R v Dong - [2012] VSC 525

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0089 of 2011

THE QUEEN

CHANG DONG

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	19-23, 26-28 March; 5 June 2012
DATE OF SENTENCE:	1 November 2012
CASE MAY BE CITED AS:	R v Dong
MEDIUM NEUTRAL CITATION:	[2012] VSC 525

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CRIMINAL LAW – Attempted Murder – Single stab wound – Offending out of character – Intoxication treated as a mitigating factor by reducing moral culpability.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Rochford SC	Office of Public Prosecutions
For the Accused	Mr D. Drake	Theo Magazis & Associates

HIS HONOUR:

Chang Zhong Dong, on 3 April 2012 you were convicted of the attempted murder of Zhong Zhang on 6 July 2010. A plea on your behalf was made on 5 June 2012.

Your case is a difficult one. At about 8.00pm on 6 July 2010, you stabbed Zhong Zhang once in the left upper chest. The stabbing occurred in a laneway alongside the San Yuan Restaurant in the Dandenong Plaza. Zhong Zhang worked at the restaurant as a chef. He had heard his car alarm go off twice and checked his car on each occasion. On the second occasion he went outside and saw a male in the area near his car. Zhang went to check his vehicle and did not find any damage. He thought the male had departed.

As Zhong Zhang turned to return to the restaurant, the male walked towards him quickly and, without warning, thrust a knife into his chest. At about that time, Zhong Zhang recognised you. He saw you were holding a knife wrapped in a piece of newspaper.

He shouted as loud as he could and retreated towards the restaurant, where he was assisted by his wife and Tao Zhang, who was the owner of the restaurant. They took him to the Dandenong Hospital in his own car. He was found to have a 2cm long stab wound on the left hand side of his chest penetrating his body and perhaps his lung. Because of his deteriorating condition, he was transferred to the Alfred Hospital, where he remained as an inpatient for a number of days. It is not entirely clear whether the lung was penetrated, but drains had been placed in both lungs at the Dandenong Hospital.

The wound in the upper left chest just above the left nipple was near to the heart. It was a serious one and could have been life threatening. The injury, however, is not a particularly serious one when compared with the injuries in cases of a similar kind which come to this Court.

You were arrested in the early hours of 7 July at your home, which was only a relatively short distance from the restaurant. You were extremely drunk at that time.

You were interviewed by the police the next morning. You told the police that you knew Zhong Zhang, who you thought was…

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 R v Dong

Details

AGLC: R v Dong [2012] VSC 525
Case: [2012] VSC 525
Decision Date: 1 November 2012

CaseChat Overview and Summary

In the case of R v Dong, the respondent was charged with attempted murder following an incident in which a single stab wound was inflicted upon the victim. The court had to determine the extent of the respondent's criminal liability for the act, taking into account mitigating factors such as his otherwise good character and the influence of intoxication at the time of the offence. The matter was heard in the Supreme Court of Victoria.

The primary legal issues before the court involved assessing the nature and severity of the attempted murder charge, considering the respondent's otherwise non-violent disposition, and examining the role of intoxication in potentially reducing the moral blameworthiness of the act. The court also had to consider whether intoxication could serve as a mitigating factor in the sentencing process, impacting the overall culpability of the respondent.

The court found that, while the act of stabbing was serious, the respondent's background and the circumstances surrounding the incident warranted a nuanced approach to sentencing. The judge acknowledged the respondent's intoxication as a significant factor, which contributed to the commission of the offence. The intoxication was treated as a mitigating factor that reduced the moral culpability of the act, leading to a more lenient sentence. The court ultimately decided that the respondent would be sentenced for attempted murder but with a recognition of the mitigating circumstances.

The court ordered that the respondent be sentenced for attempted murder, taking into account the mitigating factors presented. The precise sentence was not detailed in the extract but would reflect the court's consideration of the respondent's background, the nature of the offence, and the influence of intoxication.

Orders