Director of Public Prosecutions v Xia

[2024] ACTSC 295

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Xia

Citation: 

[2024] ACTSC 295

Hearing Date: 

24 September 2024

Decision Date: 

24 September 2024

Before:

McWilliam J

Decision: 

(1) For the offence of aggravated common assault contrary to s 26 Crimes Act1900 (ACT) (CC2023/3826) the offender is convicted and sentenced to a term of imprisonment for 6 months (reduced from 8 months to take account of the offender’s guilty plea), to be backdated to 22 September 2024 and to conclude on 21 March 2025.

(2) Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the sentence is to be suspended from 24 September 2024, upon the offender entering into a good behaviour order in accordance with order 3, with core conditions only imposed pursuant to s 86 of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act).

(3) Pursuant to s 13 of the Sentencing Act, a good behaviour order of 12 months (24 September 2024 to 23 September 2025) is made upon the offender signing or giving an undertaking to comply with the offender’s good behaviour obligations under the CSA Act.

Catchwords: 

CRIMINAL LAW – Judgment and Punishment – Sentence – aggravated common assault – family violence offence – where genuine remorse established – rehabilitation prioritised by offender before sentence – low risk of re-offending – no relevant criminal history – sentence of imprisonment immediately suspended upon entering a good behaviour order

Legislation Cited: 

Crimes Act1900 (ACT) ss 26, 48C

Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12, 13, 33, 34B, 35(3)

Crimes (Sentence Administration) Act 2005 (ACT) s 86(1)

Family Violence Act 2016 (ACT) Preamble

Cases Cited: 

DPP v Howe [2024] ACTSC 178

DPP v Ledbrook-Miller [2024] ACTSC 254

Hili v The Queen [2010] HCA 45; 242 CLR 520

Laipato v The Queen [2020] ACTCA 35

Markarian v The Queen [2005] HCA 25; 228 CLR 357

McLeod v The Queen [2018] ACTCA 59

MT v The Queen [2021] ACTCA 26; 17 ACTLR 22

Muldrock v The Queen [2011] HCA 39; 244 CLR 120

Robertson v DPP [2024] ACTCA 26

R v Beary [2004] VSCA 229; 11 VR 151

R v Kirkwood [2022] ACTSC 148

R v Forrest (No 2) [2017] ACTSC 83

R v Kilic [2016] HCA 48; 259 CLR 256

R v Lindsay [2020] ACTCA 25

R v Miller [2019] ACTCA 25; 279 A Crim R

R v Nicholas; R v Palmer [2019] ACTCA 36

Parties: 

Director of Public Prosecutions ( Prosecution)

Shao Chang Xia ( Offender)

Representation: 

Counsel

C Muthurajah ( DPP)

J Maher ( Offender)

Solicitors

ACT Director of Public Prosecutions ( Prosecution)

Kamy Saeedi Law ( Offender)

File Number:

SCC 247; 248 of 2023

McWILLIAM J:         

1․Common experience suggests that across the Territory on any given day, people may come home at a time that causes their partner consternation, producing disagreement, which may then escalate into a dispute about other issues. This case is an example of what not to do when faced with that situation. Mr Shao Chang Xia is before the Court for sentence following his plea of guilty to one rolled-up count of aggravated common assault, contrary to s 26 of the Crimes Act1900 (ACT) (Crimes Act), which was committed against his wife. The circumstances of aggravation were that the assault involved family violence: s 48C of the Crimes Act.

2․The maximum penalty for the offence of aggravated common assault is a term of imprisonment for three years.

3․The Court had the benefit of detailed and helpful written and oral submissions prepared by counsel for each party, parts of which have been incorporated into these reasons for sentence where appropriate.  The level of assistance provided was such as to enable the Court to deliver these sentencing reasons ex tempore.

Facts constituting the offence

4․The following summary is drawn from the agreed statement of facts upon which the sentencing hearing proceeded.  The incident occurred on 16 April 2023.  An argument broke out sometime after 6pm between the offender and his wife, the victim.  She did not like that when the offender had gone for a walk around 4.30pm, he had returned after dark.  The offender became upset and accused the complainant of trying to control him and restrict his freedom.

5․The argument continued for several hours and progressed to other issues within the couple’s relationship such as a mortgage, jobs and finances. At around 8.30pm, the victim was sitting on the couch watching television.  The offender approached the victim and stood close to her.  The argument escalated and the offender began to raise his voice.

6․The offender then leaned over the victim and grabbed her by her upper shoulders and pushed the victim backwards into the couch, restraining her there.  The offender yelled words to the effect of “what about if I hold you like this, I try to stop you from moving, this is like someone restrict your movement, do you think this is good?”

7․The victim grabbed a cushion and held it between herself and the offender.  The victim used one hand to push the offender away and told him to back off and that she did not want to argue in that manner.  The offender then released the victim and she was able to stand up and walk away.  The offender began to calm down again but the argument continued.

8․A short time later the offender and the victim were in the kitchen and the offender was holding a kitchen knife in his hand.  He began yelling at the victim again.

9․The offender suddenly came very close to the victim, grabbed her with one hand and pushed her against the fridge.  The offender held the victim there and was yelling into her ear.  As he did this, the offender was still holding the kitchen knife in his other hand, close to the victim’s torso and making threats, the substance of which was not before the Court.  The victim was unable to move and felt very threatened by the offender’s actions.  The incident lasted two to three minutes.

10․The offender then let go of the victim and whilst still facing her, threw the knife against a wall behind him, which caused the knife to break into pieces.  The offender walked away and the victim told him to calm down.

11․The couple slept separately that night and did not speak to each other in the morning.  The victim reported the offence to the police the following day, on 17 April 2023, in the company of a friend.  The offender was arrested later that evening.

Court’s sentencing task

12․By way of a general explanation of the Court’s task, it is to sentence the offender by reference to the sentencing objectives set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).  They include adequate punishment, “in a way that is just and appropriate”, denunciation of the conduct, general and specific deterrence, protection of the community, promotion of rehabilitation, making the offender accountable and recognising the harm done to the victim and the community.

13․The Court must achieve those objectives in accordance with the principle of individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56].

14․Mandatory relevant considerations are set out in s 33 of the Sentencing Act, as well as s 34B in this case, due to the offence being one involving family violence. These have been considered below to the extent relevant in the circumstances of this offender.

Nature and circumstances of the offence (s 33(1)(a) of the Sentencing Act)

15․The requirement to consider the nature and circumstances of the offence proceeds upon a number of established principles.

Applicable principles

16․The evaluation of the nature and circumstances of the offence is “objective” in the sense that the Court does not consider matters personal to the offender and determines the seriousness “wholly by reference to the nature of the offending”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27].

17․Subjective considerations, or matters personal to the offender, are separate considerations: McLeod v The Queen [2018] ACTCA 59 at [12].

18․The sentence which the Court imposes must be proportional to the objective seriousness of the offence: R v Miller [2019] ACTCA 25; 279 A Crim R (Miller) at [37], cited in R v Lindsay [2020] ACTCA 25 at [32].

19․Part of the Court’s assessment upon sentence is to consider where the facts of the particular offence and offender lie in the “spectrum” from the least serious instances of the offence to the most serious, taking into account the nature of the crime and the circumstances of the criminal: R v Kilic [2016] HCA 48; 259 CLR 256 at [19].

20․The maximum penalty for an offence provides a yardstick against which to assess the objective seriousness of the offences before the Court: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31].

21․The Court is obliged to consider the factors bearing upon the objective seriousness of each offence, although not to explicitly specify whether a particular offence falls into the low, mid or upper range of such offences: Miller at [22]. It has been said that when any offence is placed on a spectrum of seriousness that extends from low range through mid-range to high range, the placement (without more) invites a simplistic approach to sentencing that may be generally unhelpful, such that it is preferable to articulate the factors that inform the character of an offence’s objective seriousness: Laipato v The Queen [2020] ACTCA 35 at [156].

Increased seriousness of a rolled-up offence

22․The offender’s conduct involved more than one act of assault over the course of a single incident.  It has been charged as a rolled-up offence, a procedure that can only be followed with the consent of the accused: R v Forrest (No 2) [2017] ACTSC 83 (Forrest (No 2)) at [161].

23․The rolled-up count, though comprehending a number of offences, is for sentencing purposes, the one offence: R v Beary [2004] VSCA 229; 11 VR 151 at [14], cited in Forrest (No 2) at [163], where Refshauge J went on to set out the approach taken by the Court at [163] – [164]:

163. …The maximum penalty for the offence applies but only one sentence can be imposed. The sentence is not invariably the sum of the individual sentences that could have been imposed had the individual offences been separately charged, though it may be: R v Samia [2009] VSCA 5 at [12]. It, therefore, not only considerably simplifies the task of a sentencing judge, but it provides a considerable benefit to the offender: R v Jones at [13].

164. Nevertheless, the criminality encompassed in a rolled-up count is greater than that of an individual count: Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73 at [82]; Ly v The Queen [2014] FCAFC 175; 227 FCR 304 at 331; [125]; R v Richard [2011] NSWSC 866 at [65]. This may also have a bearing on accumulation and concurrency: R v De Leeuw [2015] NSWCCA 183 at [116].

Family violence offence

24․As this is a family violence offence, the Court must also consider the nature of family violence and the context of the offending: s 34B of the Sentencing Act and the Preamble to the Family Violence Act 2016 (ACT) (Family Violence Act).  The statutory considerations that are relevant here are:

(a)Family violence is unacceptable in any form;

(b)Family violence is predominantly committed by men against women;

(c)Freedom from family violence is a human right which the justice system both respects and protects;

(d)The offending occurred at the victim’s home; and

(e)The offence is not a “serious family violence” offence because it is not punishable by imprisonment for 5 years or more.

Aggravated Common Assault

25․In R v Kirkwood [2022] ACTSC 148, Kennett J stated in relation to common assault at [65]:

Common assault can reflect a wide range of circumstances and encompasses both actual violence and threatened violence that causes the complainant to fear immediate harm. Where the offence is constituted by a threat of violence, the Court should consider the nature of the conduct that caused the complaint to fear immediate harm.

26․Here, as submitted by the offender, the family violence context is reflected in the aggravated form of the offence and the increased maximum penalty that provides the yardstick.  Because of that aggravated element, it is important not to take into account the family violence context twice.   

27․Otherwise, the offence occurred at the home the victim and offender shared.  It involved multiple forms of physical conduct, being the yelling, threats, actual force and presence of a knife accompanying the threats.  I accept the offender may have had no intention to use the knife against the victim, but the assault itself was intentional and the fact is he did not put the knife down. Approaching someone in anger with a knife poses a very serious threat of harm.  Whatever the offender’s intention was in relation to the knife, that would not have been something understood by the victim at the time and the throwing of the knife at a force sufficient to cause it to break apart from its handle is indicative of someone who had manifestly lost control of their temper.  The entire incident would have been very frightening for the victim, as accepted by the offender.

28․The rolled-up conduct of the offender represents a serious example of common assault.

Plea of guilty (s 35(3) of the Sentencing Act)

29․The offender pleaded guilty on 28 March 2024.  This was shortly before his trial was due to begin on 2 April 2024. However, the prosecution accepted that the plea that was ultimately accepted following negotiations between the prosecution and the defence was in line with an earlier offer to plead guilty that had been made when the matter was still in the Magistrates Court in August 2023.

30․The principles guiding the exercise of the Court’s discretion to apply a discount in respect of a guilty plea have recently been set out in Robertson v DPP [2024] ACTCA 26 at [23]-[26] and I will apply those principles without repeating them. The point of significance here is that although a late plea will commonly attract a discount of 10 percent, the law recognises that unusual circumstances may exist where there is an earlier offer by the accused to plead to the charges, which the prosecution only accepted at the last minute: R v Nicholas; R v Palmer [2019] ACTCA 36 at [51].

31․To this may be added the decision of DPP v Ledbrook-Miller [2024] ACTSC 254 (Ledbrook-Miller), a case where the prosecution had similarly accepted an offer to plead guilty that had been made at a much earlier time.  Baker J there agreed (at [41]-[42]) with a submission that the diminution in the utilitarian value arose as a result of the prosecution and afforded the offender in that case the common maximum discount applied of 25%.

32․I have considered the fact of the guilty plea and the utilitarian value in the victim being spared from giving evidence against her husband.  I have considered the timing of the plea and the fact that it related to negotiations, but that it was also offered in similar terms at a much earlier date.  I have taken into account the seriousness of the offence as set out above and the effect of the offence on the victim and her family, noting that the victim’s mother has here written in support of the offender (discussed below).  I accept that this is a case where it is appropriate to apply a 25% discount.

Subjective Circumstances of the offending (s 33(1)(m) of the Sentencing Act)

33․A pre-sentence report and an intensive correction assessment, each dated 12 September 2024, were before the Court.  I have read and accept what has been reported in them, although the summary that follows is brief and more general than the detail of those reports. 

34․The offender was 43 at the time of the offence. His background is unremarkable from a criminogenic perspective and exemplifies another of the matters referred to in the Preamble to the Family Violence Act, namely that family violence occurs in all areas of society, regardless of socioeconomic status and culture (relevantly here). 

35․The offender reported a traditional Chinese upbringing with no exposure to traumatic events.  He maintains supportive familial relationships and has maintained his relationship with his wife despite the offence.  This is largely due to the couple addressing their relationship issues through counselling and confirmation of that was before the Court.  The offender’s mother-in-law wrote to the Court in support of the offender.  What I draw from that is that the offender’s conduct is very much viewed as an isolated event.

36․He is tertiary educated, has stable accommodation and employment and a degree of financial security through that employment.  There are no medical issues and no difficulties with alcohol or drug use.  

37․He was assessed as low risk of general reoffending and I accept that assessment.

Remorse (s 33(1)(w) of the Sentencing Act)

38․The offender has demonstrated genuine remorse. He did not attempt to minimise his actions. He provided insight into the escalation of his behaviour on the day of the offence and the impact of his actions on his partner. The authors of the reports were of the view that he appeared to have appropriate victim empathy. This was consistent with the offender’s letter to the Court which was adopted in the witness box under affirmation and therefore became sworn evidence. He was not cross-examined and I accept the contents of the letter. The offender reported that the counselling he undertook taught him strategies to manage his emotions and communicate more effectively to resolve conflict. Such treatment is a further matter to take into account pursuant to s 33(1)(t) of the Sentencing Act.

Criminal history (s 33(1)(m) of the Sentencing Act)

39․The offender had several convictions recorded in NSW in 2001 in relation to entirely different offences relating to false trademarks.  I have put those to one side.  They were so long ago and of such a different nature that I think it may fairly be said what occurred here was an uncharacteristic aberration.  This is supported by other character references that were put before the Court. That said, he is not entitled to the same degree of leniency that he may have expected had he come before the Court with no criminal history at all.

Victim Impact

40․No victim impact statement was before the Court.  Although I would not draw any inference that there was no impact to this victim, in a sign of clear strength and resilience (without speculating as to forgiveness and commitment) the victim was in court to support her husband.  The evidence established that following counselling, the couple had worked through the issues that arose in their dispute.

Current sentencing practice (s 33(1)(za) of the Sentencing Act)

41․I have taken into account a number of cases by way of comparison to ensure consistency in sentencing practice, accepting that the objective in doing so is not to bind the sentencing court to achieve numerical equivalence with similar sentences imposed in the same jurisdiction: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48].

42․The parties discussed a number of cases by way of providing broad assistance of comparable sentences during the hearing.  The case of most assistance in ensuring consistency is DPP v Howe [2024] ACTSC 178 (Howe).

43․Howe involved a number of offences, among them a rolled-up offence of aggravated common assault.  The offender had grabbed the victim (who was 34 weeks pregnant at the time) by the shoulders on two occasions, pushing her up against a door and a wall. The first time the victim’s feet were lifted off the ground.  The offending was accompanied by verbal threats and the presence of a child on the second occasion.  The offender was sentenced to a fully suspended term of imprisonment for seven months (which had been discounted by 12%) and 50 hours of community service.  The conduct there was more serious than that under consideration here. The subjective circumstances referred to above, including the remorse, sworn evidence and the circumstances of the plea of guilty are also significantly more favourable in the present case.

44․During the hearing, the case of Ledbrook-Miller was also considered. The conduct there involved assault occasioning actual bodily harm, which was a much more serious offence with a maximum penalty of 7 years, involving conduct where two young children were asleep in another room.  There were different subjective features involved (see Ledbrook-Miller at [38] where the presence of Bugmy factors as well as the application of Verdins principles was discussed). It was thus not put forward by way of direct comparison, but more as an example of a sentence involving family violence where the Court considered it appropriate to wholly suspend the sentence of 9 months’ imprisonment that was imposed following a discount for a guilty plea of 25%.  Again though, the offender there had already served a period of full-time custody and the offender had sole custody of young children.  It was acknowledged that any further period of full-time imprisonment would have a significant adverse effect on the offender’s children: Ledbrook-Miller at [43].

Is the s 10 threshold crossed?

45․The consideration of the “threshold” is a shorthand way of referring to s 10 of the Sentencing Act, which relevantly provides that a court may sentence an offender to imprisonment, “for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.”

46․I acknowledge this is a borderline case.

47․The cogent submissions of the offender’s counsel drew attention to:

(a)The offender’s age and lack of relevant criminal history;

(b)The offender’s otherwise good character and strong subjective case;

(c)The offender’s plea of guilty (which ought to attract a large if not full discount);

(d)The offender’s remorse and insight into his offending; and

(e)The offender’s low risk of reoffending and good prospects of rehabilitation.

48․The offender submitted that it was appropriate to deal with the offender by way of a conviction and a good behaviour order, with supervision and/or community service components.  As discussed at the hearing, despite the strong subjective case, because of the seriousness of the conduct here, particularly the rolled-up conduct and the fact that there was a knife involved in the assault, I do think that no sentence other than one of imprisonment is justified to reflect the objective seriousness and gravity of this family violence offence.

Disposition

49․I consider a sentence of imprisonment for a term of 6 months – following application of the discount for the guilty plea – is appropriate to give effect to punishment (that is proportionate to the objective seriousness), denunciation and general deterrence objectives.  I consider specific deterrence has very much been achieved through the 2 days that the offender has already served in custody which will be taken into account by way of backdating, as well as the arrest and the sentencing proceeding itself. 

50․I note that the offender was assessed as suitable for both an intensive correction order and also for a community service work condition if a good behaviour order was imposed. Because I have decided that the s 10 threshold is crossed, further community service is not necessary as additional punishment in this case. While an intensive correction order may have been appropriate, given the lack of any strong corrective measures required here, I have decided to deal with the offender in a different way.

51․Being ever mindful of recognising this victim’s circumstances, the very strong subjective case persuades me to give weight to the reformative nature provided by a suspended sentence as being the appropriate course here.

52․I note the recommendation of the author of the intensive correction assessment report that the offender would benefit from undertaking an assessment for a domestic violence program, either through the EQUIPS Domestic Family Violence Program or Everyman Australia’s Violence Prevention Program. Given that the offender has already engaged in counselling in part targeting this issue at his own expense, I will not make any specific recommendation, so as to give those administering the good behaviour order maximum flexibility as to what may be appropriate for this offender (noting that one of the core conditions is to comply with any direction given to the offender: s 86(1)(d) of the Crimes (Sentence Administration) Act 2005 (ACT)).

Orders

53․The orders of the Court are:

(1)For the offence of aggravated common assault contrary to s 26 Crimes Act1900 (ACT) (CC2023/3826) the offender is convicted and sentenced to a term of imprisonment for 6 months (reduced from 8 months to take account of the offender’s guilty plea), to be backdated to 22 September 2024 and to conclude on 21 March 2025.

(2)Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the sentence is to be suspended from 24 September 2024, upon the offender entering into a good behaviour order in accordance with order 3, with core conditions only imposed pursuant to s 86 of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act).

(3)Pursuant to s 13 of the Sentencing Act, a good behaviour order of 12 months (24 September 2024 to 23 September 2025) is made upon the offender signing or giving an undertaking to comply with the offender’s good behaviour obligations under the CSA Act.

I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam

Associate:

Date: