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District Court 28 January 2022

R v Tang

[2022] NSWDC 1

Assault & violence
CRIME SENTENCE DISPUTED FACTS RECKLESS GRIEVOUS BODILY HARM

Citation: R v Tang [2022] NSWDC 1
Court: District Court of New South Wales
Date: 28 January 2022
Judge: Priestley DCJ

Background

The offender, a 26-year-old man with no prior criminal history, appeared for sentencing on a single charge of recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900. The offence occurred on the morning of 23 August 2020 on a suburban road in Pennant Hills, NSW. The offender's girlfriend had approached a stationary vehicle ahead of them and asked its driver to move forward slightly. An exchange of profanities followed.

The offender then got out of his car and confronted the victim, who had removed his seatbelt and opened his door. The offender struck the victim repeatedly with his right hand, delivering 10 to 12 punches. The assault caused severe injuries including multiple nasal fractures, a fractured cribriform plate, a cerebrospinal fluid leak, and multiple facial lacerations requiring surgery.

The parties agreed on most facts but disputed several aspects of the sequence of events, including whether the victim had moved his car forward before the assault, whether there was any basis for a provocation-related submission in mitigation, what the victim's intention was in opening his car door, and what caused the assault to end.

  • What facts should be found on the disputed matters, and how did those findings affect the sentencing exercise?
  • What was the objective seriousness of the offence, having regard to the nature and extent of the injuries and the circumstances of the assault?
  • Whether subjective factors, including the offender's personal circumstances, mental health, and lack of criminal history, warranted leniency.
  • Whether the offender was eligible for an Intensive Corrections Order (ICO) rather than full-time custody, and whether an ICO would adequately serve the sentencing purposes in s 3A of the Crimes (Sentencing Procedure) Act 1999.

Decision

Priestley DCJ resolved the disputed facts after hearing evidence from the victim, an independent witness, the offender, and the offender's girlfriend. His Honour accepted the victim's evidence that he had moved his car forward before the exchange escalated, and that his decision to open the car door was motivated by a desire to be in a better position if a confrontation arose. The court found that whatever verbal provocation occurred, it fell well short of justifying the sustained physical assault that followed.

On objective seriousness, the court treated the offence as sitting in the moderate range. The injuries were severe and required surgery, and the assault involved multiple blows to the head and face. The offender had approached the victim's car and initiated the physical confrontation, and the conduct could not be minimised by reference to the victim's use of offensive language.

The court gave significant weight to the offender's subjective circumstances. These included his lack of any prior criminal history, genuine remorse, good prospects for rehabilitation, stable employment, and evidence of mental health difficulties that had been addressed through counselling. The offender had been engaged with a psychologist and the court noted the therapeutic benefit of continuing that treatment.

Turning to the question of full-time custody versus an ICO, the court applied the statutory framework in s 66 of the Crimes (Sentencing Procedure) Act 1999. Priestley DCJ concluded that the purposes of sentencing, including community safety (the paramount consideration under s 66(1)), were better served by an ICO than by a term of full-time detention. The court observed that short custodial terms can be counterproductive to rehabilitation and that the offender's risk of reoffending was better addressed in the community under supervision.

Orders Made

  • The offender was convicted of the offence under s 35(2) of the Crimes Act 1900.
  • Sentenced to 18 months imprisonment, commencing 28 January 2022 and expiring 27 July 2023, to be served by way of an Intensive Corrections Order (ICO).
  • Standard ICO conditions imposed, including no further offending and supervision by a Community Corrections Officer (with attendance at the Sydney City office required by 4 February 2022).
  • Additional condition: 150 hours of community service work.
  • Treatment condition: attendance upon a minimum of 10 further counselling sessions with the offender's treating psychologist, with first contact to be made within seven days of the date of sentence.

Key Takeaways

  • The District Court confirmed that a standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 functions as a legislative guidepost relevant to all cases, not only those falling in the middle of the range of seriousness.
  • Where disputed facts arise on sentence, the court resolves those disputes by weighing all admissible evidence, including the evidence of the offender, the victim, and independent witnesses. Disputed passages in an agreed facts document, while not themselves evidence, may assist in identifying the scope of the controversy.
  • Verbal provocation, even involving offensive language, does not provide substantial mitigation where the physical response is grossly disproportionate and involves a sustained assault causing serious injury.
  • Under s 66 of the Crimes (Sentencing Procedure) Act 1999, community safety is the paramount consideration when a court assesses whether to impose an ICO. A court may conclude that the risk of reoffending is better managed through supervised community-based orders than through short periods of full-time imprisonment.
  • Genuine remorse, an absence of prior criminal history, demonstrated rehabilitation, and ongoing mental health treatment can collectively support a conclusion that an ICO adequately satisfies the sentencing purposes in s 3A, even for an offence carrying a four-year standard non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 54A, 66(1), 66(2), 66(3), 73A

Cases
- R v Buddle [2005] NSWCCA 82
- Blanch v R [2019] NSWCCA 304