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District Court 8 March 2018

R v Zhou

[2018] NSWDC 157

Assault & violenceTheft & propertyDomestic & family violence
CRIMINAL LAW SENTENCE HOME INVASION DOMESTIC VIOLENCE SENSE OF ENTITLEMENT ASSAULT OCCASIONING ACTUAL BODILY HARM.

Citation: R v Zhou [2018] NSWDC 157
Court: District Court of New South Wales
Date: 8 March 2018
Judge: Berman SC DCJ

Background

The offender and the victim had previously been in a relationship and shared a child together. Following their separation, the victim had custody of the child and the parties were living apart. The offender, a taxi driver, had at some point been given a key to the victim's residence to facilitate access to their son.

On 20 March 2017, the offender drove past the victim's home and saw the car of a mutual friend parked outside, with only the bedroom light on. He suspected the victim had formed a new relationship. He entered the premises using the key, retrieved a kitchen knife of approximately 20 centimetres in length from a drawer, and went upstairs to the victim's bedroom.

Upon entering the bedroom, the offender found the victim and the mutual friend together. He yelled at them, held the knife in a threatening manner, and said "I'm going to kill you guys." A struggle followed. During it, the offender bit the victim on the forearm causing bruising and swelling, and the mutual friend sustained a cut to his finger from the knife. The offender's young son was asleep in the next bedroom throughout the incident. The offender ultimately dropped the knife and left, then attended Rose Bay Police Station and made admissions in a recorded interview.

  • What was the appropriate sentence for the offence of aggravated break and enter and commit a serious indictable offence (assault occasioning actual bodily harm), carrying a maximum of 20 years imprisonment and a standard non-parole period of five years?
  • What was the appropriate sentence for the offence of assault occasioning actual bodily harm on the mutual friend, carrying a maximum of five years imprisonment?
  • Whether full-time imprisonment was warranted in the circumstances.
  • Whether the standard non-parole period should be imposed for the home invasion offence.
  • What weight to give the offender's early guilty plea, good character, and subjective circumstances.

Decision

Berman SC DCJ characterised the offending as serious on both objective and subjective grounds. The home invasion involved an armed entry into a residence, a specific threat to kill, and took place while the offender's own child slept nearby. Although the physical injuries were not among the most severe forms of actual bodily harm to come before the courts, the psychological impact on both victims, as described in their victim impact statements, was significant and entirely foreseeable.

The court found that general deterrence was an important sentencing consideration. The judge observed that people are entitled to end relationships without fear that a former partner will force entry into their home out of jealousy and a sense of entitlement. The court was satisfied that only a sentence of full-time imprisonment was appropriate in the circumstances.

In the offender's favour, the court accepted his early guilty plea (attracting a 25 per cent discount), his lack of any meaningful prior criminal history, his otherwise good character, and his conduct in stopping the assault, relinquishing the knife, and presenting himself to police. The court departed from the standard non-parole period for the home invasion offence, with reasons set out in the remarks on sentence.

The court imposed an aggregate sentence rather than separate consecutive or concurrent terms, reflecting the overall criminality of the conduct as a whole.

Orders Made

  • Aggregate sentence of imprisonment of two years and three months, with a non-parole period of 15 months, commencing 8 March 2018 and with the non-parole period expiring 7 June 2019.
  • (Indicative component sentences, had no aggregate been imposed: aggravated break and enter, non-parole period of 12 months, head sentence of 24 months; assault occasioning actual bodily harm, six months imprisonment.)

Key Takeaways

  • The District Court confirmed that home invasion offences arising from jealousy and a claimed sense of entitlement toward a former partner are treated as matters of considerable seriousness, with general deterrence weighing heavily in the sentencing exercise.
  • A guilty plea at the earliest opportunity attracted a 25 per cent reduction to the sentence that would otherwise have been imposed.
  • Where an offender is armed with a weapon, makes an explicit threat to kill, and commits the offending while a child is present on the premises, those factors each aggravate the objective gravity of an aggravated break and enter charge.
  • Physical injuries that fall short of the most severe forms of actual bodily harm do not diminish the significance of the psychological harm suffered by victims of home invasion, which the court treated as foreseeable and properly reflected in the sentencing assessment.
  • Departing from the standard non-parole period was available on the facts, with the court's reasons for doing so set out in the sentencing remarks, notwithstanding the overall seriousness of the home invasion offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): aggravated break and enter and commit serious indictable offence (maximum 20 years, standard non-parole period of five years); assault occasioning actual bodily harm (maximum five years)

Cases cited: No cases were cited in the judgment.