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Court of Criminal Appeal 30 September 2004

Regina v Zhang

[2004] NSWCCA 358

Assault & violence
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE PLEA OF GUILTY APPEAL ALLOWED.

Citation: Regina v Zhang [2004] NSWCCA 358
Court: NSW Court of Criminal Appeal
Date: 30 September 2004
Judge(s): Wood CJ at CL, Hislop J, Smart AJ

Background

The applicant, a Chinese national visiting Australia, had been involved in a business dispute with the victim, who owed him money for furniture. The two men were staying together at the victim's home and had engaged in apparently amicable discussions about the debt over several days before the situation deteriorated sharply on the evening of 9 August 2002.

A violent altercation broke out, the precise circumstances of which were disputed. The sentencing judge accepted that the victim had produced a knife during a struggle inside the home, and that the applicant had then retrieved a meat cleaver from the kitchen. The applicant chased the victim into the street and struck him with the cleaver, inflicting a large, deep wound to the left side of the victim's face that cut to the bone, caused tooth loss, and left permanent scarring and nerve damage. The applicant himself suffered knife wounds, including a punctured lung.

The applicant pleaded guilty in the District Court to malicious wounding with intent to do grievous bodily harm under s 33 of the Crimes Act 1900, in satisfaction of a charge initially framed as wounding with intent to murder. Taylor DCJ sentenced him to eight years' imprisonment with a non-parole period of five years. The applicant then sought leave to appeal to the Court of Criminal Appeal on the ground that the sentence was manifestly excessive.

  • Whether the sentencing judge gave insufficient weight to the extent of provocation involved in the offence, having regard to the victim's prior production of a knife during the altercation inside the home
  • Whether the sentencing judge gave insufficient weight to the applicant's favourable subjective circumstances
  • Whether the resulting starting point of ten years before the plea discount was manifestly excessive

Decision

The Court of Criminal Appeal accepted that the District Court had properly identified the serious objective criminality of the offence. The attack was described as horrendous, involving the use of a meat cleaver against a fleeing victim, causing terrible injuries. The Court acknowledged that community abhorrence of knife and cleaver violence is well established, and that the circumstances of the attack, particularly chasing a victim down the street, were aggravating features properly taken into account.

Despite acknowledging these serious features, Wood CJ at CL concluded that the sentencing judge had given insufficient consideration to the extent of the provocation involved. The prior confrontation inside the home, including the victim producing a knife and the struggle that followed, provided context for the applicant's loss of control, even though his conduct in chasing and attacking the victim outside was entirely unjustified. The favourable subjective circumstances were also held to warrant a lesser sentence.

Hislop J and Smart AJ agreed with Wood CJ at CL. The Court allowed the appeal, quashed the original sentence, and imposed a reduced term.

Orders Made

  • Leave to appeal granted
  • Sentence imposed in the District Court quashed
  • Applicant sentenced to seven years' imprisonment, dating from 19 August 2002
  • Non-parole period of four and a half years set, dating from 19 August 2002 and expiring on 18 February 2007

Key Takeaways

  • Provocation, even where it does not excuse the offending conduct, remains a relevant mitigating factor in sentencing for serious violent offences and must be given adequate weight by the sentencing court.
  • A prior assault by the victim, such as the production of a knife during an earlier struggle, can constitute provocation sufficient to reduce the appropriate starting point for sentence, even where the subsequent retaliatory conduct was wholly unjustified.
  • Under s 33 of the Crimes Act 1900, malicious wounding with intent to inflict grievous bodily harm carries a maximum of 25 years' imprisonment, reflecting the serious gravity with which such offences are regarded.
  • Where a plea of guilty followed discussions with the Crown about the appropriate charge, the Court of Criminal Appeal confirmed that it may appropriately be treated as an early plea, attracting a corresponding discount.
  • In reducing the sentence from eight years to seven years, the Court of Criminal Appeal did not disturb the general sentencing framework applied below; it identified a specific error in the weighing of mitigating factors rather than any broader error of principle.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)

Cases:
- Siganto v The Queen (1998) 194 CLR 656
- Regina v Doorey [2000] NSWCCA 456
- Regina v George [2004] NSWCCA 247
- R v Mioduszewski [2004] NSWCCA 154
- Regina v Morgan (1993) 70 A Crim R 368
- Regina v Rothapfel, NSWCCA, 4 August 1992
- Regina v Trevenna [2004] NSWCCA 43
- Regina v Watt, NSWCCA, 2 April 1997