonable verdict has not been made out.

Ground 2: inadequate reasons

1. Ground 2 is an alternative to ground 1. The applicant says that the reasons of the trial judge do not comply with the requirement of s 133(2) of the CPA, which provides: 133 Verdict of single Judge … (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. …

Applicable principles

1. The requirements of the predecessor provision to s 133 of the CPA, which was in the same terms - previously s 33 of the CPA - were stated by the High Court in Fleming v R (1998) 197 CLR 250; [1998] HCA 68 at [27]-[28]: …, the requirements of s 33(2) and (3) are expressed in terms of legal imperatives and a failure to observe either or both of them is to make a wrong decision on a question of law within the second limb of s 6(1) of the Criminal Appeal Act (55). … Fifthly, whilst s 33(2), when specifying that which a "judgment" must include, does not use the expression "reasons for judgment", it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached. (Citations omitted.)
2. In DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [32]-[33], the joint judgment of Kiefel CJ, Keane and Edelman JJ said of the adequacy of reasons: The content and detail of reasons "will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision". In the absence of an express statutory provision, "a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied". One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal. … Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake "a minute explanation of every step in the reasoning process that leads to the judge's conclusion". At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular: Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.
3. More recently, in Byrne v R [2020] NSWCCA 218 at [25], Johnson J said in considering the adequacy of reasons: Reasons for verdict following a judge-alone trial must be such as to enable a proper understanding to be gained … This Court should read the reasons of the trial judge fairly and as a whole.

Submissions

1. No complaint is made concerning the trial judge's detailed directions to herself, including as to the onus of proof, the tendency direction, the elements of the offences and the law of self-defence. Nor is there any complaint about the trial judge's statement of the chronology and factual circumstances and summary of the parties' submissions.
2. The applicant's complaint is that the verdict judgment does not expose the reasoning process, nor the verdict that is reached. The applicant submitted that there were significant discrepancies in three areas of the evidence in respect of which the trial judge did not disclose reasoning consistent with the requirements of s 133(2) of the CPA, namely:

• the complainant's alleged tendencies, particularly the tendency to be abusive.
• the expert evidence of Dr Ashkar.
• the evidence of how the stabbing occurred.

1. The Crown submitted that the trial judge complied with s 133 of the CPA and her obligations at common law to provide adequate reasons. The Crown emphasised that the trial was a relatively short trial and was contested on relatively narrow issues in respect of which the judge had the benefit of detailed closing address from the parties that were comprehensively summarised by her Honour and taken into account in the verdict judgment.
2. The Crown further submitted that the trial judge's determination of the crucial issues in the trial was heavily dependent upon her assessment of the respective credibility of the complainant and the applicant, having regard to the evidence given by each of them, and taking into account other evidence in the Crown case that did or did not support their respective versions of the circumstances of the stabbing.

The complainant's asserted tendencies

1. The applicant contended that in dismissing the tendency evidence, particularly the complainant's alleged tendency to be abusive, the verdict judgment does not (a) address the applicant's evidence, (b) adequately explain why the complainant's evidence is accepted, or (c) engage with the self-serving nature of the complainant's denials, despite evidence of both Mr Zhang and the applicant about previous violence.
2. As to (a), according to the submission, the asserted failure to record any finding respecting the applicant's evidence left as one possibility that the judge simply preferred the complainant's evidence and proceeded to convict upon it applying a standard less than proof beyond reasonable doubt. Reference was made to Douglas v R [2012] HCA 34; (2012) 290 ALR 699 at [14].
3. The premise of this submission is incorrect. The trial judge's reasons addressed and rejected the applicant's evidence when addressing the defence case that the complainant had the asserted tendencies in the tendency notice. The relevant passages of the judge's reasons set out above bear repeating.
4. Her Honour commenced by giving the following reasons for rejecting the applicant's evidence that the complainant had the asserted tendencies: The tendency evidence is disputed and there is little support for it. There are no medical records; the police were not informed of the detailed allegations of Mr Pan doing anything like the accused gave evidence of, except on one occasion when it went to court. I would not accept that the evidence as it emerged in the trial supports the asserted tendencies in the defence notice. Certainly, there was no evidence from the accused of the alleged 20 occasions that she told Dr Ashkar about.
5. Her Honour's reasons continued, with the finding that: I accept there may well have been prior arguments, but I do not accept the degree of physicality contended by the defence. which involved an acceptance of the complainant's acknowledgment that there was pushing during the argument with the applicant on 23 January 2017. Plainly, the trial judge was not satisfied that the complainant had punched the applicant in the face during this incident. Whilst a different view might have been taken of the evidence, that does not mean that her Honour's reasons were inadequate.
6. After noting that there were the six alleged occasions (of physical abuse) between November 2013 and February 2017, her Honour found that the difficulty with the applicant's history of 20 occasions given to Dr Ashkar was: There is no indication of when these other matters raised by the defence took place, although of course they would have been before 19 February 2017.
7. The applicant complains about her Honour's reasons in the following passages that there was little support for the tendency evidence: I am not satisfied that he had a tendency to physically and mentally abuse the accused, nor to demand that the accused deny that any abuse had occurred when questioned by police or to make threats to the accused that if she reported his abuse to the police such threats would include making sure that she would lose custody of their son or that he would take her son back to China. There were, clearly, arguments, heated arguments. I am prepared to accept that her ex-husband said to deny to the police that any abuse had occurred or to make threats to the accused that if she reported, what I do not see as abuse, but the heated verbal arguments, that she would lose custody of their son or that he would take her son back to China. The difficulty is that there is absolutely no precision as to when these events occurred. Having come to that view I cannot, from what the objective evidence is, draw the conclusion that the complainant being the victim had a tendency to act in that way. … The accused was not able to provide specific details of the occasions when she was assaulted in the history recounted to Dr Ashkar. Dr Ashkar reported no evidence of brain injuries.
8. That there were no medical records was plainly relevant, but not determinative of the allegations of physical abuse. Her Honour noted that Dr Ashkar reported no evidence of brain injury. Contrary to the applicant's submission, the absence of statements to police is not "entirely" consistent with the asserted tendency that the applicant and Mr Zhang were asked to lie, given the lack of corroboration by medical records of the alleged physical abuse and the lack of corroboration by the COPS entries of any observation by police of physical injuries for the November 2011, September 2014 and February 2017 incidents: see [162] above.
9. The applicant also complains that her Honour does not explain why the lack of "specificity" as to when the previous violence occurred is relevant. That there was no precision when these other events occurred was relevant to the reliability of the history given to Dr Ashkar of 20 occasions of alleged physical violence.
10. Contrary to the applicant's submissions, the trial judge considered the second aspect of the tendency argument that he told the applicant and Mr Zhang to lie to the police. Her Honour accepted that there were heated verbal arguments during which the complainant told the applicant to deny to police that any abuse had occurred or to make threats to the applicant that if she reported, what her Honour did not see as abuse, but the heated verbal arguments, she would lose custody of their son or that he would take her son back to China, but found "the difficulty is that there is absolutely no precision as to when these events occurred". Implicit in her Honour's reasons is that she was not satisfied that the complainant told the applicant and Mr Zhang to lie to the police as to what had occurred.
11. The trial judge made an express finding rejecting the applicant's evidence beyond reasonable doubt, giving the following reasons for rejecting the applicant's evidence: (a) the absence of evidence of physical injuries to the applicant's head, face, throat and arms, (b) the lies the applicant told the police in her ERISP, (c) the lies to the police were not the result of matters raised by Dr Ashkar, being asserted cultural reasons for the applicant not disclosing the complainant's alleged physical and mental abuse, (d) the location where the complainant was lying relative to the applicant's bedroom and the distance from the kitchen, and (e) the applicant's conduct was to an extent a targeted stabbing, given she stabbed the complainant in a way to avoid her own child.
12. As to (b) and (c) (relating to the acceptance of the complainant's evidence), the trial judge did not simply prefer the complainant's evidence to that of the applicant and proceed to convict the applicant applying a standard less than proof beyond reasonable doubt. Nor do the trial judge's reasons fail to disclose her Honour's reasoning on the critical issue of why she accepted the complainant's version of events, notwithstanding what the applicant submitted were its logical flaws.
13. The trial judge accurately recorded the defence case noting that the applicant said that just before the stabbing, she was being held around the neck and was being choked and noted the stark difference between the evidence of the complainant and the applicant: It is accepted by both parties that [the complainant] was holding his son and it is not accepted by [the complainant] that he was holding him by one arm; his evidence is that he was holding him by both arms. The defence contention is that he was holding him by one arm and he was using the other arm and hand to punch the [applicant] or strike the [applicant] and ultimately, to grab her by the throat.
14. The trial judge found that the applicant's evidence of being repeatedly attacked by the complainant during the argument on 17 June 2017 was inconsistent with her sustaining no injuries and that the applicant's credit was adversely impacted by the lies she told in her record of interview with the police. Her Honour characterised the whole interview as a "sustained and calculated attempt to distance herself from the stabbing".
15. As to the dispute as to the location where the stabbing occurred, which was critical to the applicant's claim that she was acting in self-defence, her Honour gave reasons (contrary to the applicant's submission) why she rejected the applicant's account beyond reasonable doubt. Those reasons are referred to at [212] above, in particular, in sub-par (d). While the trial judge's reasons did not specifically address the bloodstains in the kitchen, it is implicit in her Honour's reasons for accepting the complainant's evidence as to where the stabbing occurred, that the evidence of bloodstains in the kitchen was explicable given the process of cleaning up the blood in the hallway and returning the knife to the kitchen pantry before the police arrived.

Dr Ashkar's evidence

1. The complaint that the trial judge's reasons for rejecting the expert evidence of Dr Ashkar are inadequate asserts that the reasons focus on Dr Ashkar's failure to use a shorthand expression (battered woman syndrome) and relied on its absence as a justification for dismissing the entire body of evidence and its connection with the applicant's conduct. This is a mischaracterisation of her Honour's reasons.
2. As her Honour noted in her verdict judgment, the reference to the applicant suffering "battered woman syndrome" was a submission made by defence counsel, relying upon the evidence of Dr Ashkar. Her Honour correctly noted the absence of an express statement from Dr Ashkar that the applicant in fact suffered from this condition.
3. Her Honour's analysis of Dr Ashkar's evidence did not stop here. Her Honour noted that, other than the six occasions of which the applicant gave evidence, the applicant was not able to provide specific details of the 20 occasions when she was assaulted according to the history given to Dr Ashkar. Consistently with the directions of law which her Honour gave herself regarding the use of expert evidence, which included: If I decide that the facts have not been proven or the assumptions are not valid, then any opinion based upon them is of no assistance because it has no foundation. If that is the case, the opinion should be disregarded. her Honour found that the assumptions on which Dr Ashkar's report was based were not established in view of inaccurate history given by the applicant to Dr Ashkar of physical assaults by the complainant. It was for that reason, together with Dr Ashkar not reporting any brain injuries, nor giving an opinion that the applicant was suffering from battered woman syndrome, that the report was generally disregarded.
4. The applicant also complains that her Honour did not explain why she gave "minimal weight" to Dr Ashkar's evidence, when considering the applicant's demeanour during her recorded interview with police and when giving evidence. In his report, under the heading "Behavioural Observations", Dr Ashkar said that when the applicant attended for assessment she was "introverted and closed with very little eye contact or social engagement" and "I suspect this is due to a combination of mood and cultural factors". He expressed the opinion that "[c]ultural factors (eg shame) may also explain her lack of disclosure of her history of abuse at the time". When asked in in cross-examination about the basis or literature or source for concluding that certain matters can be attributed to cultural factors, Dr Ashkar acknowledged that his comments were not scientific and were based on his anecdotal experience with other people from non-Western cultures, who have been in very similar situations. Her Honour's reasons for giving this evidence minimal weight are apparent from her analysis of Dr Ashkar's evidence in the following passage: Dr Ashkar asserted cultural reasons for particular conclusions he draws and acknowledged that it was not scientifically based, but rather anecdotally based.

How the stabbing occurred

1. The third basis for challenging the adequacy of the trial judge's reasons focuses on how the stabbing occurred.
2. The stark difference between the evidence of the complainant and the applicant as to where and how the stabbing occurred was squarely addressed by her Honour. Insofar as the applicant submitted that her Honour only gave one reason for rejecting the applicant's account - namely, that her credit was adversely impacted by the lies she told in her record of interview - that is incorrect. Her Honour also took into account the matters referred to at [212] above.
3. As to her Honour's acceptance of the complainant's evidence, the applicant submits that there is no analysis or explanation as to why her Honour accepted the complainant's account and rejected the applicant's account in circumstances where it was the applicant's case that JP was holding onto the complainant around the neck and the complainant held him with one hand, while he used his free hand to grab the applicant around the neck. The applicant referred to the following passage in the trial judge's reasons: The accused said that JP was not holding his father around the neck while being held during this argument. I reject the account of the accused beyond reasonable doubt. However, this passage ignored the preceding sentence: [The complainant] gave evidence throughout that he had held his 6-year old son with both arms and rejected the suggestion that he was able to have one of his arms free to attack the accused.
4. As the trial judge observed, the applicant's evidence that JP was not holding his father around the neck while being held during the argument was consistent with the complainant's evidence. When asked what happened in the kitchen, the applicant gave evidence that the complainant was holding JP at the same time, that she was not sure where JP's arms were as the complainant "was holding my son very tightly", and answered the following question in the negative: Q: Were your son's arms around your husband's neck? A: No, no.
5. The point which the trial judge made in her reasons was that given the applicant's evidence that JP was not holding his father around the neck when being held by him during the argument, or she was "not sure" where JP's arms were, her Honour accepted the complainant's evidence that he did not have a free arm to attack the applicant while also holding JP with both arms.
6. Insofar as the applicant complains that her Honour did not explain why she accepted the complainant's evidence as to where and how the stabbing occurred, this ignores her Honour's reasons as to the location where the complainant was found lying in the hallway, as to which her Honour noted the Crown submissions that there was no dispute that the place where the complainant was lying on the floor was the spot marked on Exhibit B by Mr Liu, which was confirmed by the witnesses that saw the complainant on the floor.
7. The applicant also complains about her Honour's reasons that on the complainant's account there was no act of self-defence on the part of the applicant in relation to herself or in relation to her son, JP. This submission ignored that, as already noted, the issues at trial were relatively confined. Defence counsel had accepted in closing submissions that if the applicant followed the complainant down the hallway while he was trying to get away from her then on the complainant's version of what occurred, the applicant's response could not be self-defence. That is what the trial judge was referring to when stating that on the account given by the complainant there was no act of self-defence on the part of the applicant.
8. The complaint in ground 2 of inadequate reasons should be rejected. Accordingly, no occasion arises to order a re-trial. I now turn to the sentence appeal.

Sentence appeal

1. Immediately following the verdict, the Crown made a detention application which her Honour refused. The applicant's bail was continued pending sentencing, with a variation in the bail conditions imposing a stricter condition of daily reporting to police.

The proceedings on sentence

1. The Crown tendered on sentence several documents including a statement of facts for sentencing and an assessment report by Community Corrections dated 8 March 2021. In response to several objections by counsel for the applicant, the Crown amended some of the facts which it contended should be found on sentence. The Crown provided a copy of R v Geebung [2020] NSWDC 546, a case cited as comparable for sentencing purposes.
2. At the request of the sentencing judge, the Crown handed up Judicial Commission sentencing statistics in relation to s 35(4) of the Crimes Act. For offences between 24 September 2018 and 30 September 2020 (a) in relation to 167 cases where there was guilty plea, 39, being 23.4 per cent, received an intensive correction order (ICO), and (b) in relation to four or six cases in which there was a not guilty plea, one of the four cases received a sentence of two years or less, and two of the six cases received an ICO.
3. Counsel for the applicant submitted on sentence that any custodial sentence should be served by way of an ICO and, that in the circumstances of this case, a lesser term of imprisonment was appropriate within the range that an ICO requires, being 2 years or less: Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), ss 7 and 68(1).
4. The applicant tendered Dr Ashkar's report, but only relied upon his assessment that the applicant's functioning was at the low end of normal limits in most areas of her intellectual (and other) cognitive functioning.
5. The applicant also tendered a report from Dr Richard Furst, forensic psychiatrist, dated 11 October 2020. He diagnosed the applicant as suffering from a major depressive disorder. Responding to the question of whether he could identify any causal link between the applicant's mental condition and the offending, Dr Furst answered: In my opinion, [the applicant's] offending was likely driven by protracted marital discord, related emotional stress and the specific psychological stress / fear of her husband's apparent expressed intention to leave her and take their son away, a position that was intolerable to [the applicant] and overwhelmed her. In this respect, her relatively low level of cognitive function, including a tendency towards concrete thinking, likely left her in a position in which she became emotionally overwhelmed and saw no alternative other than acting impulsively and recklessly, in the matter that constitutes the offending in question against her husband.
6. Dr Furst said that the applicant would benefit from treatment / counselling in relation to her depressive disorder, parenting and relationship issues, and recommended that the applicant be placed under the care of her general practitioner and be referred for psychological treatment / counselling pursuant to a mental health care plan.
7. Dr Furst expressed the opinion that a custodial sentence is likely to be more onerous for the applicant than the "theoretical" average offender, given that the applicant "remains depressed in mood, is anxious about her son and continues to struggle emotionally". Moreover, several factors render the applicant particularly vulnerable in a custodial setting, namely, she "is far from a hardened criminal, speaks hardly any English and is psychologically frail".

The sentencing judgment

1. After referring to the maximum penalty and standard non-parole period, her Honour noted that the offence of reckless wounding was a "domestic violence offence" and that the Crown had helpfully referred to the provisions of ss 4A and 4B of the Sentencing Act. Her Honour said that a prior relationship between the applicant and the victim did not mitigate an offence of personal violence.
2. Next, her Honour referred to the delay in the trial given that the first trial in 2019 was aborted, and the delay in sentencing which was due to a combination of reasons including, her Honour's unavailability and the applicant's failure to attend Community Corrections for an assessment report.
3. Her Honour identified the following factors as relevant to her assessment of the objective seriousness of the offending as "just" in the middle range of objective seriousness: 1. the injury to the victim involved a single 2 cm wound which required surgery and hospitalisation for two days; 2. there was one action only, by a small kitchen knife; and 3. the applicant thought that there was a cover on the knife, there was no premeditation or planning, and there was immediate remorse once the applicant appreciated the victim was injured.
4. Her Honour noted several aggravating features of the offending as set out in s 21A(2) of the Sentencing Act, relevantly: the injury occurred with a weapon (s 21A(2)(c)), in the presence of a child (s 21A(2)(a)) and to the victim at his home (s 21A(2)(e) and (b));
5. Her Honour made the following findings and observations in relation to the applicant's subjective case: 1. the applicant was 51 years of age at the date of sentence (47 years at the time of the offending); 2. the applicant had spent 58 days in custody solely for this offence; 3. at all times since the offence, the applicant was subject to strict bail conditions which were onerous. Those conditions included a reporting requirement five days per week to police; a curfew condition from 9 pm to 5 am; a prohibition on returning to the Auburn home, which was later sold in 2019; and non-contact conditions with respect to her two sons until such condition was varied with respect to the older son in August 2020 after the trial had concluded, and with respect to JP in October 2020; 4. the applicant had no prior criminal record; 5. the applicant was a very hard worker and a good mother, which was also the view of the victim; 6. the applicant had shown remorse immediately after the stabbing; 7. the offence appeared to be out of character, the applicant was not a violent or anti-social person by nature; 8. the applicant's mental condition at the time of the offending was a feature to be taken into account; and 9. the applicant had good prospects of rehabilitation, whilst expressing a neutral view as to whether the applicant would or would not reoffend.
6. Her Honour noted, turning to Dr Furst's report, that it was difficult to be certain about whether the applicant was suffering a mental condition in June 2017, however, "it is more likely than not" that the explanation for the applicant's offending was that: … [the applicant] was highly stressed by marital discord / conflict, including issues of domestic abuse - I have found that is emotional abuse - her husband's irresponsibility, including gambling behaviour, and apparent affair - although this was denied by the victim, her perception was an apparent affair, that he was having an affair - and the intentions expressed by the victim to take their son away.
7. Her Honour made a finding of special circumstances on the basis that it was the applicant's first time in custody, her rehabilitation would be better achieved in the community, and the difficulties she would have in custody, including her extremely limited English and being away from her youngest son and older son.
8. Her Honour did not find a need for specific deterrence, however she found that the need for general deterrence was "significant" and "looms large" because the offending was a domestic violence offence and involved the use of a knife. Her Honour found that no penalty other than imprisonment was appropriate referring to s 5 of the Sentencing Act. After observing that the sentencing exercise had been "most difficult", her Honour said: The Court must not allow the objective seriousness of the offending and a requirement for general deterrence to be overwhelmed by the subjective material ... and imposed the full-time custodial sentence already indicated, the length of which excluded consideration of an ICO.

Submissions on manifest excess

1. The applicant's claim of manifest excess is based on two matters. First, that apart from referring to it, her Honour did not make any findings about ss 4A and 4B of the Sentencing Act, and it is unclear whether her Honour used those provisions as a basis to find that a fulltime custodial sentence was warranted.
2. Second, that the combination of the circumstances of the offence, the sentencing judge's finding that the applicant was immediately remorseful, the applicant's good character, the very small likelihood that she would ever reoffend and her psychological diagnoses of suffering from a major depressive order, should not have resulted in a sentence that required a period of fulltime custody. Rather, a custodial sentence less than 2 years was warranted, allowing the court to impose an ICO.
3. The Crown submitted that given her Honour's express reference to the provisions contained in ss 4A and 4B of the Sentencing Act, her Honour had regard to and applied these provisions and there was no requirement for her to state anything further.
4. The Crown submitted that a major distinguishing feature between the applicant's case and the majority of the cases the subject of the sentencing statistics is that the applicant defended the matter at trial and did not receive a discount of any kind. Based on the sentence imposed, the Crown submitted that had the applicant pleaded guilty at an early stage and received a 25 per cent discount, she would have received a head sentence of less than two years, and the statistics must be considered with this in mind.
5. The Crown also submitted that the statistics and the case of Geebung do not establish that the present sentence lies outside the permissible range of sentences that could legitimately be imposed, and that in view of the considerations referred to by her Honour in her reasons, the sentence imposed is not manifestly excessive.

Determination

1. The contention that the sentence imposed was manifestly excessive requires the applicant to establish that the sentence imposed is unreasonable or plainly unjust: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6].The principles to be applied in determining whether a sentence is manifestly excessive are summarised by R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].
2. By its very nature, appellate intervention on the ground of manifest excess is a conclusion that "does not admit of lengthy exposition": Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. What reveals manifest excess of sentence "is consideration of all the matters that are relevant to the fixing of the sentence": Hili at [60].

Significance of ss 4A and 4B of the Sentencing Act

1. It is convenient first to address the applicant's submission that her Honour did not make any findings about ss 4A and 4B of the Sentencing Act. These provisions were introduced by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) as follows: 4A Domestic violence offenders - requirement for full-time detention or supervision (1) If a court finds a person guilty of a domestic violence offence, the court must impose on the person either: (a) a sentence of full-time detention, or (b) a supervised order. (2) However, the court is not required to impose either of those sentencing options if the court is satisfied that a different sentencing option is more appropriate in the circumstances and gives reasons for reaching that view. (3) For the purposes of this section, a supervised order is an order (being an intensive correction order, community correction order or conditional release order) that is subject to a supervision condition. 4B Domestic violence offenders - protection and safety of victims (1) An intensive correction order must not be made in respect of: (a) a sentence of imprisonment for a domestic violence offence, or (b) an aggregate sentence of imprisonment for 2 or more offences, any 1 or more of which is a domestic violence offence, unless the sentencing court is satisfied that the victim of the domestic violence offence, and any person with whom the offender is likely to reside, will be adequately protected (whether by conditions of the intensive correction order or for some other reason). (2) If the sentencing court finds a person guilty of a domestic violence offence, the court must not impose a home detention condition if the court reasonably believes that the offender will reside with the victim of the domestic violence offence. (3) Before making a community correction order or conditional release order in respect of a person whom the sentencing court finds guilty of a domestic violence offence, the court must consider the safety of the victim of the offence.
2. The operation of ss 4A and 4B was considered in Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294 at [79]-[83] (Leeming JA) and [181]-[186] (Simpson AJA). When a court finds a person guilty of a domestic violence offence, it must impose, under s 4A(1), either a sentence of fulltime detention or a supervised order (being an intensive correction order, community correction order or conditional release order that includes a supervision condition). However, the Court may impose a different sentence if satisfied that it is more appropriate in the circumstances, and gives reasons for reaching that view: s 4A(2). Section 4B contains additional requirements designed for the protection and safety of victims. Relevantly, an ICO cannot be imposed unless the Court is satisfied the victim of the domestic violence offence, and any person with whom the offender is likely to reside, will be adequately protected: s 4B(1).
3. In this case, the reckless wounding offence was a domestic violence offence and s 4A of the Sentencing Act required her Honour to impose either a sentence of full-time detention or a supervised order, unless satisfied that a different sentence was more appropriate in the circumstances and gave reasons for reaching that view. As noted, the applicant's submission on sentence was that the term of any custodial sentence should be two years or less, which should be served by way of an ICO. The applicant did not advance any submission on sentence that a different sentencing option to a supervised order was more appropriate.
4. Having fixed on a sentence of a term of imprisonment of a length exceeding two years, it was not open to her Honour to direct that such term of imprisonment be served by way of an ICO: Sentencing Act, s 68(1). Thus, there was no occasion for her Honour to make any findings about ss 4A and 4B with respect to serving the custodial sentence which was imposed upon the applicant by way of an ICO. In these circumstances, the applicant's complaint about absence of findings about ss 4A and 4B does not arise.

Comparable cases

1. The applicant's claim of manifest excess is not based on a history of sentencing in other cases. The sentencing statistics provided on sentence for reckless wounding offences were not particularly helpful as there are only a small number of cases involving a not guilty plea to a charge of reckless wounding; of those four or six cases, one of the four cases received a sentence of two years or less, and two of the six cases received an ICO.
2. Geebung is the only comparative case to which the Crown referred on sentence and again on appeal. It is well accepted that District Court cases carry less weight than sentences that have been reviewed by an intermediate appellate court: Moodie v R [2020] NSWCCA 160, Appendix at [12] (Bell P), citing DPP (Cth) v De La Rosa [2010] NSWCCA 194 at [144] (Basten JA).
3. In Geebung, a jury returned a verdict of guilty in respect of an offence of reckless wounding and the offender was sentenced to imprisonment for 2 years and 3 months, with a non-parole period of 14 months. The offender, a female aged 19 years, was heavily intoxicated when she had stabbed another female repeatedly with a broken bottle which the offender had smashed on the ground during an argument while the victim was leaving a Christmas party. This offending was assessed at "about" the mid-range and was objectively more serious than the present case, given (a) the manner in which the injuries were inflicted by "glassing" the victim, and the nature of the injuries suffered by the victim. There were four separate lacerations. These were to the victim's left temporal region of 4 to 5 cms, her left cheek of 3 to 4 cms, the right side of her nose below the eye, and the most serious injury, an 8-to-10-centimetre laceration to the neck, 1.5 cms deep. The victim underwent surgery, discharged two days later.
4. Whilst there are some similarities to the applicant's subjective circumstances, as the offender in Geebung had prior good character, a lack of drug and alcohol issues, good prospects of rehabilitation and had been subject to onerous bail conditions for nearly two years (including reporting and curfew as well as conditions that she could no longer visit her father or traditional lands of her peoples during that time), there are differences in that the applicant's bail conditions had been in place for longer in relation to the applicant, she was older than the offender in Geebung and not of Aboriginal background. Other notable differences were that there was no finding of any remorseful contrition in relation to the offender in Geebung, whereas the applicant was immediately remorseful.
5. While the lower head sentence in Geebung is not markedly different from the applicant's head sentence, the offending in Geebung had greater seriousness than the present offending, and the result in Geebung does not support the Crown's submission that the present sentence does not lie outside the permissible range of sentence that could be legitimately imposed.

Whether the sentence imposed is unreasonable or plainly unjust

1. The claim of manifest excess is not available because this Court is of the view that it would have given less weight to general deterrence and greater weight to the applicant's favourable subjective case: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]. Nevertheless, I am persuaded that in the particular circumstances of this offending, and this offender, the sentence was manifestly excessive. The chief considerations which point to manifest excess are the reasons and circumstances of the offending, the role of general deterrence in this case, and the applicant's compelling subjective case.
2. As to the first matter, it bears repeating that her Honour found "it is more likely than not" that the explanation for the applicant's offending was that the applicant was highly stressed by marital discord / conflict, including issues of emotional abuse, which her Honour found was emotional abuse and the other matters stated in the passage of her Honour's reasons set out at [241] above.
3. Further, the offending was not premeditated or planned, it followed a prolonged argument about the mortgage and child custody issues, the applicant thought there was a cover on the small kitchen knife, the injury was a single small wound, and there was immediate remorse once the applicant realised that she had injured the complainant.
4. As to the second matter, general deterrence will usually be of significance where the offending involves the use of a knife and is a domestic violence offence. However, given the finding by her Honour that the applicant's mental condition at the time of the offending was a subjective feature to be taken into account, her low intellectual functioning and her psychological diagnosis of now suffering from a major depressive disorder, this was a case in which general deterrence had a more limited role to play in the sentencing process because such an offender is not an appropriate medium for making an example to others.
5. As to the third matter, accepting that a strong subjective case cannot result in the imposition of a sentence which is not properly reflective of, or which is disproportionate to, the objective seriousness of the offending (Clarke-Jeffries v R [2019] NSWCCA 56 at [45] (Bellew J, Simpson AJA and Campbell J agreeing), citing R v Dodd (1991) 57 A Crim R 349), the applicant's compelling subjective case called for not inconsiderable mitigation.
6. In my view, ground 3 has been made out.

Resentence

1. In resentencing the applicant, I have adopted and acted upon the sentencing judge's uncontested factual findings and assessments: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9]; Turnbull v R [2019] NSWCCA 97 at [44]-[46] (Simpson AJA, Ierace J agreeing, Wilson J not deciding); RO v R [2019] NSWCCA 183 at [82] (Beech-Jones J, Bathurst CJ and N Adams J agreeing). Those findings and assessments include the objective seriousness of the offending, and the applicant's moral culpability, remorse and contrition, prospects of rehabilitation and special circumstances.
2. My assessment coincides with her Honour's implicit finding that the applicant is not an appropriate candidate for specific deterrence, given her low intellectual functioning and her major depressive disorder.
3. The applicant did not rely on any additional evidence on resentence, other than the inference to be drawn from her compliance with her onerous conditions of bail, since the sentencing hearing in May 2021.
4. Turning to the sequence of determinations to be made by a sentencing court under the Sentencing Act, as Gageler J recently observed in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 at [30]: The Court of Criminal Appeal of the Supreme Court of New South Wales has held, repeatedly and correctly, that whether an offender is to be sentenced to a term of imprisonment, and (if so) for what term, are questions to be asked and answered within the scheme of the Sentencing Procedure Act before any question can arise as to whether or not to make an ICO and (if so) on what conditions. (Citations omitted)
5. As to the question of whether the threshold in s 5(1) of the Sentencing Act is met, I accept her Honour's unchallenged finding that no penalty other than imprisonment is appropriate. The applicant did not argue to the contrary.
6. It is next necessary to determine the appropriate term of the sentence of imprisonment and, where the issue arises, consideration of whether or not to make an ICO. An ICO is a sentence of imprisonment for the purpose of s 5(1) of the Sentencing Act that is directed, under s 7(1), to be served by way of intensive correction in the community rather than full-time detention. The determination of the appropriate term of the sentence of imprisonment to be imposed is to be made without regard to, and cannot be adjusted to reflect, the manner in which the sentence is to be served: R v Zamagias [2002] NSWCCA 17 at [26]; Wany v R (2020) 103 NSWLR 620; [2020] NSWCA 318 at [20].
7. The applicant submitted that the Court should place significant weight on the mitigating factors which would lead to a lesser sentence than that imposed by her Honour, and that a sentence of two years or less is appropriate. The factors relied upon by the applicant are that there was no premeditation or planning, the applicant thought there was a cover on the knife, the offending occurred in circumstances where the applicant was highly stressed by marital discord / conflict including emotional abuse, and the applicant's subjective features, specifically her low intellectual functioning and major depressive disorder.
8. As noted, the applicant has a particularly strong subjective case. She has no prior criminal history. Her Honour found that the applicant is hardworking and a good mother, that the applicant showed immediate remorse after the stabbing, the offence appeared to be out of character, and she has good prospects of rehabilitation. Her Honour also found that as a result of her conduct the applicant lost the Auburn house. As indicated, the applicant has complied with onerous bail conditions since her release on bail in August 2017, following time spent in custody of nearly two months from 5 June 2017 to 1 August 2017.
9. When weighing the objective gravity of the offending and the need for general deterrence and the subjective circumstances of the applicant, I am of the view that in this case, and for this offender, the weight to be given to general deterrence should be moderated in favour of rehabilitation, given the applicant's strong subjective case. I consider that a sentence of imprisonment for two years is appropriate in all the circumstances of this offender.

Whether an ICO should be made

1. The applicant submitted that this Court should make a direction under s 7 of the Sentencing Act that the sentence of imprisonment be served by way of an ICO. This mode of sentence is available where the sentence of imprisonment in respect of a single offence does not exceed two years: Sentencing Act, s 68(1).
2. The Court is required by s 66(1) of the Sentencing Act to have regard to community safety as the "paramount consideration" when deciding whether to make an ICO in relation to an offender, and by s 66(2) is obliged to assess whether making an ICO or serving the sentence by way of fulltime detention is more likely to address the offender's risk of reoffending. By s 66(3) the Court is also required to consider the purposes of sentencing under s 3A, any common law sentencing principles, and may consider any other matters that the Court thinks relevant.
3. There is a prohibition on the power to make an ICO in respect of, relevantly, domestic violence offences (s 4B), which includes reckless wounding in the context of this case. This is addressed separately below.
4. In R v Pullen [2018] NSWCCA 264 at [84], Harrison J (Johnson and Schmidt JJ agreeing), said of the concept of "community safety" in s 66: The concept of "community safety" as it is used in the Act is broad. As s 66(2) makes plain, community safety is not achieved simply by incarcerating someone. It recognises that in many cases, incarceration may have the opposite effect. It requires the Court to consider whether an ICO or a full-time custodial sentence is more likely to address the offender's risk of re-offending. The concept of community safety as it is used in the Act is therefore inextricably linked with considerations of rehabilitation.
5. Recently, in Stanley, the joint judgment held that the failure to consider the paramount consideration of community safety in s 66(1), by reference to the assessment required by s 66(2), constituted jurisdictional error: Stanley at [88], [115] (Gordon, Edelman, Steward and Gleeson JJ); cf in dissent Kiefel CJ at [12], Gageler J at [20]-[33] and Jagot J at [240]-[241]. Addressing the construction of the power to make an ICO, the joint judgment said at [72]-[77]: [72] There was no dispute before this Court that s 66 imposes specific mandatory considerations upon the decision maker to make, or refuse to make, an ICO. Section 66(1) requires the court to treat community safety as the "paramount consideration". In the context of s 66(2), community safety principally concerns the possible harms to the community that might occur in the future from the risk of reoffending by the offender. The issue is not merely the offender's risk of reoffending, but the narrower risk of reoffending in a manner that may adversely affect community safety. [73] The identification of community safety in s 66(1) as the "paramount" consideration also indicates that s 66 is concerned with an aspect of the sentencing task that requires the sentencing court to have a particular and different focus at the third stage of the three-step process described earlier. When the court is deciding the discrete question whether or not to make an ICO, community safety is the consideration to which other considerations are to be subordinated, although other considerations must or may be taken into account as prescribed by s 66(3). [74] Section 66(2) explains how the sentencing court must engage with the paramount consideration of community safety. For the purpose of addressing community safety, s 66(2) requires the sentencing court to undertake a task of assessing the possible impacts of an ICO or full-time detention on the offender's risk of reoffending. Section 66(2) gives effect to Parliament's recognition that, in some cases, community safety will be better promoted by a term of imprisonment served in the community than by full-time detention. Section 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety. Thus, s 66(2) requires the sentencing court to look forward to the future possible impacts of the sentence of imprisonment, depending upon whether the sentence is served by way of full-time detention or by way of intensive correction in the community. [75] The assessment required by s 66(2) is not determinative of whether an ICO may or should be made. To the contrary, as is plain from s 66(3), the assessment is required for the purpose of addressing community safety as the paramount, but not the sole, consideration in deciding whether or not to make an ICO. Thus, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). In that respect, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending. [76] That said, community safety will usually have a decisive effect on the decision to make, or refuse to make, an ICO, unless the relevant evidence is inconclusive. There may be cases where a court cannot be satisfied whether serving a sentence by way of intensive correction in the community or serving a sentence in full-time custody would be more likely to address reoffending. In those cases, other factors will assume significance and will be determinative. On the other hand, there will be cases where a court concludes that serving the sentence by way of intensive correction in the community is more likely to address reoffending. [77] While aspects of community safety underpin some of the general purposes of sentencing, such as specific and general deterrence and protection of the community from the offender, those aspects will have been considered in deciding whether to impose a sentence of imprisonment (ie, before considering an ICO). Community safety is required to be considered again and in a different manner under s 66 when considering whether to make an ICO. At this third step, community safety in s 66(1) is given its principal content by s 66(2), namely, the safety of the community from harms that might result if the offender reoffends, whether while serving the term of imprisonment that has been imposed or after serving that term of imprisonment. (Citations omitted.)
6. Five points emerge from the joint judgment in Stanley.
7. First, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). The issue is not merely the offender's risk of reoffending, but the narrower risk of reoffending in a manner that may affect community safety: at [72], [75].
8. Second, s 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety: at [74].
9. Third, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending: at [75].
10. Fourth, the consideration of community safety required by s 66(2) is to be undertaken in a forward-looking manner having regard to the offender's risk of reoffending: at [74].
11. Fifth, while community safety is not the sole consideration in the decision to make, or refuse to make, an ICO, it will usually have a decisive effect unless the evidence is inconclusive: at [76].

Assessment of community safety in this case

1. The evidence at the sentencing hearing included an assessment report prepared by Corrective Services NSW dated 8 March 2021. The report included assessments that the applicant was a "Medium-Low" risk of reoffending and was suitable to undertake community service work. The report outlined a supervision plan which would be implemented by Community Corrections if the Court makes an ICO which involved:

• regular third-party checks with family, husband (complainant) and police (DVLO) for monitoring and compliance.
• referral to a GP for initial mental health assessment and referral to a psychologist to address [any] ongoing concerns related to anger and violence.
• referral to a counsellor to address unresolved anger and emotional regulation issues.
• Cognitive Behavioural Therapy based interventions implemented through reporting interviews to help manage stress and anger, conflict resolution and to avoid impulsive decision making.

1. The nature and content of the conditions that might be imposed by an ICO which are relevant in measuring the risk of reoffending include the two standard conditions of an ICO under s 73(2) of the Sentencing Act, namely: 1. The offender must not commit any offence. 2. The offender must submit to supervision by a community corrections officer.
2. Section 73A(1)-(1A) of the Sentencing Act requires the Court to impose at least one additional condition unless there are exceptional circumstances. The additional conditions under s 73A(2) include home detention, electronic monitoring, specific curfew, community service, rehabilitation or treatment, abstaining from alcohol or drugs, a non-association and place restrictions.
3. In the remarks on sentence, her Honour noted that following the variation in the applicant's bail conditions, the applicant and the complainant have corresponded by way of text message since October 2020 in relation to the arrangements permitting contact with the younger son, JP, on a weekly basis. The Crown did not submit that there had been any difficulty with these arrangements. Given these circumstances and the elements of the supervision plan proposed by Community Corrections, the applicant's compliance with her onerous bail conditions over a lengthy period exceeding four years, that the offending was not alcohol or drugs related, and the applicant's low intellectual functioning and major depressive disorder, I am satisfied that there are exceptional circumstances not to require any additional condition under s 73A(2) of the Sentencing Act if the sentence was directed to be served by way of an ICO.
4. Applying the forward-looking approach referred to in the joint judgment in Stanley to the evaluative exercise of whether community safety as the paramount consideration, together with the subordinate considerations in s 66(3), warrant full-time detention or an ICO, I am satisfied that the risk of the applicant reoffending in a manner that may affect community safety would be better reduced by an ICO than full-time imprisonment for the following reasons: 1. the assessment report assessed the applicant's risk of reoffending as "Medium-Low"; 2. her Honour found that the applicant was not a violent or anti-social person by nature and assessed the applicant's prospects of rehabilitation as good; 3. the applicant has complied with her onerous bail conditions over four years, including the non-contact condition with the complainant; and 4. the standard supervision condition of an ICO (s 72(2)(a)) is more likely to promote the applicant's rehabilitation, given her major depressive disorder.

Domestic violence offence

1. Since the applicant's offending is a domestic violence offence, ss 4A and 4B of the Sentencing Act also apply. These provisions are set out at [252] above.
2. As to s 4A, the applicant did not contend for a different sentencing option than a supervised order, relevantly an ICO.
3. As to s 4B, I am satisfied that the complainant will be adequately protected by an ICO because (a) the applicant and the complainant ceased to reside in the same house after the offending in June 2017, and (b) the applicant has complied with her onerous bail conditions for a period of over four years, including a non-contact condition with respect to the complainant.
4. As to the safety of persons with whom the applicant is likely to reside, at the time of sentence the applicant was living in shared accommodation at a specified address and proposed to move to new premises, with her older son Mr Zhang. I am satisfied that there is no issue as to the safety of the older son, Mr Zhang, with whom the applicant resumed contact in August 2020 following a variation of the non-contact bail conditions which had prohibited her having contact with Mr Zhang, who was a prosecution witness.
5. Accepting that the imposition of an ICO represents some degree of leniency, I am satisfied that in this case it still incorporates a substantial degree of punishment having regard to the length of the ICO and the obligations which attach to the mandatory conditions in s 73(2) of the Sentencing Act, as prescribed by the regulations, specifically the supervision condition under reg 187 of the Crimes (Administration of Sentences) Regulation 2014 (NSW).
6. In my view, the sentence of imprisonment for two years should be served by way of an ICO for the period specified below, which should commence on the date of this judgment. The ICO will be subject to the two standard conditions under s 73(2) of the Sentencing Act: 1. The offender must not commit any offence. 2. The offender must submit to supervision by a community corrections officer.
7. The applicant spent 58 days in custody before she was granted bail. She then spent a significant period on particularly onerous bail conditions. Section 71 of the Sentencing Act requires an ICO to commence on the day it is imposed; it is not possible to back-date the sentence (ICO). On the other hand, "ss 24(a) and s 47(3) oblige a sentencing court (including this Court when resentencing) to take into account any period of pre-sentence custody served by the offender": Mandranis v R [2021] NSWCCA 97 at [55] (Simpson AJA). This gives rise to a potential injustice whereby an offender does not receive the benefit of the period of pre-sentence custody: Mandranis at [56]. The solution to this problem was addressed by Simpson AJA in Mandranis at [61]: … Provided that the appropriate term of the sentence is determined before consideration is given to an ICO, it would, if an ICO is found to be appropriate, be acceptable for that term to be adjusted by the deduction of a period equivalent to the term of pre-sentence custody, so that the ICO commences on the day it is made (in compliance with s 71) and is co-extensive with the term of imprisonment (as required by s 70). The sentence actually recorded and imposed would be less (by the length of the pre-sentence custody) than the sentence found to be appropriate to meet the purpose of sentencing.
8. I would adopt the same approach and would reduce the term of imprisonment actually recorded and imposed to a period of 1 year and 10 months which is to be served by way of an ICO. This involves a very small amount of rounding down, but that is appropriate given the length of time the applicant complied with onerous bail conditions.

Orders

1. I propose the following orders should be made: 1. Grant leave to appeal against conviction and sentence. 2. Appeal against conviction dismissed. 3. Appeal against sentence allowed. 4. Set aside the sentence imposed by her Honour Payne DCJ on 21 May 2021. 5. In lieu, sentence Biyun Zheng to a term of imprisonment of one year and 10 months commencing on 22 March 2023 to be served by way of an Intensive Correction Order commencing on 22 March 2023 and expiring on 21 January 2025. 6. The Intensive Correction Order is subject to the following conditions: 1. the offender must not commit any offence; and 2. the offender must submit to supervision by a community service officer. 1. The applicant is to report on or before 5 April 2023 to the Parramatta office of Corrective Services NSW, or such other location as may be advised by the Commissioner for Corrective Services.
2. HAMILL J: I have had the great advantage of reading the draft reasons of Gleeson JA. His Honour's comprehensive analysis leaves me with very little to say.
3. I agree that the guilty verdict on the alternative count (in short, reckless wounding) was not unreasonable and is able to be supported on the evidence. On a review of the record of the trial I have reached the same factual conclusions as Gleeson JA, particularly those set out with precision at [188]-[192]. The evidence disproved or eliminated self-defence beyond reasonable doubt, despite the urgency of circumstances, the tendency case concerning the history of marital discord and past abuse and its likely impact on the applicant's belief as to what constituted a reasonable response in the circumstances. Of particular significance, as Gleeson JA demonstrates, is the location of the stabbing within the hallway and the fact that the complainant was carrying a small child at the time.
4. I also agree with Gleeson JA that the reasons of the trial Judge were adequate to fulfil their function, albeit they may not have been perfect. In this regard, it is worth noting that Judge Payne delivered judgment just five days (including a weekend) after closing submissions were delivered.
5. I also agree with Gleeson JA that the sentence imposed was manifestly excessive in the circumstances of this case and this individual applicant. There was no suggestion that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was not crossed, and I proceed on the basis that a sentence of imprisonment was the only appropriate sentence. However, a sentence of 2 years (adjusted to take into account the period of pre-sentence custody), adequately reflects the criminality when one takes into account the objective criminality, the history of the relationship and the applicant's compelling personal circumstances. Ms Zheng has never offended before, and I doubt she will ever offend again. I also agree with Gleeson JA that the sentence should be served by way of an Intensive Correction Order (ICO) with the minimum number of conditions. In reaching that conclusion, and like the presiding Judge, I have considered the relevant statutory considerations including those which generally prohibit the imposition of ICOs in domestic violence cases.
6. I agree with the orders proposed by Gleeson JA.
7. IERACE J: I also agree with the orders proposed by Gleeson JA, his Honour's reasons and the additional observations made by Hamill J at [304].

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