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Court of Criminal Appeal 22 March 2023

Zheng v R

[2023] NSWCCA 64

Assault & violenceDomestic & family violence
SENTENCE CUSTODY

Citation: Zheng v R [2023] NSWCCA 64
Court: NSW Court of Criminal Appeal
Date: 22 March 2023
Judges: Gleeson JA, Hamill J, Ierace J

Background

The applicant was a woman who, on 4 June 2017, stabbed her estranged husband in the hallway of their shared Auburn home during a prolonged verbal argument about mortgage and financial matters. The couple had separated in 2014 but continued to live together in separate rooms. At the time of the stabbing, the complainant was carrying the couple's six-year-old son in his arms.

The applicant was charged with wounding with intent to cause grievous bodily harm (Count 1) and, in the alternative, reckless wounding (Count 2). She admitted to the stabbing but relied on self-defence, pointing to a history of volatile interactions and alleged prior physical violence by the complainant.

Her first trial ended with the jury being discharged in August 2019. Her second trial was conducted as a judge alone trial over nine days in 2020. Judge Payne acquitted the applicant on Count 1 but convicted her on Count 2, which carries a maximum penalty of seven years imprisonment with a standard non-parole period of three years. The applicant was subsequently sentenced to two years and six months imprisonment with a non-parole period of ten months. She then sought leave to appeal against both conviction and sentence.

  • Whether the verdict of guilty on Count 2 (reckless wounding) was unreasonable and unsupported by the evidence, in particular given the applicant's self-defence claim and the history of the relationship
  • Whether the trial judge's written reasons were sufficient to satisfy the requirement under s 133(2) of the Criminal Procedure Act 1986 (NSW), which applies to judge alone trials and requires that reasons disclose the basis for findings of guilt
  • Whether the sentence of two years and six months imprisonment with a non-parole period of ten months was manifestly excessive

Decision

Conviction appeal dismissed. The Court found that the verdict of guilty on Count 2 was not unreasonable and was open on the evidence. Gleeson JA identified several key facts that the evidence supported: the complainant was stabbed in the back while carrying a small child, and he had been moving away from the applicant in the hallway at the time. The Court concluded that self-defence was disproved beyond reasonable doubt, notwithstanding the applicant's evidence about the history of the relationship and the alleged impact of past abuse on her perception of the threat.

On the reasons ground, the Court acknowledged that the trial judge's reasons were not perfect, particularly noting that judgment was delivered just five days after closing submissions. However, the Court found the reasons were adequate to fulfil their function under s 133(2) of the Criminal Procedure Act. The reasons sufficiently disclosed the basis on which the judge found guilt established and rejected self-defence.

Sentence appeal allowed. The Court held that the original sentence of two years and six months was manifestly excessive when weighed against the objective seriousness of the offending, the history of the relationship, and the applicant's personal circumstances. All three judges agreed that a sentence of two years imprisonment adequately reflected the criminality. The applicant had no prior offending history, and the court regarded the prospect of reoffending as very low.

The Court further determined that the two-year sentence should be served by way of an Intensive Correction Order (ICO), noting the relevant statutory provisions, including those that generally restrict the imposition of ICOs in domestic violence cases. The sentence was adjusted downward in recognition of pre-sentence custody already served, producing a final term of one year and ten months to be served by ICO.

Orders Made

  • Leave to appeal against conviction and sentence granted
  • Appeal against conviction dismissed
  • Appeal against sentence allowed
  • Original sentence (imposed 21 May 2021) set aside
  • In lieu, sentence of one year and ten months imprisonment commencing 22 March 2023, to be served by way of an Intensive Correction Order expiring 21 January 2025
  • ICO conditions: the offender must not commit any offence; and the offender must submit to supervision by a community service officer
  • The applicant directed to report on or before 5 April 2023 to the Parramatta office of Corrective Services NSW (or such other location as advised by the Commissioner)

Key Takeaways

  • In a judge alone trial, s 133(2) of the Criminal Procedure Act 1986 (NSW) requires reasons to disclose a sufficient basis for findings of fact, but the Court of Criminal Appeal confirmed that reasons need not be perfect to satisfy that threshold, particularly where judgment is delivered shortly after closing submissions.

  • A conviction for reckless wounding will not be set aside as unreasonable simply because a self-defence claim is raised; the court will examine the whole of the evidence, and here specific features, including the location of the wound and the complainant holding a child, were critical to rejecting self-defence beyond reasonable doubt.

  • Where a history of domestic abuse is relied upon to support a self-defence claim, the Court acknowledged that history as a relevant consideration under the tendency evidence framework, but found it insufficient to overcome the physical evidence in this case.

  • Manifestly excessive sentences can be corrected on resentence even where the sentencing threshold (the requirement under s 5 of the Crimes (Sentencing Procedure) Act 1999 that a court not impose imprisonment unless no other sentence is appropriate) has been properly crossed; the question of quantum and mode of service remains separately open for appellate correction.

  • Statutory restrictions on ICOs in domestic violence cases do not operate as an absolute bar; the Court considered and applied the relevant provisions and, in the circumstances of this case, determined an ICO was the appropriate mode of serving the adjusted term of imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a), 35(4)
- Criminal Procedure Act 1986 (NSW), s 133(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 3A, 4A, 4B, 5, 7, 21A, 24, 47, 66, 68, 71, 72, 73, 73A
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
- Crimes (Administration of Sentences) Regulation 2014 (NSW), reg 187
- Criminal Appeal Act 1912 (NSW), s 5
- Evidence Act 1995 (NSW), ss 38, 128

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Dansie v The Queen [2022] HCA 25
- DL v The Queen (2018) 266 CLR 1
- Filippou v The Queen (2015) 256 CLR 47
- Liberato v The Queen (1985) 159 CLR 507
- M v The Queen (1994) 181 CLR 487
- Oblach v R (2005) 65 NSWLR 75
- Obeid v R (2017) 96 NSWLR 155
- Moodie v R [2020] NSWCCA 160
- Mandranis v R [2021] NSWCCA 97
- Clarke-Jeffries v R [2019] NSWCCA 56