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District Court 19 March 2020

R v Zhou

[2020] NSWDC 266

Assault & violenceFirearms & weapons
CRIME SENTENCE

Citation: R v Zhou [2020] NSWDC 266
Court: District Court of New South Wales
Date: 19 March 2020
Judge(s): Colefax SC DCJ

Background

The offender, a man of Chinese origin who came to Australia as a refugee at age 15, was convicted by jury of discharging a firearm with intent to cause grievous bodily harm, contrary to s 33A(1)(a) of the Crimes Act 1900 (NSW). The offending occurred on 26 March 2017, when the offender was 48 years old.

The victim was a young man with a close family connection to the offender, effectively regarded as a nephew. The victim attended the offender's home to retrieve his car, which was on the property without his permission. An argument ensued over the car and an alleged debt. As the victim and his friends began to leave, the offender produced a black pistol and fired four shots at the victim at close range. One bullet struck the victim and its remnants remain in his body permanently.

The offender had a significant criminal history, including three prior firearms offences and multiple offences of violence, and had previously served a custodial sentence. He was convicted at trial and denied responsibility throughout.

  • What sentence was appropriate for an offence of discharging a firearm with intent to cause grievous bodily harm, having regard to the standard non-parole period of nine years?
  • What weight should be given to the offender's diagnosed psychiatric condition (Intermittent Explosive Disorder) as a mitigating factor?
  • Whether the offender's prior criminal history constituted an additional aggravating factor beyond its general relevance to sentencing.
  • Whether special circumstances existed to justify departing from the standard ratio of non-parole period to head sentence.

Decision

His Honour assessed the objective seriousness of the offending as slightly below the mid-range for offences of this kind. The offender fired four shots at close range at a person he regarded as a family member, one shot penetrated the victim's body, and the remnants remain permanently embedded. Notwithstanding the relationship context, the violence was serious and unprovoked by any legitimate grievance.

A psychologist's report identified Intermittent Explosive Disorder as the underlying explanation for the offender's conduct. However, His Honour found the evidence of that diagnosis provided limited mitigation in the circumstances. There was no evidence the offender had previously been treated specifically for the disorder, and the psychologist offered no opinion on the prospects of successful treatment. A prior 18-month engagement with a psychologist under Probation and Parole conditions remained unexplained as to its subject matter.

His Honour declined to treat the prior criminal history as an additional aggravating factor beyond what it already indicated, namely the loss of leniency afforded to first offenders. The Crown's submission that the history was an additional aggravating factor was not challenged by defence counsel, but His Honour independently concluded it did not quite meet the threshold for that characterisation.

The offender expressed no remorse following his conviction and continued to deny responsibility. His Honour assessed rehabilitation prospects as extremely guarded, noting the untreated disorder, the lack of remorse, and the serious criminal history. No special circumstances were found to justify altering the standard non-parole period ratio. The sentence was backdated to account for 909 days of pre-sentence custody.

Orders Made

  • The offender was sentenced to 8 years imprisonment for discharging a firearm with intent to cause grievous bodily harm.
  • A non-parole period of 6 years was fixed, backdated to commence on 22 September 2017, with eligibility for parole from 21 September 2023.
  • A balance of term of 2 years was fixed, commencing 22 September 2023 and expiring 21 September 2025.

Key Takeaways

  • A diagnosis of Intermittent Explosive Disorder may be relevant to sentencing, but its mitigating weight is substantially reduced where there is no evidence of prior treatment for the condition and no expert opinion on prospects of successful future treatment.
  • The District Court declined to treat a prior criminal history as an additional aggravating factor on the specific facts, notwithstanding that the history was serious and included prior firearms and violence offences; it was sufficient that the history denied the offender leniency available to a first offender.
  • Continued denial of responsibility following conviction, and the absence of any expressed remorse, are significant factors bearing on rehabilitation prospects, even where a psychiatric condition may partly explain the offending behaviour.
  • Under s 33A(1)(a) of the Crimes Act 1900 (NSW), the maximum penalty is 25 years imprisonment with a standard non-parole period of 9 years; the sentence here of 8 years with a 6-year non-parole period reflected objective seriousness assessed as slightly below mid-range.
  • No special circumstances existed to depart from the standard ratio of non-parole period to head sentence where rehabilitation prospects were poor and the protective purposes of the sentence were prominent.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33A(1)(a) (discharging a firearm with intent to cause grievous bodily harm)

Cases cited: None recorded in the judgment.