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District Court 6 March 2020

R v Zhou

[2020] NSWDC 343

Assault & violence
CRIME SENTENCE RECKLESSLY CAUSE GRIEVOUS BODILY HARM INJURIES TO VICTIM AGGRAVATING FEATURE SERIOUSNESS OF OFFENCE

Citation: R v Zhou [2020] NSWDC 343
Court: District Court of New South Wales
Date: 6 March 2020
Judge: King SC DCJ

Background

The offender, a 32-year-old Chinese national working as a gyp-rocker in Sydney, was sentenced for recklessly causing grievous bodily harm to a younger colleague and acquaintance. The two men knew each other socially and professionally, often sharing meals, drinks, and card games together with a mutual friend.

On the evening of 23 August 2018, an argument broke out between the offender and the victim at a licensed hotel on Beamish Street, Campsie, following a dispute over a poker machine. Both men were asked to leave the premises. After being escorted out, the offender walked to his nearby vehicle, retrieved a knife, and returned to confront the victim outside the hotel's Beamish Street entrance.

CCTV footage captured what followed: the offender pulled out the knife and struck the victim at least ten times, with the majority of stab wounds inflicted after the victim had fallen to the ground. The offender then returned to his vehicle and drove away. Emergency services attended and transported the victim to St George Hospital.

  • What objective seriousness should be attributed to the offence, having regard to the nature and manner of the attack and the injuries caused?
  • What weight should be given to the standard non-parole period of four years as a guidepost?
  • What discount applied for the early guilty plea?
  • What subjective factors were relevant to the offender's circumstances?
  • Whether a fixed term or a head sentence with a non-parole period was the appropriate sentencing structure.

Decision

The court characterised the offending as seriously objectively grave. The offender deliberately retrieved a weapon from his vehicle and returned to confront the victim, and the stabbing continued even after the victim had fallen to the ground. The judge described the conduct as "frenzied" and "berserk" in character once the threshold of using the knife had been crossed.

The victim sustained multiple stab wounds to the chest, back, and buttocks. The wounds to his chest and upper back caused a collapsed left lung, requiring intubation, an intercostal chest drain, and surgery. The court treated the severity and multiplicity of the injuries as a significant aggravating feature.

The offender entered a guilty plea at the earliest opportunity and received a 25 per cent discount on that basis, consistent with the guideline in Thomson & Houlton. The court applied the standard non-parole period of four years as a guidepost, as required even where a plea of guilty has been entered.

On the question of sentencing structure, the court rejected submissions from both parties that a fixed term was appropriate. The judge concluded that a non-parole period served an important purpose by giving the offender an incentive to address underlying issues, including anger management, while in custody. General deterrence was identified as a weighty consideration given the serious nature of a knife attack on a member of the public in a public place.

Orders Made

  • The offender was convicted of recklessly inflicting grievous bodily harm contrary to s 35(2) of the Crimes Act 1900.
  • Total sentence of four years imposed, comprising a non-parole period of two years and six months and a balance of term of one year and six months.
  • Sentence backdated to commence 24 August 2018, the date of arrest.
  • Non-parole period to expire 23 February 2021, with eligibility for parole from that date.
  • Total sentence to expire 23 August 2022.

Key Takeaways

  • The District Court treated the retrieval of a weapon from a vehicle and a return to the scene as a deliberate escalatory step that significantly elevated the objective seriousness of the offending, even on a charge of recklessly (rather than intentionally) causing grievous bodily harm.
  • A 25 per cent discount for an early guilty plea was applied consistently with the Thomson & Houlton guideline, with the standard non-parole period of four years retained as a relevant guidepost notwithstanding the plea.
  • Where both the Crown and the defence agreed that a fixed term was appropriate, the court was not bound by that agreement and imposed a standard non-parole period structure instead, reasoning that the parole mechanism provided a meaningful incentive for rehabilitation in custody.
  • General deterrence carries substantial weight in sentencing for serious knife attacks in public places, even where the offender has no prior record and entered an early plea.
  • Conduct continuing after a victim has fallen to the ground and become vulnerable is a factor that courts will treat as aggravating the circumstances of the physical assault.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(2) (recklessly cause grievous bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Thomson & Houlton (2000) 49 NSWLR 383 (guilty plea discount guideline)
- R v Chisari [2006] NSWCCA 19
- R v Dickinson [2004] NSWCCA 457
- R v Hampton [1999] NSWCCA 341