R v Zhang - [2009] VSCA 236

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 936 of 2007

THE QUEEN

ZI WEI ZHANG

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JUDGES:	MAXWELL P and BUCHANAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 October 2009
DATE OF JUDGMENT:	13 October 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 236
JUDGMENT APPEALED FROM:	[2007] VSC 505 (Teague J)

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Criminal law – Sentence – Intentionally causing serious injury – Personality disorder – No impaired mental functioning – Remorse – Youthful offender – Sentence of six years and six months’ imprisonment with a minimum term of four years’ imprisonment not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Ms F L Dalziel	Victoria Legal Aid (Bendigo)

MAXWELL P:

I will invite Buchanan JA to deliver the first judgment.

BUCHANAN JA:

On 1 June 2006 the appellant, who is now aged 24 years, lived in his parents house at Forest Hill. The appellant was born in China and was brought to Australia by his parents in 1991. His parents for some years had spent a large part of their time in China, leaving the appellant in the family home. His parents were medical practitioners. The appellant and his parents were friends with another Chinese family who also lived in Forest Hill. The family consisted of a youth, Wei Tong Li, who was a contemporary of the appellant, and his parents. The appellant and Wei Tong Li were quite close friends.

On the night of 1 June 2006 the appellant went to the house of Wei Tong Li to use his computer to access the internet. Wei Tong Li moved aside to allow the appellant to use the computer after which Wei Tong Li used the computer himself. Behind his back, the appellant took a knife from a bag he was carrying. The appellant put the blade of the knife to the front of Wei Tong Li's neck and cut the skin, moving the blade back and forth across his neck. The appellant used his left hand to hold Wei Tong Li down. Wei Tong Li grabbed the blade of the knife, badly cutting his hands as he grappled with the appellant. Wei Tong Li called for his father, Er Lu Li, who rushed to assist him. Er Lu Li grabbed the appellant from behind. The appellant bit his wrist. The father and son gained control and the appellant ceased to struggle.

When the police arrived the appellant ran away. The appellant cooperated with the police although he was unable to give any logical explanation for his assault upon Wei Tong Li and his father.

The appellant was arraigned in the Supreme Court on a presentment containing a count of attempted murder, a count of intentionally causing serious

injury to Wei Tong Li and a count of intentionally causing injury to Er Lu Li. The appellant pleaded not guilty to the charge of attempted murder.

At the conclusion of the trial, the jury returned…

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 Zhang

Details

AGLC: R v Zhang [2009] VSCA 236
Case: [2009] VSCA 236
Decision Date: 13 October 2009

CaseChat Overview and Summary

The case of R v Zhang involved the defendant, Zhang, who was convicted of intentionally causing serious injury to another individual. The dispute arose in the Supreme Court of Victoria, where the issue of sentencing was to be determined. The legal issues the court was required to decide included the appropriate sentence to impose on Zhang, taking into account his personality disorder, lack of impaired mental functioning, remorse, and status as a youthful offender. The court had to balance these factors against the gravity of the offence and the need for punishment and deterrence.

The court considered the personality disorder and lack of impaired mental functioning, which indicated that Zhang's capacity to control his actions was not significantly diminished at the time of the offence. However, the court also noted Zhang's remorse and his status as a youthful offender, which were mitigating factors. In weighing these considerations against the gravity of the offence, the court determined that a sentence of six years and six months’ imprisonment with a minimum term of four years’ imprisonment was appropriate. The court held that this sentence was not manifestly excessive, taking into account all relevant factors.

The Supreme Court of Victoria ultimately upheld the sentence imposed by the lower court, finding that it was within the appropriate range for the offence committed. The court concluded that the sentence reflected a fair balance between the need for punishment and deterrence, and the mitigating factors present in Zhang's case. The court did not find any errors in the sentencing process or the weight given to the various factors considered.

The final orders of the court were to confirm the sentence imposed by the lower court, with no appeal against the sentence to be allowed. The court also ordered that Zhang be given credit for time served in custody prior to the imposition of the sentence. The decision provides guidance on the appropriate approach to sentencing in cases involving personality disorders, remorse, and youthful offenders, and reinforces the importance of balancing the various factors involved in determining an appropriate sentence.

Orders