Citation: R v Wang [2019] NSWDC 929
Court: District Court of New South Wales
Date: 31 July 2019
Judge(s): Norrish QC DCJ
Background
The offender, a Chinese Taiwanese national who had arrived in Australia on a tourist visa in December 2017, travelled to Woolloomooloo late at night in February 2018 to purchase $3,500 worth of cannabis from a contact made via Facebook Messenger. He brought a friend and carried cash, his international driver's licence, and his passport in a backpack.
Upon meeting the vendor and his associates near a parked car, the offender and his companion were attacked, punched, kicked, and thrown to the ground by multiple occupants of the vehicle. The attackers then drove away, taking the backpack and its contents. One man, McNamara, was left behind and fled on foot.
The offender found a knife on the ground, picked it up, and chased McNamara approximately 120 metres into a nearby street. After a heated confrontation in which the offender demanded the return of his money, McNamara yelled "Help, they're going to kill me." The offender then produced the knife and stabbed McNamara in the thigh, causing a 4-centimetre deep laceration that required two surgeries. The offender was arrested the following day. He had been in custody from 19 February 2018 to the date of sentencing.
Legal Issues
- What was the appropriate sentence for reckless wounding under s 35(4) of the Crimes Act 1900, which carries a maximum of seven years' imprisonment and a standard non-parole period of three years?
- How should the standard non-parole period operate in fixing the sentence, following Muldrock v The Queen?
- What weight should be given to the partial self-defence context, the offender's prior good character, his plea of guilty, and his remorse?
- How should the offender's status as a foreign national facing deportation affect the sentencing exercise?
- What penalty, if any, was appropriate for the related drug possession offence?
Decision
Norrish QC DCJ treated the standard non-parole period as a guidepost rather than a starting point, consistent with Muldrock v The Queen. His Honour assessed the objective seriousness of the offence as below mid-range, noting that while the stabbing was serious, it occurred in a context where the offender had just been robbed and violently assaulted by multiple people, including the victim. The facts showed the offender had not initially produced the knife and only did so after the victim cried out that he was going to be killed.
His Honour accepted a partial self-defence element, finding the offender genuinely feared further violence, though the degree of force used was excessive and not fully justified. This placed the offence at the lower end of the scale for this type of wounding. The court also accepted substantial evidence of remorse, prior good character with no criminal history, and a willingness to cooperate with police from an early stage.
Regarding the offender's status as a foreign national, his Honour took into account that imprisonment in Australia carries additional hardship for a person far from family and facing certain deportation. The court noted the victim had himself pleaded guilty to charges of assault occasioning actual bodily harm arising from the same incident, receiving a community correction order. His Honour also noted the absence of a victim impact statement and proceeded on the assumption that the victim had fully recovered.
For the drug offence, his Honour acknowledged that a discrete penalty was required under the Criminal Procedure Act but concluded that, given the time already served, neither a fine nor imprisonment was warranted.
Orders Made
- Reckless wounding (s 35(4) Crimes Act 1900): convicted and sentenced to imprisonment with a non-parole period of 1 year and 5 months commencing 19 February 2018 and expiring 18 July 2019, with a balance of sentence of 1 year and 1 month expiring 18 August 2020.
- Possession of a prohibited drug: convicted; pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, no further penalty imposed.
- The court requested urgent transcription of the remarks on sentence for forwarding to the Parole Authority, Corrective Services, and the Department of Immigration.
Key Takeaways
- The District Court applied Muldrock v The Queen by treating the three-year standard non-parole period for reckless wounding as a legislative guidepost, not a fixed starting point, allowing the sentence to fall well below that benchmark on the particular facts.
- A partial self-defence context, where the offender had just been robbed and assaulted by multiple persons including the victim, was accepted as a significant mitigating factor even though the force used ultimately exceeded what was legally justified.
- Prior good character, genuine remorse, consistent cooperation with police, and an early plea of guilty cumulatively supported a meaningful reduction from the standard non-parole period.
- Where an offender is a foreign national facing deportation, the additional hardship of serving a sentence far from family and community is a relevant consideration in the sentencing exercise.
- Under s 10A of the Crimes (Sentencing Procedure) Act 1999, a court may convict an offender of a related summary offence while imposing no further penalty, particularly where the time already served makes any additional punishment disproportionate.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 35(4) (reckless wounding)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Procedure Act 1986 (NSW), ss 166, 167
Cases
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39
- Thomson and Houlton v R [2000] NSWCCA 309
- Veen (No 2) v R [1988] HCA 14; 164 CLR 465