R v Zhou

[2020] NSWDC 266

District Court

New South Wales

Medium Neutral Citation:	R v Zhou [2020] NSWDC 266
Hearing dates:	19 March 2020
Decision date:	19 March 2020
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Term of imprisonment of 8 years with a non parole period of 6 years.
Catchwords:	CRIME - SENTENCE - discharging a firearm with intent to cause grievous bodily harm
Legislation Cited:	Crimes Act 1900 (NSW), s33A(1)(a)
Category:	Sentence
Parties:	Regina (Crown) Gui Jun Zhou (Offender)
Representation:	Mr Kotsis (Crown Prosecutor) Mr Brewer (Counsel for the offender)
File Number(s):	2017/00091952
Publication restriction:	Nil

judgment

1. Gui Jun Zhou you appear for sentence today in relation to one offence, that is discharging a firearm with intent to cause grievous bodily harm. This involves a contravention of s 33A(1)(a) of the Crimes Act. The maximum penalty for that offence is twenty‑five years in prison. There is a standard non‑parole period of nine years imprisonment.

2. You appear for sentence because a jury found you guilty of that offence in a trial which commenced on 14 August 2019.  There has been an unfortunate delay in the imposition of sentence but it is not necessary for me to go over the reasons at present. 

3. The facts surrounding your offending can be briefly stated; and I am satisfied of these following facts beyond reasonable doubt. 

4. On 26 March 2017 you were a few days short of your forty‑ninth birthday.  You were therefore a mature adult.  And before that date you had already acquired a significant criminal record to which I shall return. But for present purposes that criminal record included three firearms offences and you had previously been to gaol.

5. As at March 2017 there was a young man, Fred Ushakov, who was a friend of your family.  He called you “uncle” which indicates the closeness between you and him. 

6. Mr Ushakov, at that time, was the owner of a silver Audi motor vehicle.  Somehow (and in circumstances quite obscure) his motor vehicle came to be outside your house. You had the keys to it and it was there without Mr Ushakov’s permission. 

7. Mr Ushakov wanted his car back and, on the date to which I have been referring, he and two of his friends went to your house to get it. 

8. When they arrived, you were there in the backyard with a friend of yours. There was then an argument between you and your “nephew”.  He wanted his car and you said he owed you money. He denied owing you money and the argument went backwards and forwards.  Another friend of yours arrived during the course of this argument.

9. Ultimately, Mr Ushakov decided that it was pointless continuing to argue with you and he and his friends started to leave your premises. As that happened, you somehow obtained possession of a firearm (a black pistol if memory serves me correctly); and then, at relatively close range, you fired four shots at your "nephew". One of those shots entered his body. Remnants of that bullet remain there today - and will remain there for the rest of his life. 

10. Following the discharge of that firearm by you, the parties dispersed and you were ultimately arrested.

11. I have to say, Mr Zhou, that until I read the psychologist’s report today, I was quite mystified (having sat through the trial) as to why you acted the way you did that day towards a close family friend. Why would a man react in that way as you did?  And I felt, I have to say to you, that there was something missing; that there was more to this dispute between you and your nephew than met the eye.  But I have read the psychologist’s report today - and there is the missing piece.  You suffer from a condition called Intermittent Explosive Disorder.

12. You were born in the People’s Republic of China in 1968. 

13. According to the psychologist’s report, you were part of an extended family which seems somewhat surprising (given that country's then well known one child rule) but that matter can be put to one side. 

14. It would seem that your father was a victim of the repressive regime in Communist China; that he was suspected of being a spy; and that when you were two years old, someone associated with the government (whether it be the red guards or a more formal government institution) took your father away and he was imprisoned until his death.

15. You came to Australia when you were 15 years old with your surviving family in 1984 as a refugee. 

16. You married but your marriage eventually broke down. You have some children to that marriage and those children are strongly supportive of you. 

17. Your education was to the equivalent of year 10 in China. But having come to Australia at the age of fifteen, you have worked reasonably hard, mostly as a gyprocker. 

18. You have experimented with illegal drugs - heroin, cocaine, ecstasy.  You have used alcohol. But you have used none of these drugs to excess. 

19. You have also had a long term exposure to cannabis but again that illicit drug use (although costing you $20 to $50 each day) has not been as excessive as others who have sat in the same seat as you. 

20. But certainly your drug taking, at whatever degree, had nothing to do with your offending on this occasion.

21. As I have already indicated, you have an unfortunate criminal history. By the time of this offending it included not only the three firearms offences to which I have earlier referred, but also numerous offences of violence. 

22. You are therefore not entitled to the leniency which, in an appropriate case, can be extended to a first offender.

23. The objective seriousness of your offending, in my view, is slightly below the middle of the range for an offence of its kind.  

24. It has been submitted by the Crown, if I have understood his submissions correctly, that the offence is additionally aggravated by reason of your prior criminal history.  Notwithstanding that that submission was not challenged by your counsel, I do not regard it as an additional aggravating factor - it is close, but it is not quite there.

25. You have not expressed remorse for your criminal conduct.  You are not to be punished for exercising your right to a trial. But following your conviction you have continued to deny your responsibility and therefore you have shown no remorse. 

26. Remorse is an important factor in considering your prospects of rehabilitation, but it is not the only factor.

27. The psychologist’s report tendered on your behalf tells me that in 2014, as part of your Probation and Parole requirements, you consulted a psychologist for eighteen months - but that is all I am told.  I do not know why you consulted the psychologist; or what condition was examined.  I do not know, for example, whether that psychologist treated  you for Intermittent Explosive Disorder or for something else.  I am told the you consulted that person for eighteen months.  If it were in connection with Intermittent Explosive Disorder clearly, from what you did to your nephew, that treatment was unsuccessful. But I am not going to speculate about that adversely to you because I do not know what you saw that psychologist about. 

28. There is, therefore, no evidence that you have previously been treated for this disorder; and there is no expression of opinion by the psychologist who prepared the present report as to your prospects of successfully treating that disorder if you underwent the treatment program recommended.

29. I said before that you had the support of your family - and two of your daughters are present in Court today, one of whom has adopted two of your other young children. 

30. The fact that you have the support of your daughters is a positive factor for you, as is your work history. 

31. But balancing all matters together, my assessment of your prospects of rehabilitation is that they are extremely guarded.

32. The sentence to be imposed upon you, Mr Zhou, must be one that discourages you from reoffending.  It must be one that discourages others from doing what you did.  It must be one, in the circumstances, which protects the public from you - given that your very serious disorder has not been addressed.  And it must be one which seeks to encourage your rehabilitation.

33. No sentence other than one of fulltime imprisonment is appropriate. 

34. The period of imprisonment which I shall shortly impose upon you must be backdated by 909 days to take into account the period of time that you have been in custody - both bail refused after your arrest and following your conviction.

35. The Crown has submitted that I should not make a finding of special circumstances to vary the ratio of the head sentence to the non‑parole period.  That submission was not challenged by your counsel.  I have independently considered the matter and I agree, notwithstanding the lack of challenge, that this is a matter which would not justify a finding of special circumstances.

36. Gui Jun Zhou for the offence of discharging a firearm with intent to cause grievous bodily harm, I sentence you to a term of imprisonment of 8 years.  I fix a non‑parole period of 6 years.  That non‑parole period will be backdated so as to have commenced on 22 September 2017 and you will therefore be eligible for parole on 21 September 2023.  I fix a balance of 2 years to commence 22 September 2023 and which will expire on 21 September 2025.

37. Whether you are admitted to parole Mr Zhou is a matter for the Parole Board, and the Parole Board alone, but I have noted in your criminal history a number of infringements that you have recently been found guilty of.  If you continue in that fashion that will not assist your prospects of obtaining a grant of parole.

Decision last updated: 03 June 2020