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DPP v Chen

DPP v Chen

Case [2023] ACTSC 154 23 June 2023

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Chen
Citation:	[2023] ACTSC 154
Hearing Date:	19 June 2023
DecisionDate:	23 June 2023
Before:	McWilliam J
Decision:	(1) Pursuant to s 24 of the Crimes (Restorative Justice Act) 2004 (ACT), the offender is referred for participation in the restorative justice process. (2) For the offence of threatening to inflict grievous bodily harm contrary to s 31 of the Crimes Act 1900 (ACT) (CAN 21/2023), without convicting the offender of the offence an order is made under s 17 of the Crimes (Sentencing) Act (ACT) requiring the offender to sign an undertaking to comply with the good behaviour obligations under s 86(1) of the Crimes (Sentence Administration) Act 2005 (ACT) with supervision only for the period deemed necessary by ACT Corrective Services for a period of 18 months, to commence on 23 June 2023.
Catchwords:	CRIMINAL LAW – Judgment and Punishment – Sentence – threat to inflict grievous bodily harm – whether non-conviction order should be made
Legislation Cited:	Crimes Act 1900 (ACT) s 31 Crimes (Restorative Justice) Act 2004 (ACT) ss 6, 14, 19, 24, 25, 46 Crimes (Sentencing) Act 2005 (ACT) ss 7, 17, 33, 35 Crimes (Sentence Administration) Act 2005 (ACT) s 86 Crimes (Sentencing Procedure) Act 1999 (NSW) s 9
Cases Cited:	Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 Mammoliti v Callaghan [2022] ACTSC 259 Markarian v R [2005] HCA 25; 228 CLR 357 McLeod v The Queen [2018] ACTCA 59 Mearns v Neills [2016] ACTSC 36 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Munda v Western Australia [2013] HCA 38; 249 CLR 600 QU v Cattanach [2018] ACTSC 163 R v Cajina [2021] ACTSC 353 R v CV [2013] ACTCA 22 R v FI [2017] ACTSC 190 R v Forrest [2016] ACTSC 321 R v Forrest (No 2) [2017] ACTSC 83 R v Hudson [2019] ACTSC 110 R v Kilic [2016] HCA 48; 259 CLR 256 R v Mauger [2012] NSWCCA 51 R v McHenry [2020] ACTSC 254 R v Saulala [2016] ACTSC 48 Thorn v Laidlaw[2005] ACTCA 49 Veen v The Queen (No 2) (1988) 164 CLR 465 Wells v Mount [2020] ACTSC 333
Parties:	Director of Public Prosecutions Bin Chen ( Offender)
Representation:	Counsel M Dyason ( DPP) M Thangaraj SC, K Lee ( Offender)
Solicitors ACT Director of Public Prosecutions Kamy Saeedi Law ( Offender)
File Numbers:	SCC 102 of 2022

McWILLIAM J:

Mr Bin Chen has pleaded guilty to one charge of threatening to inflict grievous bodily harm contrary to s 31 of the Crimes Act 1900 (ACT) (CAN 21/2023). The maximum penalty for this offence is five years’ imprisonment.

Facts of the offending

The facts are agreed and summarised as follows.

The offender founded a construction supply company in Australia in May 2019. The company provides light steel framing for construction projects. At that time, he employed the victim, Mr Siqi Liu. Within the company, Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Chen

Details

AGLC: Director of Public Prosecutions v Chen [2023] ACTSC 154
Case: [2023] ACTSC 154
Decision Date: 23 June 2023

CaseChat Overview and Summary

The case before the court involved the Director of Public Prosecutions against Chen. The dispute was about the appropriate sentence to be imposed on Chen for threatening to inflict grievous bodily harm. The case was heard in the Magistrates Court of the Australian Capital Territory. The central legal issue was whether a non-conviction order should be made in lieu of a conviction, and if so, what form that order should take.

The court had to consider the nature and seriousness of the offence, the circumstances surrounding the incident, and the principles of restorative justice and sentencing. The court was also required to determine whether a non-conviction order would be appropriate, taking into account the interests of justice and the need for rehabilitation. The court examined the relevant legislative provisions, including sections 24 and 17 of the Crimes (Restorative Justice Act) 2004 (ACT) and the Crimes (Sentencing) Act (ACT), as well as the good behaviour obligations under section 86(1) of the Crimes (Sentence Administration) Act 2005 (ACT).

The court decided that a non-conviction order was appropriate in this case. It referred Chen for participation in the restorative justice process under section 24 of the Crimes (Restorative Justice Act) 2004 (ACT). Additionally, without convicting Chen of the offence, the court made an order under section 17 of the Crimes (Sentencing) Act (ACT) requiring Chen to sign an undertaking to comply with the good behaviour obligations under section 86(1) of the Crimes (Sentence Administration) Act 2005 (ACT). The supervision period was to be determined by ACT Corrective Services and set at 18 months, commencing on 23 June 2023.

Orders

Orders of the court

(1) Pursuant to s 24 of the Crimes (Restorative Justice Act) 2004 (ACT), the offender is referred for participation in the restorative justice process.

(2) For the offence of threatening to inflict grievous bodily harm contrary to s 31 of the Crimes Act 1900 (ACT) (CAN 21/2023), without convicting the offender of the offence an order is made under s 17 of the Crimes (Sentencing) Act (ACT) requiring the offender to sign an undertaking to comply with the good behaviour obligations under s 86(1) of the Crimes (Sentence Administration) Act 2005 (ACT) with supervision only for the period deemed necessary by ACT Corrective Services for a period of 18 months, to commence on 23 June 2023.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Director of Public Prosecutions v Chen [2023] ACTSC 154

Most Recent Citation

Fihelly v Bluett [2023] ACTSC 393

Cases Citing This Decision

Police v Margaret Smith (a pseudonym) [2025] ACTMC 7
Citation 1

…22] VCC 2309 Veen v The Queen (No 2) [1988] 164 CLR 465 R v Low [2022] ACTCA 59 DPP v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP v Chen [2023] ACTSC 154 MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 Cotter v Corvisy [2008] ACTSC 64 R v Carpenter [2022] ACTSC 6 DPP…
Armstrong v Saddler [2024] ACTSC 263
Citation 2

…2 Bennett v Daley [2021] ACTSC 159; 291 A Crim R 495 Buxton v R [2017] NSWCCA 169 Currie v R [2013] NSWCCA 267 Director of Public Prosecutions v Chen [2023] ACTSC 154 GW v R [2015] ACTCA 15; 306 FLR 104 Greenwood v Barlee [2018] ACTSC 46 House v The King (1936) 55 CLR 499 KQE v Director of Public Prosecutions [2024…
Director of Public Prosecutions v Daniel (a pseudonym) [2024] ACTSC 128
Citation 3 (Para 11)

…where the offence charged is serious and carries a heavy maximum penalty: see similarly Cobiac v Liddy [1996] HCA 26; 119 CLR 257 at 268; DPP v Chen [2023] ACTSC 154 at [66] – [67] and the cases cited therein.…
Hua v Qiao [2024] ACTSC 121
Citation 4

…ector of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Director of Public Prosecutions v Padreny [2024] ACTCA 4 DPP v Chen [2023] ACTSC 154 DPP v Murphy (No 2) [2023] ACTSC 227 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Harlovich v Sebbens [2023] ACTSCFC 3; 20 ACTLR 2…
Police v Coe [2024] ACTMC 6
Citation 5

…Bennett v Daley [2021] ACTSC 15 DPP v Chen [2023] ACTSC 154 DS v R; DS v M [2022] NSWCCA 156; 109 NSWLR 82 Kinnane v Beattie [2022] ACTSC 265 Love v The Commonwealth [2020] HCA 3; 270 CLR 152 Mammoliti v Callagan [2021] ACTSC 259 Masciantonio v R [1995] HCA 67; (1995) 183 CLR 58 Murray v Tulikaki [2022] ACTMC 12 Ne…
Fihelly v Bluett [2023] ACTSC 393
Citation 6

…Balthazaar v The Queen [2012] ACTCA 26 Burnett v Gowing [2003] ACTSC 89 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 DPP v Chen [2023] ACTSC 154 Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 Fox v Percy [2003] HCA 22; 214 CLR 118 Greenwood v Barlee [2018] ACTSC 46 Hann v Director of Public Prosecut…

See all citing cases →

Cases Cited

Mammoliti v Callaghan [2022] ACTSC 259
Citation 1 (Para 1)

…ld never exceed the minimum that is necessary to accomplish relevant sentencing objectives. I adhere to the view I expressed in Mammoliti v Callaghan [2022] ACTSC 259, where I observed at [38] that the same must be true of any sentence to be imposed by the Court, regardless of whether it includes a term of imprison…
R v Cajina [2021] ACTSC 353
Citation 2 (Para 1)

…For the present offence, the parties helpfully pointed to R v Cajina [2021] ACTSC 353 where Refshauge AJ outlined the following features that may aggravate the offence of threatening to inflict grievous bodily harm at [34]:…
R v Forrest (No 2) [2021] ACTSC 259
Citation 3 (Para 1)

…In Mammoliti v Callaghan [2021] ACTSC 259 I said the following at [31]-[32]:…
Bennett v Daley [2021] ACTSC 159
Citation 4

…ces” to be demonstrated before a court is “persuaded to deviate from the ordinary consequence of criminal offending”: Bennett v Daley [2021] ACTSC 159; 291 A Crim R 495 at [49] per Burns J, who went on to state: The section is not a “first offenders” provision, so that a lack of prior convictions would not, of itse…
Hudson v The Queen [2020] ACTCA 46
Citation 5 (Para 36)

…CTSC 333 at [27]), or where the threat is to inflict the harm with a firearm and where the threat is made in the victim’s home ( Hudson v The Queen [2020] ACTCA 46 at [36]). Clearly, the actual presence of a weapon is an aggravating feature, as is premeditation or planning.…
R v McHenry [2020] ACTSC 254
Citation 6 (Para 1)

…The prosecution provided four cases involving the same offence. These were R v Cajina [2021] ACTSC 353, R v McHenry [2020] ACTSC 254, R v Hudson [2019] ACTSC 110 and R v Saulala [2016] ACTSC 48. The parties submitted, and I accept, that all involve much more serious offending and none are particularly helpful in li…
Wells v Mount [2020] ACTSC 333
Citation 7 (Para 1)

…In Wells v Mount [2020] ACTSC 333 Loukas-Karlsson J was dealing with whether to make a non-conviction order for an offence of stalking. Her Honour referred at [98]-[99] to the importance of “individualised justice” in stating that “the Courts must play their part in denouncing [the] conduct” that constituted the of…
R v Hudson [2019] ACTSC 110
Citation 8 (Para 1)

…The prosecution provided four cases involving the same offence. These were R v Cajina [2021] ACTSC 353, R v McHenry [2020] ACTSC 254, R v Hudson [2019] ACTSC 110 and R v Saulala [2016] ACTSC 48. The parties submitted, and I accept, that all involve much more serious offending and none are particularly helpful in li…
McLeod v The Queen [2018] ACTCA 59
Citation 9 (Para 1)

…offending are considered separately, for example, as part of the context of factors listed in s 33 of the Sentencing Act : see McLeod v The Queen [2018] ACTCA 59 at [12].…
Qu v Cattanach [2018] ACTSC 163
Citation 10 (Para 1)

…In QU v Cattanach [2018] ACTSC 163, Burns J similarly confirmed at [4] that there was no requirement for a Court to find that an offence was trivial before exercising the discretion under s 17 of the Sentencing Act .…
R v FI [2017] ACTSC 190
Citation 11 (Para 1)

…Further, as Mossop J stated in R v FI [2017] ACTSC 190 ( R v FI ) at [28], s 17 does not require the offence to be a trivial one and is not confined to cases in which there are extenuating circumstances. Mossop J was there dealing with an offender who pleaded guilty to one count of sexual intercourse with a young p…
R v Forrest (No 2) [2017] ACTSC 83
Citation 12 (Para 1)

…tive justice and the participation of an offender in restorative justice is a relevant consideration independently of statute: see R v Forrest (No 2) [2017] ACTSC 83 at [154] and the cases there-cited.…
R v Kilic [2016] HCA 48
Citation 13 (Para 1)

…facts of the particular offence and offender lie in the “spectrum” from the least serious instances of the offence to the most serious: R v Kilic [2016] HCA 48; 259 CLR 256 at [19].…
R v Forrest [2016] ACTSC 321
Citation 14 (Para 1)

…I note that the mere fact of participation in the restorative justice process may or may not, of itself, be demonstrative of remorse: see R v Forrest [2016] ACTSC 321 at [63]. However, s 33(1)(y) of the Sentencing Act requires the Court to take into account the acceptance of responsibility of an offender to take pa…
Mearns v Neill [2016] ACTSC 36
Citation 15 (Para 1)

…Also consistent with what has been stated by Mossop J in R v FI is Mearns v Neills [2016] ACTSC 36, where Penfold J was dealing with an appeal on a sentence for assault and an act of indecency. The issue was whether the entering of a conviction was manifestly excessive in the case of an older offender with good ch…
R v Saulala [2016] ACTSC 48
Citation 16 (Para 1)

…r cases involving the same offence. These were R v Cajina [2021] ACTSC 353, R v McHenry [2020] ACTSC 254, R v Hudson [2019] ACTSC 110 and R v Saulala [2016] ACTSC 48. The parties submitted, and I accept, that all involve much more serious offending and none are particularly helpful in light of the objective and su…
Kelly v Ashby [2015] ACTSC 346
Citation 17 (Para 1)

…encing Act ) was explained in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-8 and repeated in this jurisdiction by Refshauge J in Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 at [38]. Without setting out the well-known passage, an offender’s criminal history might be relevant to assessing “whether the instant off…
R v Catanzariti [2014] ACTSC 333
Citation 18 (Para 27)

…, such as when standing directly in front of or over the victim, where the threat can easily be actually carried out then and there ( R v Catanzariti [2014] ACTSC 333 at [27]), or where the threat is to inflict the harm with a firearm and where the threat is made in the victim’s home ( Hudson v The Queen [2020] ACT…
Proud v Sladic [2014] ACTCA 26
Citation 19 (Para 42)

…t: Balthazaar v The Queen [2012] ACTCA 26 at [53]. The absence of a conviction has been described as an “exceptional outcome”: Proud v Sladic [2014] ACTCA 26; 67 MVR 485 at [42], citing Stark v Plant [2010] WASCA 74 at [18]. 32.All of those submissions must be accepted. However, an exceptional outcome does not req…
Munda v Western Australia [2013] HCA 38
Citation 20 (Para 1)

…The above sentencing objectives do not all point in one direction (see Munda v Western Australia [2013] HCA 38; 249 CLR 600 at [58] and the case there-cited). There is a tension that the Court must balance. On the one hand, the purpose of the sentence is to denounce the conduct, punish the individual offender an…
R v CV [2013] ACTCA 22
Citation 21 (Para 1)

…That paragraph was also applied in R v CV [2013] ACTCA 22 at [59].…
Balthazaar v The Queen [2012] ACTCA 26
Citation 22 (Para 53)

…punishment: Lukatela v Apostoloff [2010] ACTSC 74 at [29]. A conviction is the ordinary consequence of a finding of guilt: Balthazaar v The Queen [2012] ACTCA 26 at [53]. The absence of a conviction has been described as an “exceptional outcome”: Proud v Sladic [2014] ACTCA 26; 67 MVR 485 at [42], citing Stark v P…
R v Mauger [2012] NSWCCA 51
Citation 23 (Para 1)

…The offender’s legal representatives drew the Court’s attention to the decision of R v Mauger [2012] NSWCCA 51 ( Mauger ), where the NSW Court of Criminal Appeal made some observations about a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which is a broadly equivalent sentence t…
Muldrock v The Queen [2011] HCA 39
Citation 24 (Para 1)

…thout regard to matters personal to the offender. It is to be determined wholly by reference to the nature of the offending: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. The subjective features (being the aspects of the offending personal to the offender) and the after-effects of offending are consid…
Lukatela v Apostoloff [2010] ACTSC 74
Citation 25 (Para 29)

…a conviction is a formal mark of society’s disapproval of the wrongdoing and also forms part of the offender’s punishment: Lukatela v Apostoloff [2010] ACTSC 74 at [29]. A conviction is the ordinary consequence of a finding of guilt: Balthazaar v The Queen [2012] ACTCA 26 at [53]. The absence of a conviction has…
Stark v Plant [2010] WASCA 74
Citation 26 (Para 42)

…ence of a conviction has been described as an “exceptional outcome”: Proud v Sladic [2014] ACTCA 26; 67 MVR 485 at [42], citing Stark v Plant [2010] WASCA 74 at [18]. 32.All of those submissions must be accepted. However, an exceptional outcome does not require exceptional circumstances before a non-conviction ord…
Thorn v Laidlaw [2005] ACTCA 49
Citation 27 (Para 1)

…It is also important to keep in mind what was said in Thorn v Laidlaw [2005] ACTCA 49 at [30], in that a sentence of imprisonment should never exceed the minimum that is necessary to accomplish relevant sentencing objectives. I adhere to the view I expressed in Mammoliti v Callaghan [2022] ACTSC 259, where I obser…
Markarian v The Queen [2005] HCA 25
Citation 28 (Para 1)

…The maximum penalties provide yardsticks against which to assess the objective seriousness of the offences before the court: Markarian v R [2005] HCA 25; 228 CLR 357 at [31], which is why the 5 years’ imprisonment penalty was included at the commencement of these reasons. The offender accepted that the offence o…
Veen v The Queen (No 2) [1988] HCA 14
Citation 29 (Para 1)

…he purpose of considering an offender’s criminal record (as required by s 33(1)(m) of the Sentencing Act ) was explained in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-8 and repeated in this jurisdiction by Refshauge J in Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 at [38]. Without setting out the well-known pas…
Walden v Hensler [1987] HCA 54
Citation 30

…us must be on the particular conduct of the offender and the circumstances of the offending rather than the nature of the offence: Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 577.…

Legislation Cited

Crimes (Restorative Justice) Act 2004 (ACT) 14, 19, 24, 25, 46, 6
7 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT) 17, 33, 35, 7
5 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT) 86
2 mentions
Crimes (Sentencing Procedure) Act 1999 (NSW) 9
2 mentions (from Para 1)
Crimes Act 1900 (ACT) 31
2 mentions (from Para 1)