R v Chen

[2016] NSWDC 405

District Court

New South Wales

Medium Neutral Citation:	R v Chen [2016] NSWDC 405
Hearing dates:	23 September 2016; 14 October 2016; 11 November 2016; 17 November 2016
Date of orders:	17 November 2016
Decision date:	17 November 2016
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Imprisonment for 4 years and 6 months, with NPP of 2 years and 6 months
Catchwords:	CRIME – SENTENCE – Wounding with intent to cause grievous bodily harm – Offender 58 years old, victim about 44 years old – Offender and victim had an intimate relationship, but did not live together – Victim was providing sexual benefits to offender who was seeking to assist her financially – After an oral argument, victim slapped offender’s face – Offender grossly overreacted and struck victim on the head numerous times with a heavy wooden piece of timber causing extensive facial injuries – Victim makes a relatively good recovery – Offender of prior good character – Whether crime pre-meditated – Provocation considered
Legislation Cited:	Crimes Act 1900
Cases Cited:	R v Collingburn (1985) 18 A Crim R 294 R v Kinmond (1982) 5 A Crim R 413 (WACCA) R v Morabito (1992) 62 A Crim R 82 R v Shrestha (1991) 173 CLR 48 R v Tsui (1985) 1 NSWLR 308 R v Watt (NSWCCA, 2 April, 1997 unreported)
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) (Crown) Suoqun Chen (Offender)
Representation:	Counsel: Ms S Stuart (Crown) Mr D Roff (Offender)   Solicitors: Solicitor for the Director of Public Prosecutions (NSW) (Crown) Benjamin & Leonardo Criminal Defence Lawyers (Offender)
File Number(s):	2015/114649
Publication restriction:	No

Judgment

1. HIS HONOUR: Suoqun Chen stands for sentence as a consequence of pleading to a charge that on 17 April 2005, at Prince Alfred Park in Surry Hills in this State, he did wound Hong Yan Yuan, with intent to cause grievous bodily harm to her.

2. The Crown concedes that the offender pleaded guilty at an early time in the curial process. The records at the Local Court tell me that on 18 August 2015, that Court was advised that the offender was negotiating and that it was anticipated that shortly thereafter, there might be a plea of guilty. In fact, the offender pleaded guilty on 22 September 2015 and was then committed for sentence in this Court. I accept that the offender is entitled to a discount of 25% of the proper sentence to be passed upon him because of the utilitarian value of that plea and because of the contrition and remorse which it shows.

3. This is the third day on which the sentencing proceedings have been before me. There has been a delay in completion of the sentencing hearing because of a contest between the parties on two issues whether the crime committed by the offender was premeditated and whether there had been any provocation. The determination of those issues, has been impeded by language difficulties and the necessity to use interpreters, and misunderstandings frequently occurring between the witness, the interpreter and those asking questions.

Relationship of offender and victim

4. The first thing to consider is the nature of the relationship between the offender and the victim, Ms Yuan. At the time of the offence, Ms Yuan would have been 44. She might have been a year younger. I do not know her date of birth. I do know that when she gave evidence before me, commencing on 23 September 2016, she was then 45 years old. As I have mentioned, the offence occurred on 17 April 2015, more than one year prior to 23 September 2016. Ms Yuan is a permanent resident of Australia. She has three sons. Her eldest son, at the time she gave evidence, was aged 22. Her second son was aged 10 and a half years, and her youngest son was 3 and a half years old. When Ms Yuan was absent from her family home, her eldest son would look after the younger children. It appears that Ms Yuan had been unemployed for a large number of years. She has, or had, a gambling addiction. She was unable to serve her gambling addiction with her own income which was derived from social security benefits. She turned to borrowing money from the offender.

5. According to the offender, they had met about a year prior to the offence. Initially, the offender lent large amounts of money to Ms Yuan in the expectation that he would be repaid. He was soon disabused of that expectation. A relationship developed between the offender and Ms Yuan which Ms Yuan described as a “sexual relationship”. In consideration of the offender giving her money, she had sexual relations with the offender. Ms Yuan’s evidence was given after she had suffered a very serious assault upon her at the hands of the offender. One can understand that she would have some antipathy towards him by the time she came to give evidence. The thrust of her evidence was that the relationship was essentially a mercenary one. She provided sexual favours to the offender in consideration of his giving her money for her to spend, either directly or on her gambling habit or indirectly on the gambling habit by using it to defray the normal outgoings of life which, in her case, were defrayed by the social security benefits.

6. The offender appears to have enjoyed the sexual favours which the victim provided to him. He appears at times to have regarded her as his “girlfriend”, although the victim made it clear she did not regard herself as being his “girlfriend”, and she herself knew another man whom she regarded as her boyfriend. Her youngest child was begotten by that boyfriend. At the time of the offence now in question the offender was 58 years old. There was therefore a disparity of ages of some 14 years between the offender and the victim. One could perceive, in those circumstances, that having a relationship with a lady who was 14 years younger than him may have seemed a satisfactory relationship to the offender. However, it is clear that once the offender realised that he would not have monies repaid to him, that he was becoming more and more reluctant to provide money to the victim.

7. There are in evidence numerous text messages exchanged by the pair. For example, on 31 March 2015 the victim sent a message to the offender, telling him that her landlord was threatening her with eviction. The offender told the victim that he would try his best to obtain some money to give to her, but he also suggested that she ask her mother back in China for money, but the victim said that that would not work. Further text messages were then exchanged on that day, but on 1 April 2015 at 1.38am the victim sent this text message to the offender, “You take care of yourself. Don’t ever think you could insult me just because you have money! Be aware of retribution!” A certain reply was sent by the offender and the victim who then asked the offender to try to obtain for her that day $520. The thing to note is the threat of retribution.

8. On 11 April 2015, the victim sent this message to the offender:

“I have been thinking a lot recently. I now have to sell my body to get money, it is lamentable! You helped me a lot in money. But I cannot take you suspicious and selfish any more. So I have decided to not see you any more. That's it. If one day I have money, I will let you know. However, I hope you don’t bad mouth about me in my back. You should always remember: A loose tongue may cause lots of trouble!”

That resolution not to see the offender any more lasted no more than two days. On 13 April 2015 the victim sent a text message to the offender asking him for $200. She then went on to say this:

“I go to see you. The money I owe you, we can talk about it later. If you don’t answer me, let’s forget about. I won’t ask for the second time.”

The offender replied with this message:

“I am not home tonight. I am sleep in the construction site, working hard for money, sorry, (let’s make it) next time.”

9. On the same evening some 16 minutes later the victim sent a message to the offender telling him that she needed $200 by the following morning and that she wanted to obtain the money from him that night. There was no immediate reply by the offender. That caused the victim to send another message asking the offender whether he was not replying on purpose. He replied to that with the simple answer, “No”. There were further communications on the same evening about the lending or giving of $200. The victim said she needed the money urgently because she needed to take her youngest child to either a hospital or a doctor. There was also reference to a speech problem. The text messages became more querulous and by 8.10pm on the evening of 13 April 2015 the offender, who appears to have been at Richmond or thereabouts, was querying the expressed need of the victim to go to Richmond to obtain $200 in cash from him. There was then a request made that the $200 be transferred to the victim’s account on the following morning.

10. On 14 April 2015 after numerous text messages the victim sent this message to the offender:

“You won’t give me money, if you do not have (sex) with me. Fuck! Who else can I ask for money in this early morning? Are you sure that you can’t help me? I know where you are; soon you’ll be asking other people for help. Hurry up, reply me.”

Text messages continued on 15 April about the lending of money namely this $200 that was required urgently by the victim. Again at 1.44pm on 15 April or thereabouts, as far as I can work out from the photograph 56 in exhibit 5, the victim was still seeking $200. Eventually the offender sent a text message to the victim on 16 April 2015 saying:

“I called my nephew this morning, he agreed to lend me $1,000 tonight after he received his payment.”

By “payment” I assume he meant either wages or salary owed. In reply on that day the victim sent a message to the offender. It is this, “Good. How come he gets paid on Thursday?” To that the offender replied:

“He gets paid every three weeks. His boss pays them whenever he receives money. The boss owes my nephew five weeks payment. I called my nephew last night asking for money, he only had $160.”

Later the same day the offender sent a text message to the victim saying that he would obtain money “in a few days”. To that the victim replied:

“Can you give me $300 tonight? I need to pay my rent; a taxi driver paid me $300. I already gave to the landlord. Can you be more direct? Yes or no. You can answer me directly. Why did you think that much and say that much which is unnecessary? You are a really horrid person! You sent a bunch of messages and then disappeared. What’s going on?”

Another message was sent around 6pm asking the offender at what time could he obtain “the money”. The offender replied:

“To his home to get the money. He just called me saying his boss asked him to finish the last bit of the job, you come to my house about 7.30pm or 8pm. Don’t knock the door, just go straight in.”

Those last messages clearly preceded the events in question.

11. The text message that I quoted that was sent on 11 April, contained another implicit threat but it may equally be viewed as merely another attempt to cajole the offender into giving the victim money.

12. In one of the many text messages of 13 April the offender asked the victim to think carefully about the number of times on which he had helped her. His text message contains this matter:

“You can report me (as an illegal immigrant) or kill me. No worries. But I have never harmed you, even a little bit.”

For the offender to send such a message one must conclude that there had been raised by the victim a threat to report him to the Australian Immigration Authorities as an illegal immigrant. That had been made almost half a week before the crime with which I am concerned and clearly shows that the victim had raised a threat in her attempts to obtain money from the offender, a threat of reporting him to the Immigration Authorities. However for all I know that was as idle a threat as the threat not to speak to him again until she came into her own source of income, a threat which didn’t persist for more than two days. Equally the threat of reporting the offender to Immigration Authorities would have the inevitable consequence of permanently removing the offender from Australia and therefore permanently removing him as a potential source of income for the victim. The threat as I said could well have been idle.

13. Perhaps the best description of what occurred here is the written submission by the Crown:

“It would appear that the nature of the relationship between the victim and the offender, is one where this offender was in ‘love’ with the victim and she with his wallet.”

The exact nature of the offender’s relationship with the victim did not appear to me from the evidence I have heard to be a strongly emotional one, but rather one that was physically and socially congenial to the offender, and one that he enjoyed, but it does not appear to have been the source of any great emotional tie.

The offence

14. In the late afternoon or early evening of 16 April 2015 the victim went to the offender’s home, which is not adequately described in the evidence by the offender. I note that according to a history given by the offender to Mr Sam Borenstein, a clinical psychologist, that the offender was living in a rented room in a boarding house at Concord. When the victim went there she had sexual intercourse with the offender and the pair then left the offender’s accommodation and caught a train to Redfern Station. They alighted at Redfern Station and walked to Prince Alfred Park and took seats in the park at its southern end, close to Cleveland Street. That is seen in a photograph which is part of exhibit 1 and has on it Chinese writing, presumably made by the accused and/or his interpreter when the accused was interviewed by Detective Wang on 25 April 2015.

15. The offender took or wore a backpack on this journey. That backpack can be clearly seen in a photograph numbered 7 and contained in exhibit 1, taken from CCTV on a train carriage showing the offender and the victim on their way to Redfern Railway Station, although the document says that it was made at Central Railway Station. In that backpack was a bottle of red wine and a piece of timber. That piece of timber was produced to the Court and was marked for identification 4. I described it on p 15 of the transcript of 14 October 2016 in this fashion:

“It’s a piece of hardwood of 30 millimetres or 3 centimetres wide and 3 centimetres long, it’s a square, and the total piece of length of the hardwood is about 32 centimetres.”

The hardwood is particularly dense. The item is particularly heavy. I am today sitting in historic Court 3 at Darlinghurst where I am surrounded by much timber. The piece of timber that is MFI 4, if used to strike any of the timber in this courtroom, would leave a large dent or mark in the timbers struck because it is so hard and so dense, and the timber here being compared to it relatively soft. Wielded with any force, that piece of timber had the potential to be lethal, that is, to cause a deadly injury.

16. The offender says that he had obtained this piece of timber from a building site and he was going to give it to his nephew - who is in fact his second cousin’s son, but is always referred to as his nephew - so that the nephew could make from it a handle for a hammer, although originally the piece of timber was said to be for some other implement. The offender explained that to obtain a comparable piece of timber commercially, would require one to go to Bunnings and spend $6. The offender said he wrapped it in newspaper in order to stop there being any splinters. A dispute in the evidence before me is whether the victim had anything to do with the wrapping of the piece of timber. She says that she did not. The offender said to some, that he wrapped it. To others that she wrapped it and eventually in evidence, that they both wrapped it, he applying the newspaper and the victim securing the newspaper with sticky tape, or as the offender initially described it, “plastic”. On the remains of the newspaper on MFI 4, I could not see any sign of sticky tape having been used, but learned counsel for the offender is quite correct in pointing that when one looks at exhibit 6, the item is so well wrapped, that some form of tape or fastening must have been used. In my view, little turns on whether the victim helped wrap or did not help wrap the piece of timber, MFI 4. It is common ground that the offender carried it in his backpack.

17. The Crown has submitted that I would find beyond a reasonable doubt that the offender brought this piece of timber with him deliberately, in order that he could assault the victim with it when they were at Prince Alfred Park. With great respect, I could not make such a finding on the balance of probabilities, let alone beyond reasonable doubt. If the purpose of obtaining this piece of timber was to use is as a weapon to assault the victim, then why wrap it in anything? The wrapping would only lessen its value as a weapon. The next problem with the submission is that it is extremely implausible that any person intent upon causing grievous bodily harm to a victim, would take the victim and the weapon intended to be used to a public park and commit the assault there rather than in some lonely, secluded or hidden spot. If the intention was to use this piece of wood as a weapon then one could easily have made a detour in the route from Redfern Railway Station to Prince Alfred Park and gone down a lane or back alley and committed the assault there where it might not be readily observed by anybody and where there might not be anybody to come to the aid of the victim. Suffice to say I could not be satisfied beyond reasonable doubt that the Crown’s submission is accurate. It appears to me to be more plausible that the offender had the item in his backpack for the reason that he said, to give it as a present to his nephew who needed it to complete some implement which had a broken handle.

18. It is also common ground that the offender took with him a bottle of red wine from wine that was at his home at the suggestion of the victim in order that they might reward the nephew for providing money to the offender and the victim.

19. Another area of contention is the circumstances of the waiting at Prince Alfred Park. According to the victim she was becoming impatient about the long wait at Prince Alfred Park. They appear to have arrived there about 9.20pm and nothing happened until around midnight. There was a long wait involved. She kept asking the offender when his nephew would arrive and he made telephone calls to his nephew as far as she was concerned. According to the offender he had made all the arrangements at 7.30am on the morning of 16 April with his nephew and he knew that his nephew would not be arriving at the park until midnight or thereabouts. The offender admits to pretending to make calls to his nephew whilst the offender and the victim were in the park, but he admits those phone calls were pretended, bogus or fake phone calls mainly done to appease the impatience of the complainant. The offender says that he had told the victim that his nephew would not be arriving until midnight, but that is equally implausible, because, if that were known, the victim may not have waited till such a late hour or have insisted that they go elsewhere than just sitting in the park being attacked by mosquitos. Equally, if it were known by the victim that the nephew was not arriving till midnight, why would she be demanding that the offender make calls which the offender pretended to do. I am not satisfied on the probabilities that the offender told the victim that his nephew would not be arriving till midnight.

20. I accept that the victim was growing impatient and becoming querulous. Equally it appears to be common ground that a large amount of the time in the park was spent by the offender’s massaging the neck of the complainant. The complainant says that, when he was massaging her neck, suddenly and without warning she felt her head being struck by an object which was clearly the piece of timber and that she was struck from behind and that she knew little of what happened thereafter. Nevertheless the agreed facts are that the offender pulled the piece of timber from inside his backpack, that it was wrapped in newspaper and that the offender used the “rod” to deliver blows to the victim’s head. The first blow was a heavy strike to her forehead which is inconsistent with the blow being struck from behind her. Such a blow would hit the occipital region of the skull rather than the forehead. It is very difficult to see how an implement such as MFI 4, wielded by hand, could strike the forehead before any other part of the head when the person wielding the implement was standing behind the victim.

16. The remaining item of controversy is whether the victim was provoked. That is, in theory, a mitigating factor, one in favour of the offender, and therefore only needs to be found on the balance of probabilities, not beyond reasonable doubt. It seems more probable than not to me that there was an oral argument between the offender and the victim, as the offender said, that insults were exchanged and that, as the offender says, the victim slapped him on the face. I accept that there was an oral argument, that there were threats which could have been the usual threats previously made, threats that could have been idle, but whatever the nature of the argument, clearly the victim herself felt insulted and slapped the offender. The offender’s reaction was excessive, in fact grossly excessive; to use the vernacular: completely over the top. He said that he could not slap her back because he had some problem with one of his fingers. He went to his backpack, obtained the piece of wood wrapped in paper and rained repeated blows upon the victim’s head with this potentially lethal weapon.

[Sentence continued 17 November 2016]

Aftermath of the offence

22. I have discussed the facts up until the time of the offender’s attack upon the victim. The further facts are those contained in the agreed facts which I shall quote:

“Three railway workers heard the victim screaming and heard the sound of thumps. They did not see the assault. They ran towards the sound of the thumps and the screams. They saw the victim lying on the ground. They saw a man running away, carrying a backpack. They chased the offender and after running for about 25 metres he stopped and turned to them with his arms out to his sides. In his hands there was a wooden rod wrapped in newspaper and stained with blood. He dropped the rod to the ground.

The rail workers called 000. Police arrived at about 12.30am. They arrested the offender and took him to Surry Hills Police Station.

An ambulance arrived to take the victim to St Vincent’s Hospital. There, the surgical registrar, Dr Pennington, diagnosed ‘craniofacial injuries, including multiple full thickness lacerations to the frontoparietal scalp and forehead as well as a depressed left zygomatic arch [left cheekbone]’.

The doctor operated on the victim conducting a washout of the lacerations enclosing them with a combination of surgical staples and suturing. The victim was thereafter given a course of antibiotics and was monitored in hospital until her discharge on 20 April 2015.

On 27 April 2015 the victim was reviewed by a plastic surgeon, Dr Wang. The doctor noted, ‘minimally displaced, comminuted fracture of the left zygomatic arch. Trismus found by inability to open mouth wide due to pain. Normal occlusion. No maxillary, mandibular, or orbital rim tenderness. Multiple healed scars to the forehead and scalp regions.’”

23. Dr Wang performed surgery on 1 May 2015 to reduce the cheekbone fracture under general anaesthetic. He reviewed her two weeks later in the outpatients’ department. He noted that the left zygomatic prominence and facial symmetry had improved significantly. The victim has been left with permanent scarring on her forehead, which can be seen in one of the photographs contained in exhibit 1. I have watched the victim give evidence by way of closed-circuit television, and on television the scars were not obvious, but clearly they would be obvious to anyone standing close her. She complained of ongoing pain in her evidence in the area of the scarring, but according to the Crown Prosecutor it is likely that she is complaining of some form of altered sensation such as numbness or paraesthesia. The photograph of the victim contained in exhibit 1, obviously taken after the ambulance officers had attended upon her, but before she was conveyed to hospital, show frightening injuries, but it appears that the victim has been left with very few ongoing symptoms. In particular, I note that there has not been any fracture of the skull, no subdural haematoma, and no suggestion of any ongoing brain damage, or brain impairment. The assault, while causing a major injury, has, fortunately, left little continuing damage to the victim.

Provocation

24. I turn to the question of provocation raised by the defence. Provocation is available as a partial defence to the crime of murder, and if successful, will result in a verdict of manslaughter. That is a statutory provision under the Crimes Act. However, it has been held that extreme provocation also has the tendency to reduce the objective gravity of other offences. That was stated by McInerney J in Watt (NSWCCA, 2 April, 1997 unreported). That case involved wounding with intent to do grievous bodily harm, the same offence as this offender committed. Three particular matters arise from a study of the cases relating to provocation, and these three principles are:

1. where the degree of provocation (or, alternatively, the degree of loss of self-control) is great it has the tendency to reduce the objective gravity of the offence; an example of this is Morabito (1992) 62 A Crim R 82;

2. when the time between the provocation and the loss of self‑control (alternatively, of the extent of the loss of self-control) is short, this has the tendency to reduce the objective gravity of the offence. Morabito is an example of the same principle;

3. when the degree of violence or aggression displayed by the offender is excessive, this has the tendency to increase the objective gravity of the offence such has been held in Kinmond (1982) 5 A Crim R 413 (WACCA) and in Collingburn (1985) 18 A Crim R 294 (Full Cour of Supreme Court of Victoria.

25. On the findings I have made, the extent of the provocation was objectively small, the offender’s reaction to it was excessive and the authorities suggest that, rather than being a mitigating factor, it is likely to increase the objective gravity. However, I have come to the view that the provocation was oral, combined with a slap, and that caused the offender to lose self‑control. And overreact he did, violently, by attacking the victim’s head with the piece of timber that I have earlier described. I have reached the view that the provocation is cancelled by the excessive reaction of the offender’s blows.

Seriousness of the offence

26. I am required to consider the objective gravity of the offence. Parliament has prescribed a maximum penalty of 25 years imprisonment. Parliament has also fixed a standard non-parole period of seven years. I would be required to pass such a non-parole period if the offender had pleaded not guilty and were found guilty, and that the case was in the midrange of objective seriousness for offences contrary to s 33(1)(a) of the Crimes Act 1900. A maximum penalty of 25 years exceeds some, and equals many sentences passed for the crime of murder. It exceeds, by far, most of the sentences imposed for the crime of manslaughter. The reason for such a large maximum penalty is that the grievous bodily harm inflicted can vary in range enormously. The three factors relevant to assessing the objective seriousness of an offence such as this, are the degree and nature of the injuries, the degree of violence used and the intention of the offender, the mental element of the offence.

27. Grievous bodily harm is the worst extent of injury that the criminal law envisages. It is generally glossed as being a really serious injury, and it is a question for a jury. However, grievous bodily harm can include conditions such as quadriplegia, paraplegia, and brain damage, leaving the victim with a cognitive defect or other organic brain damage which can lead to things such as social disinhibition, the loss of the ability to work, and to function within normal society. Grievous bodily harm could also include the loss of both legs, or loss of a dominant arm. I have to compare the current victim’s injuries to some extent with the most extreme forms of grievous bodily harm.

28. The degree of violence I have already outlined, and the degree of violence the offender used is disquieting, to put it at least neutrally. However, here I accept that the mental element was not one of premeditation, the offence was spontaneous. The offender’s normal behaviour was overcome by insults which he perceived perhaps relating to feelings of ingratitude felt by him, and to the slap on the face used by the victim. The mental element is accordingly of no major, moral culpability.

29. Bearing those matters in mind, I believe that this crime falls below the midrange of objective seriousness, but I would not put it near the bottom of the range at all. It is below the midrange of objective seriousness, but well above the bottom of the range. It is otiose, and perhaps inappropriate to express it statistically, but it might be helpful in this case to indicate a view of a ratio of 3:10 towards a most serious offence contrary to s 33(1)(a) of the Crimes Act.

Offender’s personal circumstances

30. The personal circumstances of the offender are all extremely favourable. He was interviewed whilst in custody by Mr Sam Borenstein, a clinical psychologist. The offender was born in Guangdong province, China. He is one of five children. His father is currently 92 years old, and worked as a cobbler. His mother died when she was aged 78. The offender described his childhood as good. He completed a high school education, and did very well in his studies. There were no behavioural problems of any sort which attracted a need for discipline. The only unfavourable thing in the offender’s background is that during his formative years the economy in China was not particularly good and he was denied the opportunity to go to university.

31. He has had a number of long term relationships. The first one was one of which his family did not approve, and one of which her family did not approve. The offender came from what he describes as a “peasant family”. His girlfriend was from a “workers family”, which appears to be regarded as some form of higher class in China. He married in 1980, and has two children by that marriage. Those children are now in their 30s. The offender, as I mentioned last Friday, came to Australia in 2003. He divorced his wife in 2009. He then met another woman, but that relationship he broke off when he believed that he was being manipulated by the woman, who wanted money. The offender’s only other relationship was with the victim, and I described that relationship last Friday.

32. There is no family history of psychiatric or psychological disturbance. Since the offender has over stayed his visitor’s visa to this country by a substantial period of time, it is clear that his only source of income in Australia has been his own earnings, but he has clearly borrowed money from time to time from relatives to provide to the victim. The offender has no criminal history either in China, or in Australia. He comes before this Court as a man of prior good character.

33. Mr Borenstein confirms that the offender has no psychiatric illness, nor has he ever suffered from any psychiatric illness. Mr Borenstein expressed this view: “There is nothing in Mr Chen’s history to predict the behaviour which brings him before the Court.” That suggests that the offender’s behaviour towards the victim was out of character, and, consistently with the offender’s age and prior good character, can be seen as an extremely isolated occurrence. When he committed this offence the offender was 58 year old. In other words, for the first 57 years of his life he had not committed any crime at all, and no one would have predicted that he would commit a crime of violence such as that committed against the victim. The offender clearly is entitled to have his prior good character taken into account, as well as the discount for his early plea of guilty. Also to be taken into account are the contrition and remorse shown not only by that plea, but also by the guilt and remorse which he expressed to Mr Borenstein, and sought to express to me in his oral evidence.

Statistics

34. The Crown has provided statistics kept by the Judicial Commission, those statistics are annexed to the Crown’s submissions, which have been marked for identification 1. Those statistics indicate that for all offences contrary to s 33(1)(a) of the Crimes Act, since Parliament imposed the standard non-parole period, the median head sentence is six years imprisonment, and the median non-parole period is three years imprisonment. If one factors in one offence only, no Form 1 matters, no prior conviction, and a plea of guilty, one obtains a relatively small sample of 12 cases where imprisonment has been imposed. They show a median head sentence of five years imprisonment and a median non-parole period of two years and six months.

Consideration

35. I commence this sentencing exercise with a head sentence of six years imprisonment. I discount that by 25%, which leaves me with a head sentence of four years and six months. Applying the statutory ratio between the head sentence and the non-parole period, that would provide for a non-parole period of three years and four months. However, in this case there are clearly special circumstances. Firstly, this man went into custody at the age of 58. Unfortunately, our gaols are almost wholly filled with people in the second and third decades of their lives, young men. The age of 58 is a very senior one at which to commit this serious criminal offence. The mere fact of going into custody for the first time at the age of 58 would make imprisonment hard. Mr Borenstein pointed out, and it is clear from the way these sentencing proceedings have progressed, that the offender has no real command of the English language. The result of that is that he is unable to participate in the prison system in any appropriate courses such as the violent offender’s program, and anger management classes. He has been very well behaved in custody, has worked in the textile industry from an early time, and a chaplain at Silverwater gaol has given the offender a very positive reference. The chaplain was a Mr Steven House. I have come to the view that the appropriate non-parole period is two years and six months. The sentence will commence at the time of the offender’s arrest on 17 April 2015, meaning that he will be eligible for release to parole on 16 October 2017, and that the head sentence will expire on 16 October 2019.

36. It ought be clear from what I have earlier said, that the offender is likely to be deported from Australia when released from custody, but the authorities make it clear that that fact is irrelevant on the question of sentence, see R v Tsui (1985) 1 NSWLR 308, R v Shrestha (1991) 173 CLR 48 and numerous subsequent decisions of the Court of Criminal Appeal.

Sentence

37. Suoqun Chen, on the charge that on 17 April 2015 at Prince Alfred Park in Surry Hills in this State you did cause wounding to Ms Hong Yan Yuan with intent to cause grievous bodily harm to her, you are convicted. I sentence you to imprisonment. I set a non-parole period of two years and six months commencing on 17 April 2015 and expiring on 16 October 2017. I impose a further period of imprisonment of two years to commence upon the expiration of a non-parole period and expiring on 16 October 2019. The total sentence is therefore four years and six months, comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period.

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Decision last updated: 01 March 2017