R v Xu

[2010] NSWDC 148

CITATION:	R v XU [2010] NSWDC 148 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	4 June 2010
EX TEMPORE JUDGMENT DATE:	4 June 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	For the offence of supplying cannabis, I impose a fixed term of twelve months imprisonment. For the offence of wounding with intent to cause grievous bodily harm, I set a non-parole period of two and a half years with a head sentence of four and a half years.
CATCHWORDS:	CRIMINAL LAW - Sentence - Wounding with intent to do grievous bodily harm - Supply prohibited drug - Cannabis - Assistance to authorities
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
PARTIES:	The Crown Liang Gary Xu
FILE NUMBER(S):	DC 2009/78390
COUNSEL:	Ms V Lydiard (Crown) Mr P Boulton SC (Offender)
SOLICITORS:	Director of Public Prosecutions Austin Haworth & Lexon Legal (Sydney)

SENTENCE

1 HIS HONOUR: Liang Gary Xu comes before me for sentence on two completely separate matters. One of them is a most serious offence of wounding with intent to cause grievous bodily harm. That carries with it a maximum penalty of twenty-five years and a standard non-parole period of seven years. The other offence is an offence of supplying a prohibited drug, namely 2.8 kilograms of cannabis. That carries a maximum penalty of ten years imprisonment with no standard non-parole period.

2 I will begin these remarks by saying something about the standard non-parole period in this case. The various offences which carry with them standard non-parole periods have widely disproportionate ratios between the standard non-parole period and the maximum penalty. This has led to some difficulty as sentencing judges attempt to comply with the various statutory and common law requirements concerning sentencing. One particular difficulty which arises in the present case is that sentencing judges have to be careful not to focus only on the standard non-parole period and ignore the maximum penalty. I have borne both of those statutory constraints in mind in the present case.

3 The offender was a student studying cooking in Australia. He had previously been studying accountancy at Macquarie University. He was born in China and came to Australia via New Zealand primarily it would seem for the purpose of educating himself, although the New Zealand to Australia leg of the journey may have been more for an emotional reason.

4 Leading up to this offence he suffered from two significant circumstances which the evidence might suggest caused him to begin to drink more than he should and to start taking drugs. His father died and he broke up with his girlfriend. Mr Boulton said that this led to the offender entering something of a downward spiral. That may well be the case, but as remains obvious, most people who suffer losses of this type and who begin to drink more than they should and who even take drugs, do not end up stabbing innocent people and causing serious injury to them.

5 The events of 6 November 2008 are somewhat confusing. It appears that the offender was with a group of friends when he became aware of a dispute between a number of other people, in particular two women. This disputing became violent and the victim of this matter, Mr Zhou, attempted to separate the two women. A number of other friends of Mr Zhou were also about to step in to try and separate the two women when they were approached by an Asian man. This was a man by the name of Zheng who I will sentence immediately after sentencing the present offender. Mr Zheng was holding a knife approximately twenty-five centimetres long. He warned Mr Zhou and his friends not to become involved.

6 At this point Mr Zhou fell over, falling onto a roadway along with the two women. The offender Mr Xu is then seen on closed-circuit television. He was also armed with a knife. I mentioned before that he was studying cooking in Australia. As part of his cooking course he was required to purchase a number of knives and at some point before he was captured on the closed-circuit television it is clear that, having become aware of the altercation, he decided to arm himself with one of the knives from his cooking set.

7 The offender took steps to stop Mr Zhou assisting one of the women involved in the altercation. He pushed him and Mr Zhou went backwards. Mr Zheng, who it will be recalled was also armed with a knife, began to swing his right arm towards Mr Zhou’s torso. Mr Zhou continued to move backwards away from the offender and his co-offender Mr Zheng. At this stage the CCTV camera moves away from recording the incident, however what is clear is that Mr Zhou was stabbed by both this offender, Mr Xu, and his co-offender, Mr Zheng, a significant number of times.

8 It is impossible of course to work out who did what, but it does not matter. As Mr Boulton, senior counsel who appeared for Mr Xu concedes, his client is criminally responsible for all wounds, no matter who inflicted them upon Mr Zhou.

9 Immediately after the offence Mr Xu dumped the knife he had. It may well be that Mr Zheng was injured in some way in the melee and Mr Xu took him to hospital. Also taken to hospital was Mr Zhou. He suffered from a number of serious slash and puncture wounds. One of the wounds perforated his bowel, whilst the other wounds narrowly missed a number of vital organs.

10 The ferocity of the attack can be seen by considering the injuries which were observed when Mr Zhou was taken to hospital. The evidence regarding that is to be found in the statement of one of the doctors who treated him. Mr Zhou was found to have a thirty centimetre laceration to his left chest, two thirty centimetre lacerations to his left upper abdomen, a ten centimetre laceration to his mid left abdomen, a one to two centimetre deep penetrating laceration to his lower right abdominal flank. That was found to be penetrating his peritoneal cavity. He had a one centimetre laceration to his left shoulder, an eight centimetre deep laceration to his right lower back and other comparatively small but nevertheless serious lacerations to his back, his left buttock, his left thigh, his right elbow, his right forearm and his left little finger. Mr Zhou spent almost a week in hospital recovering from his wounds.

11 As police were investigating this matter they intercepted a number of telephone calls. This provided clear evidence as to the involvement in the offence of both Mr Xu and his co-offender. They obtained a search warrant in relation to the premises where Mr Xu was living. When they went there they found the remaining knives from Mr Xu’s cooking set and also a large quantity of cannabis, packaged in such a way and with other paraphernalia suggesting the drugs were to be supplied.

12 The cannabis when weighed was found to be 2.771 kilograms in the offender’s possession. He has now pleaded guilty to an offence of supplying that cannabis, although it has been his version of events asserted repeatedly that the drugs were for his own use. Of course that cannot be accepted given his plea of guilty.

13 The offender was born in China and is now twenty-seven years of age. He was brought up in a poor household and as Dr Borenstein’s report reveals, his upbringing was characterised by separation from his parents and the lack of male input. He went to boarding school, finishing high school and then went to New Zealand for the purposes of further study at the age of twenty.

14 He was socially isolated and inexperienced with members of the opposite sex. He met his first girlfriend in New Zealand and they remained together for some time. She moved to Australia and Mr Xu followed. As I mentioned before, his relationship with his girlfriend ended. This was in early 2007. It was then that he began to drink and abuse drugs. His problems were exacerbated of course after his father died.

15 Mr Xu has been seen by the psychologist and a psychiatrist. None of the findings of either suggest that any psychiatric or other condition of the offender significantly contributed to his offending, nor do they suggest that because of those matters his time in custody will be harder than it would otherwise be.

16 I turn now to one of the most important matters concerning the sentence to be imposed on Mr Xu. It is a matter where I exercise considerable circumspection and not say, nor even refer to obliquely, a number of matters which are highly significant to the ultimate sentence to be imposed.

17 I will content myself with saying this. The offender has assisted in the past and undertaken to assist in the future, the authorities. His assistance has been assessed. As a result of his assistance he has received threats and his safety is at risk. The assistance is of high order. It concerns two completely distinct matters; the matter for which he is to be sentenced today and another one where three offenders have been charged with very serious offences indeed.

18 As a result of that assistance he is serving his sentence on protection and it is likely, I find, that he will serve the entirety of his sentence in such a manner and there is a real risk that that will involve conditions of custody that are more onerous than in the general prison population.

19 Of recent time the Court of Criminal Appeal has provided significant assistance to judges of this and other courts concerning the appropriate discounts for such matters. Of course that discount encompasses a discount for pleading guilty, as the offender did, at the earliest opportunity. The Crown does not dispute that this is a matter which justifies a discount of fifty per cent. Mr Boulton suggested that a discount of a higher order was appropriate, but in my view this is not one of those rare cases where a discount beyond fifty per cent is appropriate.

20 In any case the sentence that I impose must bear a reasonable relationship to the gravity of the offender’s conduct. The legislature accepts that a discount for assistance will lead to a situation where that may not be the case, but the ultimate constraint to be found in s 23 of the Crimes (Sentencing Procedure) Act must be borne in mind. That is that the sentence must not be unreasonably disproportionate to the nature and circumstances of the offender’s misconduct.

21 It is clear that the offender is remorseful for what he has done. Perhaps the best evidence of that is his assistance, but there is other evidence as well; his immediate plea of guilt and a letter that he has written to the victim. I am satisfied that the offender is sorry for his actions which have led to Mr Zhou suffering such serious injuries.

22 I take into account that this is not a case where Mr Xu’s knives were carried with him habitually as weapons. They were, as I have repeatedly stated, legitimate tools of trade that he was using as part of his cookery course. On the other hand there seems to have been some time between the offender’s decision to arm himself with one of those knives and his decision to stab Mr Zhou. This was not a case where Mr Xu’s offending was spontaneous. He had to return to his car to get his knives. The time between his decision to get the knives and stabbing was short indeed.

23 I am required to assess the objective seriousness of the offender’s misconduct for the purposes of determining the relevance of the standard non-parole period for the s 33 offence. I take into account that Mr Zhou was confronted by two men, both armed with knives. The injuries were serious and whilst almost all of the offences of this type involve serious injuries, the number and nature of the wounds was also more than would usually be expected in an offence of wounding with intent to cause grievous bodily harm.

24 On the other hand the circumstance that the knives were opportunistically to hand rather than being habitually carried is a matter that clearly works in the offender’s favour. In objective terms I am satisfied that this offence is slightly above the middle of the range of objective seriousness for offences of this kind.

25 The offender has no prior criminal history either here or in China. I am satisfied that he has good prospects of rehabilitation and is unlikely to offend in the future. There are special circumstances in this case. It will be his first time in custody and as he will most likely be serving his entire sentence on protection, it is probable that he will have less access to courses, counselling and the like than would otherwise be the case.

26 Another thing I should say about his conditions of custody, it of course affects not only the non-parole period but the overall head sentence as well, is that because he is a native Mandarin speaker and because his English is limited, he finds himself somewhat socially isolated in custody where his association with other prisoners is limited to others in a similar situation to him.

27 Mr Boulton points out that despite what seems to be at first blush a large quantity of cannabis, almost all offences of this type are dealt with in the Local Court. Of course the supply cannabis matter is being dealt with in this court, it would seem, because of the other matter which can only be dealt with here. The quantity involved is less than one-tenth of the commercial quantity and the maximum penalty for a cannabis matter is significantly less than offences involving other drugs. Nevertheless as Mr Boulton concedes, the two offences are completely separate and there must be some measure of accumulation, although the principle of totality obviously applies.

28 Mr Xu is sentenced as follows. For the offence of supplying cannabis, I impose a fixed term of twelve months imprisonment to date from the date of his arrest, 8 April 2009. That is a fixed term because of the sentence I will impose on the other matter.

29 For the offence of wounding with intent to cause grievous bodily harm, I set a non-parole period of two and a half years to date from 8 October 2009. It will expire on 7 April 2012 on which day the offender is eligible to be released to parole. I set a head sentence of four and a half years for that matter, which means that the overall sentence is one consisting of the non-parole period of three years and a head sentence of five years.

30 Mr Xu did you understand that sentence? Would you like me to repeat it to you? I’ll repeat it to you. The effective sentence, which is I’m sure what you’re interested in, is that you will serve at least three years in prison dating from the date of your arrest. So that means the earliest date you can be released is 7 April 2012. You may be released on that date, but that will be a decision for the parole board and not me.

31 LYDIARD: Your Honour just in relation to the discount for future assistance--

32 HIS HONOUR: I know that - if you want me to say something about it, I will. I know that the authorities say that where possible a judge should - if this was a Commonwealth matter I would have no alternative, but I do have an alternative. In my view to say that a judge is capable of dividing up assistance into past and future with precision is simply wrong. It has to be done and the courts do the best they can where people do not comply with their undertakings. But to suggest that it can be done in every case before we know whether someone is going to comply with their undertaking or not is to suggest mathematical precision which is inappropriate. So I’m not going to. If Mr Xu does not comply with his undertaking, I apologise to the Court of Criminal Appeal. They will have to work it out.

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13/08/2013 - Correction on cover sheet - Paragraph(s) Cover sheet