R v Deng

[2022] NSWDC 382

District Court

New South Wales

Medium Neutral Citation:

R v Deng [2022] NSWDC 382

Hearing dates:

26 August 2022

Date of orders:

29 August 2022

Decision date:

29 August 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   The offender is convicted.

2   The appropriate term of imprisonment is 4 years that will be discounted by 25% to give effect to the plea of guilty.

3   I impose a term of imprisonment of 3 years with a non-parole period of 1 year and 9 months to date from 5 April 2021. The non-parole period will expire on 4 January 2023 and the head sentence will expire on 4 April 2024. The offender will be eligible to be released on parole on 4 January 2023.

Catchwords:

CRIME — Violent offences — Recklessly cause grievous bodily harm

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Olbrich (1999) 199 CLR 270

R v Watt (unreported 2 April 1997, NSWCCA)

R v Dickinson [2004] NSWCCA 457

R v Hampton [1999] NSWCCA 341

Category:

Sentence

Parties:

Regina
Zhongji Deng (Offender)

Representation:

Counsel:
T Hickie (Offender)

Solicitors:
Office of Director of Public Prosecutions (Crown)
P Beaumont (Offender)

File Number(s):

2021/93543

Publication restriction:

None

Judgment

1. Zhongji Deng (the offender) appears for sentence after pleading guilty in the Local Court to one count of recklessly causing grievous bodily harm contrary to s 35(2) Crimes Act 1900.

2. The maximum penalty for the offence is 10 years imprisonment and the offence carries a standard non-parole period of 4 years.

Approach to Sentencing

3. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

4. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

5. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

Facts

6. The parties presented an Agreed Statement of Facts, which is unnecessarily lengthy. I have taken the entirety of the document into account in coming to the appropriate sentence. What follows is a brief summary of the facts relevant to this offender to permit an understanding of the sentence imposed and to make it easier to have my judgment interpreted for the offender.

7. The offender was 54 years of age at the time of the offence. The victim, Tao Pang was 44 years of age. The offender and the victim met each other about four to five months before the offence through a mutual friend, Maofu Wang. They had spent time together in friendly circumstances.

8. On 4 April 2021 the victim and his son were moving house from an address in Auburn to another address in Auburn. Mr Wang, the offender and Yonggang Yu came to help. At about 3pm, the work finished and the men decided to have dinner together. The men went to a bottle shop in Burwood and purchased two cases of beer. They collected food from a restaurant in Auburn and went back to the victim’s new residence.

9. The men, with the exception of Mr Wang, drank beer over the next few hours. The victim’s son, Hesheng Pang, arrived home at about 10pm and went to his room. At this time, the men were drinking in the lounge room and had been joined by an unknown male. About 30 minutes later, he heard his father and another male arguing loudly. He could not hear what they were saying.

10. The victim and the offender began to argue after the men were sitting in the kitchen for about an hour. It is unclear from the facts what they were arguing about. At one point the offender and the victim stood up and the unknown male got between them and separated them, before pulling the offender towards the door. The offender and the unknown male left. Mr Wang followed them out and told them that they were not welcome to return.

11. At about 11.30pm, the offender tried to call Mr Wang on two occasions. When he finally spoke to Mr Wang he said that he had been trying to contact the victim. Later, the victim’s son heard the victim speaking with the offender on the telephone. Both men sounded angry. The victim indicated that he wanted to come and find the offender and the offender told him to come.

12. The victim announced that he was going out. He sounded angry and upset. The victim drove to the offender’s residence in Auburn.

13. The events that followed were captured on CCTV footage from a camera on a neighbour’s property. I have viewed the CCTV footage which was expressed to be incorporated into the facts. The footage provides a very distant view of the action and I found it difficult to make out the events described in the agreed facts. I have proceeded on the basis that the agreed facts adequately describe the relevant events.

14. At about 12.39am on 5 April 2021, the offender was standing on the front verandah of the house and waited for about five minutes until the victim arrived. The offender was holding a chef’s knife.

15. At about 12.45am the victim arrived and walked up to the offender on the verandah. The victim punched the offender and the offender punched the victim back. The offender lunged towards the victim. The offender and the victim were fighting with each other throwing punches. The offender raised his right arm in an overhead swinging motion and slashing action towards the victim on a number of occasions. They both fell on the ground at about 12.46am. The victim remained on the ground for a period with the offender over him.

16. The offender got to his feet followed by the victim. They spoke for a short period before the victim walked to the street at about 12.49am.

17. Mr Wang came to the offender’s residence to look for the victim. Mr Wang tried to call the victim without success. When he arrived, the offender was still standing out the front of the house. The offender told Mr Wang, “He was here, I gave him a few punches and he left”. Mr Wang asked where the victim went and the offender said he did not know.

18. At about 12.50am the victim called his son on WeChat. He spoke softly and sounded weak. He said, “I have got blood on my body” and did not respond when asked where he was. The victim’s son left his residence and started looking for his father. After speaking to Mr Wang on the phone at about 1.06am, Mr Wang and the victim’s son commenced searching the nearby streets for the victim.

19. A short time later, the victim’s son noticed his father’s car with the brake lights on in Happ Street, Auburn. He found his father in the driver’s seat slumped over the steering wheel. He had blood soaked through his shirt on his chest area.

20. The victim was taken by ambulance to Westmead Hospital. The victim sustained:

1. a 10-20cm wound to the central abdomen that had penetrated the peritoneum;

2. a 1cm wound to the chest;

3. two lacerations on the left upper arm requiring sutures.

21. The abdominal wound was life threatening. The victim was suffering significant blood loss on admission and was sent for an urgent laparotomy. He had a large volume of blood in the peritoneal cavity, an injury to the transverse colon and a laceration to the liver that was still bleeding and required suturing. He required multiple blood transfusions to maintain his blood pressure. His colonic wound was temporarily closed. He was taken to the Intensive Care Unit where he was intubated because his condition was unstable and he displayed delirium and agitation. On 5 April 2021, the victim had further surgery to repair the transverse colon. His recovery was complicated by further internal bleeding and soft tissue damage to his right forearm from intravenous treatments. He was treated with antibiotics and underwent ultrasound guided drainage of the internal bleeding. He will require skin grafts on his right forearm. He was discharged from hospital after 13 days as an in-patient. The victim has been left with a 30-40cm scar running down his midline from just below his nipple line to underneath his umbilicus.

22. Police executed a crime scene search warrant at the offender’s residence. The offender told the police, with the assistance of an interpreter, that he had stabbed the victim. He said they had too much to drink and had a fight. The offender told the police that he got a large fruit knife because he was scared that the victim would bring other people with him. He said he used the knife to “kind of scratch him”. He said that he did not call an ambulance for the victim because he walked out of the yard and then drove away. The offender showed the police the chef’s knife which was under his bed.

23. The offender was arrested and taken to Auburn Police Station. He participated in an electronically recorded interview and made admissions. He also provided a DNA sample.

The Offender’s Case on Sentence

24. The offender tendered a report of Anita Duffy, psychologist, dated 26 July 2022. She saw the offender on one occasion by audio-visual link, with the assistance of a Mandarin interpreter for the purpose of preparing her report.

The offender’s subjective circumstances, prospects of rehabilitation and remorse

25. The offender is presently 55 years of age.

26. He was born in rural China as the only son of four siblings. He is the third eldest. His older sisters still live in the area where they grew up and the younger sister lives in South Korea. None of them know that he is in custody.

27. The offender grew up on a small farm where his father grew wheat, corn and peanuts. The family was very poor. He helped his father on the farm outside of school and after leaving school at age 15. He also took casual labouring jobs in construction to make extra money. His family was close despite their poverty. His mother died about 20 years ago and his father died six years ago.

28. The offender married a girl from a neighbouring village about 28 years ago. They have two children, a daughter aged 27 and a son aged 17. He enjoys a close relationship with his wife.

29. The offender came to Australia on a tourist visa in August 2017 to find work and to send money home to support his family. He has applied for permanent residence in Australia and was on a bridging visa when he was arrested. He was living in a share house with other Chinese people and working for a Chinese company. He had stents inserted to treat coronary artery disease while he was in Australia.

30. Since his arrest, the offender has been housed in the MRRC and works as a sweeper. He keeps in contact with his wife by video link. He has made Mandarin-speaking friends in gaol with whom he can converse. He has not had any problems in custody.

31. As to the offences the offender told the psychologist that the victim had said to him on the night, after they had been drinking, that the offender had been raised by “an old bitch”. I note that this was different to what he said in his recorded interview, which was that the victim called him an “old cunt”. The offender told the psychologist that he estimated that he had consumed about 10 stubbies of beer. When the offender spoke on the telephone with the victim later in the night, they agreed to meet to finish the fight at the offender’s residence. The offender said that he armed himself because he was worried that the victim would bring others and that he thought that if he held a knife it would stop the victim from attacking him. The victim was younger that the offender and the victim was being a bully. He said that he did not mean to hurt the victim and that he was sorry and remorseful.

32. The psychologist assessed the level of the offender’s historic alcohol consumption as hazardous. He did not report any significant symptoms of depression, anxiety or stress. The psychologist opined that his involvement in the offences was caused by excessive alcohol consumption and that while he sought to downplay his actions he was remorseful and wanted to compensate the victim. She recommended that the offender complete a rehabilitation program in custody, relating to his alcohol consumption.

33. The offender did not give evidence in the sentence proceedings. I do not accept that the victim said to the offender that he had been raised by an old bitch, when he did not make that allegation in the course of his extensive recorded interview.

Objective Seriousness

34. The offence occurred over a relatively short period of time. The victim attended the offender’s home for the purpose of having a fight. The victim was a younger man. There was some limited planning and premeditation involved in the offender getting the knife and waiting for the victim to come to him.

35. The offence involved the use of a large knife that had the capacity to inflict serious injury or death.

36. It is hard to gauge the degree of violence used in the offence, because the offender and the victim both used violence towards each other. The offender used the knife to inflict the abdominal wound when the men were standing up and did not use the knife when the victim was on the ground and defenceless. The offender’s use of the knife was reckless.

37. The injuries sustained by the victim were very serious, with the abdominal wound being life threatening. The victim required two surgeries and other invasive procedures and had to spend close to two weeks in hospital. The victim has been left with a large scar on his midline. The incident has adversely impacted the victim’s mental health and I am satisfied that the victim’s son would have experienced considerable fear for his father’s safety in the course of searching for him and finding him in the position that he did.

38. There was some element of provocation in the events leading up to the offence. The offender perceived the need to defend himself, but what he did was not a reasonable response.

39. I have taken into account the maximum penalty for the offence and the standard non-parole period.

Deterrence

40. Offences of personal violence are viewed very seriously by the courts. Deterrence is an important consideration particularly in cases involving the use of a weapon. Any assault involving the use of the knife must be regarded as calling for a significant sentence, for the purposes of both general and specific deterrence to be given any effect: R v Watt (unreported 2 April 1997, NSWCCA). The community has a rightful expectation that the Courts will impose penalties for these offences that demonstrate the offences are serious and will attract serious punishment.

41. There is also a need for specific deterrence.

Aggravating Factors

42. The offence involved the actual use of a weapon: s 21A(2)(c) Crimes (Sentencing Procedure) Act 1999. The Court of Criminal Appeal has frequently observed that the use of a knife is a feature that specially aggravates the seriousness of an offence: R v Dickinson [2004] NSWCCA 457 at [23]. The presence of a knife in an emotionally charged situation increases the danger and the penalty which is liable to be imposed: R v Hampton [1999] NSWCCA 341 at [10].

43. The injuries caused by the offence were substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. It was common ground that the injuries sustained, established aggravating factor.

Mitigating Factors

44. The offender contended that he was provoked and that the Court should find that the mitigating factor provided for by s 21A(3)(c) Crimes (Sentencing Procedure) Act 1999 is established. For the reasons already given, I am not satisfied that the victim said the words alleged by the offender. There was some provocation on both sides by reference to the agreement to meet for a fight, but I am not satisfied to the requisite standard that this mitigating factor is established.

45. The offender did not have a record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

46. The offender was a person of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999.

47. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has strong family support. He has demonstrated that he is capable of being productive in custody.

48. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has accepted responsibility for his actions, acknowledged the harm done to the victim and expressed remorse to the psychologist. I accept that he is contrite. His plea of guilty also indicates remorse.

Other Matters

49. The offender has been in custody since 5 April 2021 and it is appropriate to back date any sentence imposed to that date.

50. I have taken into account that the pandemic has made conditions more difficult for all persons in custody.

51. I have taken into account the sentencing statistics for the offence and I note the limitations involved in that exercise.

Penalty

52. I have considered section 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate.

53. The offender is convicted.

54. I have had regard to the Victim Impact Statement prepared by the victim and read aloud by him in Court. I thank Mr Pang for the time and effort he put into being involved in the sentencing process. It is very important that the Court understands the victim’s perspective.

55. The appropriate term of imprisonment is 4 years that will be discounted by 25% to give effect to the plea of guilty.

56. I make a finding of special circumstances. The following factors justify a longer parole period. This is the offender’s first time in custody, he does not speak English, does not have family to visit him and he requires some intervention to assist with alcohol abuse.

57. I impose a term of imprisonment of 3 years with a non-parole period of 1 year and 9 months to date from 5 April 2021. The non-parole period will expire on 4 January 2023 and the head sentence will expire on 4 April 2024. The offender will be eligible to be released on parole on 4 January 2023.

58. Having regard to the length of the head sentence imposed, I have considered the possibility of ordering the sentence be served by way of an Intensive Corrections Order. By reference to s 66 Crimes (Sentencing Procedure) Act 1999, I have decided that such an order would not adequately ensure community safety.

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Decision last updated: 30 August 2022