Zheng v R - [2023] NSWCCA 64

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zheng v R [2023] NSWCCA 64
Hearing dates: 4 April 2022
Date of orders: 22 March 2023
Decision date: 22 March 2023
Before: Gleeson JA at [1]
Hamill J at [301]
Ierace J at [306]
Decision:
(1)   Grant leave to appeal against conviction and sentence.
(2)   Appeal against conviction dismissed.
(3)   Appeal against sentence allowed.
(4)   Set aside the sentence imposed by her Honour Payne DCJ on 21 May 2021.
(5)   In lieu, sentence Biyun Zheng to a term of imprisonment of one year and 10 months commencing on 22 March 2023 to be served by way of an Intensive Correction Order commencing on 22 March 2023 and expiring on 21 January 2025.
(6)   The Intensive Correction Order is subject to the following conditions:
(a)   the offender must not commit any offence; and
(b)   the offender must submit to supervision by a community service officer.
(7)   The applicant is to report on or before 5 April 2023 to the Parramatta office of Corrective Services NSW, or such other location as may be advised by the Commissioner for Corrective Services.

Catchwords:
CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Judge alone trial — Whether judge’s verdict was open upon the whole of the evidence
CRIME — Appeals — Appeal against conviction — Whether failure to give sufficient reasons — Judge alone trial — Whether reasons for the verdict disclose a sufficient basis for findings of fact — Criminal Procedure Act 1986 (NSW), s 133(2)
CRIME — Appeals — Appeal against sentence — sentence of imprisonment of 2 years 6 months with non-parole period of 10 months — Whether sentence manifestly excessive — Applicant resentenced — Whether appropriate sentence of 2 years imprisonment should be served by way of an ICO – Whether term of imprisonment to be served by way of ICO should be adjusted and reduced in recognition of period of pre-sentence custody

Legislation Cited:
Crimes Act 1900 (NSW), ss 33(1)(a), 35(4), 418, 419
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 4A, 4B, 5, 7, 21A, 24, 47, 66, 68, 71, 72, 73, 73A
Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
Crimes (Administration of Sentences) Regulation 2014 (NSW), reg 187
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), 133(2)
Evidence Act 1995 (NSW), ss 38, 128

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Byrne v R [2020] NSWCCA 218
Clarke-Jeffries v R [2019] NSWCCA 56
Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221
Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Douglas v R [2012] HCA 34; (2012) 290 ALR 699
Elias v R [2006] NSWCCA 365
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Fleming v R (1998) 197 CLR 250; [1998] HCA 68
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
Mandranis v R [2021] NSWCCA 97
Moodie v R [2020] NSWCCA 160
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Oblach v R (2005) 65 NSWLR 75; [2005] NSWCCA 440
Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294
Rogers v The Queen (1994) 181 CLR 251
RO v R [2019] NSWCCA 183
R v Dodd (1991) 57 A Crim R 349
R v Geebung [2020] NSWDC 546
R v Katarzynski [2002] NSWSC 613
R v Pullen [2018] NSWCCA 264
R v Zamagias [2002] NSWCCA 17
Sivaraja v R; Sivathas v R [2017] NSWCCA 236
Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
Turnbull v R [2019] NSWCCA 97
Wany v R (2020) 103 NSWLR 620; [2020] NSWCA 318

Category: Principal judgment
Parties: Biyun Zheng (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
T D Anderson SC (Applicant)
G A Newton (Respondent)
Solicitors:
Lisa De Luca & Co (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2017/167603
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

12 August 2020 and 21 May 2021

Before:

Payne DCJ

File Number(s):

2017/167603

Judgment

GLEESON JA: The applicant, Ms Biyun Zheng, seeks leave to appeal against conviction following a judge alone trial in the District Court. Alternatively, the applicant seeks leave to appeal against sentence.
The applicant was charged with and pleaded not guilty to alternative counts relating to the stabbing of her husband, Mr Wenhui Pan (the complainant), on 4 June 2017 at their Auburn home. Count 1 alleged wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act1900 (NSW). The alternative count 2 alleged wounding being reckless as to causing actual bodily harm contrary to s 35(4) of the Crimes Act.
The applicant’s first trial in the District Court was terminated in August 2019 after seven days of hearing, following a joint application of the parties to discharge the jury. Her second trial in the District Court before a judge alone was conducted over 9 days between June and August 2020. At trial, the applicant admitted to stabbing the complainant and relied upon self-defence in answer to the two offences with which she was charged.
On 12 August 2020, Judge Payne found the applicant not guilty on count 1 and convicted the applicant on count 2, an offence carrying a maximum penalty of 7 years imprisonment with a standard non-parole period of 3 years. Her Honour published her reasons for decision on that date (the verdict judgment).
On 21 May 2021, her Honour sentenced the applicant to a term of imprisonment of 2 years and 6 months with a non-parole period of 10 months. The applicant filed a notice of intention to appeal against sentence on the day sentence was imposed. Her Honour granted bail pending appeal.
The applicant seeks leave to appeal against conviction on two grounds, or alternatively sentence on a single ground, as follows:

Ground 1: the verdict is unreasonable and cannot be supported by the evidence.

Ground 2: the reasons for the verdict of the learned trial judge do not disclose a sufficient basis for determining that the guilt of the applicant has been established as required by s 133(2) of the Criminal Procedure Act 1986 (NSW) (the CPA).

Ground 3: the sentence imposed was manifestly excessive.

To the extent that either of the grounds of appeal against conviction does not involve a question of law alone, leave is required: Criminal Appeal Act 1912 (NSW), s 5(1)(b). Leave to appeal against sentence is also required: Criminal Appeal Act, s 5(1)(c). The Crown did not oppose the grant of leave for both appeals. There should be a grant of leave to appeal against both conviction and sentence.
I have concluded for the following reasons that leave to appeal should be granted, the conviction appeal should be dismissed, and the sentence appeal should be allowed. On resentence, I consider that a lesser sentence is appropriate and therefore the sentence imposed upon the applicant on 21 May 2021 should be set aside. In lieu, a sentence of two years imprisonment is appropriate which should be served by way of an intensive correction order (ICO). The term of imprisonment actually recorded and imposed should be adjusted in recognition of the period of pre-sentence custody reducing the term of imprisonment imposed to be served by way of an ICO to 1 year and 10 months. The conditions attaching to the ICO are referred to below.

Summary of the Crown case

The applicant and the complainant were married in 2010. They purchased a house in Auburn in 2013, subject to a mortgage in favour of Westpac Banking Corporation (Westpac). After separating in 2014, they continued to reside in the Auburn house in separate rooms. As of June 2017, the other residents included Mr Jiahao Zhang aged 21 years, the applicant’s adult son from a previous relationship, and JP aged 6 years, the applicant’s younger son from the marriage with the complainant. Both sons shared a room at the rear of the house. Two boarders, Mr Kuang Yu (David) Liu and Ms Shu Qi, also occupied separate bedrooms. The complainant slept in the loungeroom.
A floorplan of the Auburn house tendered at trial (Ex B) depicted an “L” shaped house with the front entry door in about the middle of the house which opened into a foyer. To the left of the front entry door was a hallway that led back away from the front entry to a bedroom occupied by the applicant, a bathroom, and the front bedroom occupied by Ms Qi. Straight ahead, the hallway led to the kitchen, with a bedroom on the left opposite the kitchen occupied by Mr Liu. To the right of the entrance foyer was a doorway leading to the loungeroom, which the led to a separate covered area occupied by the applicant’s two sons.
The relationship between the applicant and the complainant was volatile. There was a long history of verbal arguments and police had attended the Auburn house on four occasions in the past due to complaints about arguments and raised voices. There was a dispute at trial as to whether the complainant had been physically violent towards the applicant during any of these arguments.
The Crown case was that when the complainant returned home from work at about 6:30 pm on 4 June 2017, he was confronted by the applicant who began arguing about the mortgage. All the other occupants of the house were in their rooms. The verbal argument occurred in different rooms in the house for about one hour and culminated in the complainant being stabbed by the applicant in the hallway outside the applicant’s bedroom, near the bathroom.
On the Crown case, during the argument the complainant took the younger son JP from his bedroom to the loungeroom and held him in his arms as he sat down on the couch. The applicant followed the complainant and continued to argue with him. Eventually, the complainant stood and moved towards the kitchen still with JP in his arms. The applicant followed and continued to verbally argue with the complainant in the kitchen. After arguing in the kitchen, the complainant moved down the hallway to get away from the applicant still holding JP in his arms. The applicant followed the complainant and used a small kitchen knife to stab him in the back towards the lower left-hand side. The complainant put JP on the floor and took some steps down the hall before collapsing. The applicant was immediately remorseful. The tenant, Mr Liu, came out of his room and alerted the adult son, Mr Zhang, requesting that he call emergency services. Mr Liu told the applicant to use a cloth to stop the bleeding. While the applicant was tending to the complainant’s wound, both Mr Zhang and Mr Liu heard the applicant say, “I’m sorry, I’m sorry”.
When police arrived at the house, they observed the applicant kneeling alongside the unresponsive complainant in the hallway, blood around the complainant had been cleaned up, and a blood-covered rag was found in the bathroom. Drops of blood were located in the hallway leading into the kitchen. Police later located three blue-handled knives in the kitchen pantry, several of which appeared to have blood on them. The other tenant, Ms Qi, was not present when police arrived; it was not clear when she left the house, although she was apparently at the house at the time of the incident.
The complainant was taken to hospital and underwent emergency surgery for the stab wound at the posterior line on the left side near the T10 vertebrae. He underwent further surgery the following day for re-exploration of the abdomen. A scan showed a laceration of the left kidney, which did not require surgery. The complainant was discharged from hospital on 9 June 2017. The Crown led photographic evidence of the precise location of the stab wound (Ex E), together with a report from Dr Savitha Bhagvan, which described the complainant’s injury as being a depth of 2 cm (Ex M).
The applicant participated in an electronically recorded interview with police (ERISP) with the assistance of a Mandarin interpreter, very early on the morning of 5 June 2017. During the interview, the applicant admitted to arguing about the mortgage, which was a regular argument with the complainant. She said the complainant spent his money on gambling and had an affair with someone else, and that he had insisted that the house be sold, and they then divorce. She denied injuring the complainant, denied knowing how he was injured, and denied she had been assaulted that night. She also made no mention about being previously attacked by the complainant.
After the police interview, photographs of the applicant were taken, including of her face, neck, hands, and arms. Detective Snr Con (DSC) Muscat gave evidence at trial, reading from his statement, that he did not see any visible injuries on the applicant. Nor was such a suggestion put to DSC Muscat in cross-examination.
On the Crown case, at no time during the evening of 4 June 2017 was the complainant physically aggressive towards the applicant and he did not touch her. Further, from the time the complainant took the young son from his room, JP was being held by the complainant with both hands, meaning he was never in a position to strike or hold the applicant.
On the question of whether the applicant acted in self-defence, the Crown case was that this claim by the applicant was not true and was made up by her after the incident. The Crown emphasised that the applicant had denied being attacked by the complainant when she was interviewed by the police immediately after the incident and there was no evidence of injuries suffered by the applicant.

The defence case

The defence case was that the Crown had failed to exclude the possibility that the applicant was acting in self-defence when she stabbed the complainant.
On the defence case, the verbal argument on 4 June 2017 turned physically violent in the loungeroom and this violence continued in the kitchen when the complainant used his free hand while holding JP to repeatedly punch and hit the applicant in the head, neck, and arms, followed by choking. The defence case was that the applicant was being choked and could not speak immediately prior to the complainant being stabbed in the kitchen, not the hallway. In closing submissions, defence counsel accepted that if the applicant followed the complainant down the hallway while he was trying to get away from her then, on the complainant’s version of what occurred, the applicant’s response could not be self-defence.
The defence case relied on asserted tendency evidence that the applicant had three tendencies which provided context for the applicant stabbing the complainant: to be physically and mentally abusive towards the applicant; to ask both the applicant and her son, Mr Zhang, not to tell the truth to police when they attended to investigate the previous incidents of alleged violence; and to make threats to the applicant if she reported the complainant’s abuse, including that she would lose custody of their son or that he would take her son back to China.
In support of the first tendency, the defence relied upon evidence given by the applicant of previous incidents involving physical and mental abuse by the complainant together with some corroboration of the applicant’s evidence by her adult son, Mr Zhang, with respect to injuries he observed on the applicant’s face and arms, and by the tenant, Mr Liu.
In support of the second tendency, the defence relied upon evidence of the applicant and Mr Zhang that the complainant told them to tell the police that nothing happened. Mr Zhang’s evidence was not challenged on this topic.
The defence case also relied upon evidence of the applicant as to her perception of events, and evidence of Dr Peter Ashkar, a neuropsychologist, concerning the applicant’s psychological state at the time of the incident as support for characterising the applicant as suffering “battered woman syndrome” at the time of the incident.

Conviction appeal

The unreasonable verdict ground must be determined irrespective of the disposition of ground 2. With respect to ground 2 which asserts inadequate reasons, a finding by the Court upholding that ground would, alone, justify no more than an order for retrial. However, if the unreasonable verdict ground should be upheld, a verdict of acquittal would be entered. It is therefore convenient to commence with consideration of the unreasonable verdict ground, where the applicant had raised self-defence.

Self-defence

Self-defence is governed by ss 418 and 419 of the Crimes Act which relevantly provide:

418 Self-defence—when available
(1)   A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2)   A person carries out conduct in self-defence if and only if the person believes the conduct is necessary—
(a)    to defend himself or herself or another person, …
…
and the conduct is a reasonable response in the circumstances as he or she perceives them.

419 Self-defence—onus of proof
In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.

As Simpson J observed in Elias v R [2006] NSWCCA 365 at [21], “[i]t is strictly incorrect to refer to self-defence as a ‘defence’: by s 419, where self-defence is raised, the onus lies upon the Crown to prove that the conduct giving rise to the charge(s) was not carried out in self-defence”.
The questions to be asked by the tribunal of fact under s 418(2) were stated by Howie J in R vKatarzynski [2002] NSWSC 613 at [22] as follows:

(1) is there is a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself; and (2) if there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them.

Howie J stated at [23] that the first issue “is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he or she carried out the conduct”. The second question “is determined by an entirely objective assessment of the proportionality of the accused’s response to the situation the accused subjectively believed he or she faced”: at [23]. This analysis has been repeatedly endorsed by this Court, for example: Oblachv R (2005) 65 NSWLR 75; [2005] NSWCCA 440 at [50]-[54]; Elias v R at [22]-[23]; Sivaraja v R; Sivathas v R [2017] NSWCCA 236 at [122].
As Simpson J observed in Elias v R at [23], each of these questions involves an assessment of the state of mind of the person accused. The first question goes directly to the belief of that person, whilst the second goes to the reasonableness of the conduct in the light of the circumstances as that person perceived them to be.

Principles on which the unreasonable verdict ground is to be determined

In determining an appeal on an unreasonable verdict ground the approach required to be taken by the Court is exactly the same where the trial has been before a judge alone as where the trial has been by jury: Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221 at [15]. Thus, the approach to be taken is in accordance with M v The Queen (1994) 181 CLR 487; [1994] HCA 63, as applied in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [12] (French CJ, Bell, Keane and Nettle JJ) and [82] (Gageler J).
In Dansie, the joint judgment of Gageler, Keane, Gordon, Steward and Gleeson JJ said at [8]-[9] that the reasoning in the joint judgment in M requires:

[8] … that "the question which the court must ask itself" when performing that function is "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty", that question being "one of fact which the court must decide by making its own independent assessment of the evidence".

[9] The joint judgment in M made clear that "in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses". The joint judgment equally made clear how those considerations are to impact on the court's independent assessment of the evidence. That was the point of the carefully crafted passage in which their Honours stated:
It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. (Citations omitted)

Dansie continued at [16]:

… The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial.

The same point had earlier been made in Filippou by French CJ, Bell, Keane and Nettle JJ at [12], and by Gageler J at [83].
It was observed in Dansie at [17] that the advantage of the trial judge in seeing and hearing the evidence “will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial”. In a case like the present, where the testimonial evidence adduced by the prosecution was largely contested and the applicant also gave evidence, the advantage enjoyed by the trial judge was significant.
In this case, the applicant did not limit her argument about unreasonableness of the verdict to particular components of the evidence, or discrete aspects of the trial judge’s reasoning. In accordance with Dansie, for this Court to decide whether it feels a reasonable doubt about the applicant’s guilt and, if so, whether such doubt cannot be resolved by taking into account the trial judge’s advantage in seeing and hearing the evidence, it is necessary to review the whole of the evidence. That is to be done with a focus on the issues in the trial.

Evidence as to the incident on 4 June 2017

The major component of the Crown case was the evidence of the complainant. The Crown also called evidence from Mr Liu, Mr Zhang, various police witnesses, and tendered expert certificates from medical and forensic experts. The applicant gave evidence at trial. Each of the complainant, Mr Liu, Mr Zhang, and the applicant gave evidence with the assistance of a Mandarin interpreter.

The complainant’s evidence

The complainant’s evidence-in-chief was principally given by way of a recorded DVEC interview when he was at Westmead Hospital on 7 June 2017. At the beginning of the interview the complainant said that on the evening of 4 June 2017 he was at home with the applicant who kept arguing with him, he tried to ignore her, but she swore at him and later she began to swear at his son, JP, who was scared so the complainant had to hold him. He said that the applicant was holding a pair of scissors and said, “I will die with you”, while he was holding JP in his arms and JP was very scared. Later, the applicant was in the middle of the hallway and was very angry, he had no idea she was holding a knife, he believed she was holding scissors and only scaring “us” with those. While the complainant was holding JP, the applicant stabbed him from behind. The complainant said, “she didn’t realise that, she said she saw that there was a cover, to cover the knife”. It was dark and the complainant didn’t know what he was stabbed with, but he thought it was a knife; he did not see what type of knife or colour.
The complainant’s DVEC evidence continued that “at the beginning” the applicant was holding scissors and “I think … hitting me” and “then later” she was swearing and upset. He “tried to ignore her, you know, she was always like that”. He was holding JP in his arms when he was stabbed in the hallway outside the doorway to the applicant’s room, not far from the bathroom. After he was stabbed, there was a burst of blood and he sat down and asked JP to leave. The tenant, Mr Liu, came out and saw him bleeding and called the ambulance. He did not see what happened to the weapon that cut him as he was “out”, but he thought the tenant told the applicant to use a cloth to stop the bleeding.
The complainant described the argument as being about paying the mortgage. He said that he did not have enough money to pay the mortgage and wanted the applicant to get some money. He was planning to sell the house, but the relationship was not very good. The applicant said they should leave the house to their son, and the complainant said, “[a]fter I sell the property, I can give it to my son”. He said the applicant wanted a divorce first, and then to sell the property, but he preferred to sell and then apply for a divorce. They had been arguing for four or five years. He denied assaulting the applicant that night.
The complainant did not see the applicant change to another weapon. He said when the applicant was holding the scissors he was sitting on the couch or lounge, the scissors were not very sharp, and the applicant said, “I want to die with you”. He was stabbed by the applicant in the hallway when “I was holding my son, and he was holding me and, uh, did not let me go”. She was “next to me, face to face”, and he was stabbed while holding JP, who had asked the complainant to take him to his room. It was very dark, he was holding his son, the applicant was standing opposite him and then he was stabbed, and he felt the blood burst out.
In cross-examination, the complainant was first asked about earlier incidents. He agreed that there had been verbal arguments during the relationship and denied being physically violent towards the applicant. He admitted that after the applicant returned from China in October 2013, they had an argument about the complainant regularly calling a female person according to phone records. He denied punching the applicant on this occasion with a closed fist and choking her around the neck. He denied that he was regularly violent to the applicant after 2013. He agreed that police had come to the Auburn house four times, and he had used his stepson, Mr Zhang, to translate. He denied physically assaulting the applicant during several incidents that were specifically put to him in cross-examination. These are conveniently referred to below in the context of the applicant’s evidence of prior incidents: see at [91]f.
When challenged on his version of the incident on 4 June 2017, the complainant said that the applicant “went to harass the child” and he took JP from his bedroom because his son was frightened and crying. He agreed that he said to the applicant, “I want to sell the house”. He told the applicant, “[d]on’t argue with such a loud voice, the child gets scared”. The complainant confirmed that after he went to the bedroom to get his son, he sat on the couch in the living room holding JP in his arms. He denied punching the applicant with one hand and grabbing her throat when she attempted to take JP away from him on the couch. He said he was holding JP with both hands. He denied punching he applicant when he stood up from the sofa. He denied JP was holding him around the neck, he denied that he held JP with one hand and continued to punch the applicant, trying to punch her and grab her around the neck.
He said the applicant kept on arguing with him as he carried his son JP to the kitchen and the applicant followed him. He denied that he pushed the applicant towards the kitchen as she walked backwards from the loungeroom. It was not put to the complainant in cross-examination that he threw something at the applicant when they were in the kitchen. After arguing in the kitchen, the complainant said he walked towards the bathroom to get away from the applicant. The stabbing happened in the hallway before he got to the bathroom, outside the applicant’s room, opposite the bathroom.
It was put to the complainant that whilst holding his son in one arm he was choking the applicant with his free hand, both on the couch and immediately prior to the stabbing. The complainant denied that he choked the applicant, whilst agreeing that the arguing continued leading up to the stabbing. He said there was nothing physical before the stabbing. He said that he was not concerned for JP’s safety because the applicant “wouldn’t hurt my son” and the “argument was only verbal”.
Although the complainant initially described the distance from the kitchen to where he was stabbed as between 10 to 20 metres, he qualified this estimate and said the distance was “about the size of a room, a little bit bigger than that. I don’t know how many metres”. When asked whether he moved far from where he was stabbed before he was lying on the ground, the complainant said “[n]o”. He then gave the following evidence:

Q. So you didn’t move far at all?
A. INTERPRETER: Not far, because I was holding the child.

At the end of the first day of his cross-examination, the complainant was asked directly whether the applicant had held scissors at any point. He immediately confirmed that she had. He said he thought she was joking. On the following day, defence counsel suggested to the complainant that he had left the scissors “out of the story” until it was raised in cross-examination the previous day. The complainant responded, “[b]ecause you were asking what happened later on. So, what my answer covered was what happened later on”. The complainant denied making up his evidence about the scissors.
At the request of defence counsel, the complainant marked a copy of the diagram of the Auburn house with an “X” where the stabbing occurred, which he said was “just outside her door, near the bathroom” (Ex 1). The complainant indicated that he was stabbed when, “I was holding my son like this, and she stabbed me from the back”, which the Crown noted for the transcript, “the witness indicated holding his son with two hands in front of his stomach area”. The complainant said that there were two sets of arguments “over there as well”, referring to when the applicant followed him down the hallway, and that after the argument in the kitchen, he went down the corridor and the applicant followed and in front of the bathroom, stopped and “[t]hen the argument goes on here, and then the stab”. He agreed that he was “face-to-face” with the applicant at the time of the stabbing. The complainant adhered to his evidence that he was holding his son with both arms when he was stabbed by the applicant. He rejected the cross-examiner’s suggestion that his son was supporting himself by holding him “round the neck and with his legs”, responding “[i]t is nothing like that”. He denied that he had a free arm which he used to assault the applicant.
At the conclusion of his evidence, the complainant indicated that he wished to say something further, which was written down and translated as, “[s]he did not do it on purpose”. He agreed with the proposition put by defence counsel that, “the stabbing by your ex-wife was not deliberate” and said that the applicant “was impulsive and emotional”. He said that during the incident “we didn’t get into anything physical”.

Mr Zhang’s evidence

Mr Zhang gave evidence that the complainant and applicant frequently argued leading up to 4 June 2017 and since about 2016, they had been arguing about money a lot, that the complainant had missed mortgage payments and had gambled on occasions.
On the evening of 4 June 2017 at about 6:30 pm, Mr Zhang was sleeping in his room, his younger brother JP was on the computer in that room, and the bedroom door was closed. He heard the complainant and the applicant arguing about mortgage repayments, and the arguing continued back and forwards. About 10 or 20 minutes after the argument begun, Mr Zhang heard what he thought was a porcelain object smash; it sounded like it came from the kitchen. He heard the complainant and the applicant swearing at each other loudly and what sounded like cutlery falling to the ground and drawers and doors slamming. The arguing lasted for one hour. After a loud knock, he opened the door (to his room) and saw Mr Liu who asked him to come because “something had happened”. He saw the complainant on the floor in the hallway approximately outside the toilet door between the applicant’s bedroom and the bedroom occupied by the lady tenant.
In cross-examination, Mr Zhang confirmed that he gave evidence in the previous trial on 1 August 2019 that the complainant and the applicant were arguing about the mortgage and the custody rights of their son; he heard the applicant say, “[i]f you don’t want to pay, let’s get divorced”; the complainant said the applicant should be making all the repayments; there was a reference to being $10,000 behind in the mortgage repayments; and during the argument the complainant came into the room and took JP away.
Mr Zhang said that JP was on the computer with his headphones on when the complainant came into the room and took him away and that after JP was taken away, he heard the beginning of the argument about JP. Mr Zhang gave differing evidence as to whether JP was crying when the complainant came to collect him from the bedroom. In cross-examination, he initially responded to an open question as follows:

Q. Was [JP] crying when the complainant came into the room and took him away?
A. INTERPRETER: Yes.

However, later in later cross-examination on the following day, he gave this evidence:

Q. You said yesterday at some stage your little brother [JP] was crying?
A. INTERPRETER: Yes?

There was no objection by the Crown to this question on the ground that the words “at some stage” were not an accurate reflection of Mr Zhang’s earlier evidence which was specific that JP was crying when the complainant came to the room and took him away.

The cross-examination continued, with the following leading questions:

Q. I want to suggest he only started crying after your stepfather took him out where you (sic) mother was and where the fight was occurring?
A. INTERPRETER: Yes.
Q. So, at the time your father came to get him he was entertaining himself with the headphones on, playing the computer game?
A. INTERPRETER: Yes.
Q. And it’s only after your father came and got [JP] and they started arguing about his custody that he started crying.
A. INTERPRETER: Yes.

Mr Zhang agreed that he gave evidence at the previous trial that he heard the complainant say to the applicant “that night” that he was going to take JP back to China without her, that he heard both of them shouting at each other in the kitchen, then heard the crashing noises in the kitchen, and that after Mr Liu came and knocked on his door, he came out and saw the complainant in the hallway and heard the applicant saying, “I’m sorry, I’m sorry” to the complainant. He observed that the applicant was very upset and crying.
With respect to earlier incidents, Mr Zhang said that he had seen his mother injured in the past but did not recall the “specific numbers”. He described the injuries he observed on the applicant as being the “[f]ace and the arm, or arms”. When asked if he saw bruises to his mother’s forehead and face “about one to two years before the stabbing occurred”, Mr Zhang answered “[y]es”, and said the applicant had told him that the complainant “did it”. Although he asked the applicant, “[w]hy don’t you go to the police?”, he did not recall the detail of any response, or the specific year it happened.
Mr Zhang was the asked about attending Auburn Police station, together with his mother and Mr Liu, following an argument which he said resulted in “some injuries on her face or – sorry, and on her arm or arms”. When asked whether that was the “same occasion that you spoke about a little while ago”, he responded, “[i]t’s – it’s the same occasion”. He agreed that he gave evidence at the previous trial that when he attended Auburn police station on 23 January 2017, he observed the applicant’s “face was swelling”, and his mother told him that she was hit by the complainant. Defence counsel noted that although she had previously asked Mr Zhang about an occasion one or two years before the stabbing, Mr Zhang had said it was the “same occasion” as when he attended the Auburn Police station in January 2017.
Mr Zhang also confirmed that he gave evidence at the previous trial that the complainant told him to tell the police nothing had happened if the police turned up at the Auburn house. When asked “[h]ow many times did he tell you that?”, he answered, “[e]very time”. When asked what injuries he observed, Mr Zhang responded that he could not see the other places, “most of the time I can see on the arm”. When asked what he saw on the applicant’s arm, Mr Zhang responded, “I don’t recall clearly”.
In re-examination, it was put to Mr Zhang that he had not seen anything before he had the conversation with the complainant telling him to say to the police that nothing had happened. He responded, “[s]ometimes I saw it; sometimes I do not”.

Mr Liu’s evidence

The tenant, Mr Liu, gave evidence that at about 6:30 pm on 4 June 2017 he was watching television in his room with the door closed. He heard the complainant “eating outside”, he heard some noise, but he did not pay much attention. He said there was probably some chat between the complainant and the applicant.
Following an application by the Crown, leave was granted pursuant to s 38 of the Evidence Act 1995 (NSW) to cross-examine Mr Liu who then gave evidence that he heard an argument between the complainant and the applicant. Initially the argument was not “that intense”, and then “it became more intense”. He heard arguing about the mortgage. He turned his television louder as he did not want to listen. At one point he heard a sound of a glass cup being smashed or broken in the kitchen; his room was next to the kitchen. He said there might have been a short pause in the argument, but he did not have much interest and did not pay attention.
At the end of the arguing, Mr Liu heard the complainant say something like, “I am very hurt”. At that point, Mr Liu walked out of his room and looked down the hallway in the opposite direction to the kitchen; he saw the complainant lying on the ground and the applicant next to him. Mr Liu marked Exhibit B the letter “P” with a line to a circle, the location where he saw the complainant lying. He described the applicant looking, “pretty worried or anxious”, and heard her say, “I’m sorry, I’m sorry”. Mr Liu went to the bedroom occupied by Mr Zhang and the younger son and called him to come quickly and to call emergency services.

In cross-examination, Mr Liu agreed that while waiting for the ambulance the applicant was crying and rocking back and forth on the ground, kneeling over the complainant, and using the towel to put pressure on the complainant’s wound. In response to the suggestion that blood was all the way down the hall and in the kitchen, Mr Liu said that he was quite shocked when he saw the scene but did not pay very close to attention to such detail. Mr Liu agreed that he saw the “lady tenant” (Ms Qi) cleaning up after finding the complainant wounded.
Turning to earlier incidents between the applicant and the complainant, Mr Liu agreed that he accompanied the applicant and her son, Mr Zhang, to the police station following an incident on 23 January 2017. He recalled the applicant said she had an argument with the complainant who had hit her. When asked about noticing red marks and swelling on the side of the applicant’s face he responded that he had “some vague memories” but could not recall the detail.
When asked about his relationship with the applicant at the time she was arrested, Mr Liu said it was an ordinary landlord and tenant relationship and they were just friends. He agreed he visited the applicant in prison on one occasion but could not recall visiting on two other occasions. He denied being in regular contact with the applicant after she was given bail in late July 2017.
Mr Liu was directed to answer a series of questions to which a certificate under s 128 of the Evidence Act was attached regarding the evidence he gave. He denied asking the applicant for between $20,000 to $30,000 for all the help he had given the applicant and he denied that he said to the applicant, “[i]f you give me $30,000, I will help you when you go to court”.

Police evidence

DSC Muscat gave evidence, reading from his statement signed on 13 June 2017, that he arrived at the Auburn house on 4 June 2017 at 7:23 pm. After entering the front door of the house, he saw the complainant lying down on his right side in the hallway with his eyes closed. He saw a paper towel and an item of clothing which appeared to be blood-soaked. By reference to Exhibit B, being a plan of the Auburn house containing a hand drawn circle and a mark with the letter “P”, he agreed that the complainant was lying in the hallway in the place where there was a “circle”. He agreed that paragraph 8 of his statement recorded that there were apparent bloodstains on the wall in the hallway and throughout the floor in the kitchen area and in the main bathroom in the vanity sink, together with a blood-soaked cloth in the bath.
At the conclusion of the applicant’s police interview of the applicant at 1:15 am on 5 June 2017, DSC Muscat undertook a forensic procedure which was video recorded. He obtained a DNA sample from the applicant and a total of 16 forensic photographs of the applicant. He agreed that paragraph 17 of his statement recorded that he did not see any visible injuries on the applicant.
At about 4:10 am on the morning of 5 June 2017, DSC Muscat attended the crime scene and together with other police officers conducted a search of the Auburn house, which was video recorded (Ex 5). At about 4:36 am, Constable Kani Kinard announced that she had located items of interest in the kitchen pantry. DSC Muscat looked inside the kitchen pantry and saw three identical, blue-handled knives on the shelf, one of which had a clear plastic cover on the blade which appeared to have blood on it. Another of the three knives appeared to have bloodstains on the blade and blue handle. The blade of each knife measured about 12 cm in length. Photographs of the knives were obtained.
It was suggested to DSC Muscat in cross-examination that he made a note of his observation of bloodstains because it indicated where the complainant may have been bleeding. He answered, “[i]t’s possible, or something could have dripped in the kitchen area, with blood on it”. He could not recall if it was “quite a lot of blood”. He said it may have been droplets throughout, but he could not remember the volume of blood.
After confirming that the Auburn house was searched for items of interest, DSC Muscat was asked whether scissors would have been an item of interest to police. He responded that it depended “where the scissors would be and if there was blood on them”. He added that at the time of the search of the Auburn house he had already interviewed the applicant and she had made no mention of scissors that would make them an item of interest.
DSC Muscat gave evidence that he was told that the jury in the first trial was discharged on 6 August 2019 because there was an allegation that a text message had been received by the applicant from Mr Liu demanding money. There was no investigation of this allegation because Snr Sgt Fischer had told him that the applicant did not want to provide a statement to police and had deleted the text message.
Snr Sgt Fisher also gave evidence and was led, without objection, through his statement which he had provided on 30 June 2017. He said that upon entering the Auburn house with DSC Muscat and two other uniformed police officers he saw the complainant lying on his side down the hallway with the applicant kneeling beside him. In the bathroom he could see “blood, soaked clothes in the bathtub”. He declared the residence a crime scene and instructed officers to search and arrest the applicant. When shown the hand-drawn plan of the Auburn house, he agreed that the marking on Exhibit B showing a circle, a line and a “P” accorded approximately where he saw the complainant upon arrival.
Snr Sgt Fischer was present during the applicant’s police interview when she said that she did not know that the complainant had been stabbed, denied stabbing the complainant; said she did not know who else stabbed him and did not know anything about any pots being broken that night; agreed that she cleaned up blood from the floor and that she had a heated argument with the complainant; denied having a knife in her hand when they were arguing or going to get a knife (107-108); said that they were in the kitchen and the loungeroom during the argument, mostly in the kitchen; denied that anything was thrown in the kitchen during the argument; and denied that she was assaulted at all that night.
In cross-examination, Snr Sgt Fisher was asked about the blood found at the house. He said that the applicant had said in her police interview that she had cleaned the complainant’s face and the wound, and he thought that would explain the blood in the bathroom, the cloths in the bathtub and the blood droplets that went back towards the kitchen where the knife was later located. When asked about the broken pots in the kitchen, he agreed that he had asked the applicant about this in her interview, but he could not clearly remember much about that.
The Crown tendered a written statement by Crime Scene Officer Paul Weldon (Ex L), who attended the Auburn house at 11:15 pm on 4 June 2017. He obtained photographic evidence of the layout of the house, bloodstaining on the hallway wall from the front entry door, bloodstained clothes, and a red blood like staining on a green cloth found in the bathroom. He gave evidence of observing red blood-like stains along the hallway floor, two elliptical red-blood like stains on the hallway wall directly in front of the foyer entry, bloodstaining in the bathroom and bloodstaining on the floor in the kitchen.

Other prosecution evidence

The Crown tendered expert certificates from Dr Bhagvan, the surgeon who treated the complainant’s stab wound at Westmead Hospital between 4 and 6 June 2017 (Ex M), and Ms Emily Clarke concerning DNA testing on blood swabs from the hallway of the Auburn house and from the blade or handle of various knives seized from the house by police (Ex O).

The applicant’s evidence

In June 2017 the applicant was aged 47 years. Her evidence-in-chief was that the argument began in the kitchen when the children and the tenants were in their rooms. The complainant left and collected JP from his room and returned carrying JP. He said he was going to take her son away and when she tried to stop him, he sat down on the sofa in the loungeroom. JP was not crying when she first saw him. The applicant reached out trying to get JP away from the complainant on the sofa. The complainant whilst sitting on the sofa started punching the applicant in the head and reached out for the applicant’s throat using his left hand. There was some pushing and pulling and the complainant suddenly stood up from the sofa and reached out with his arm putting his hand in front of her, pointing to her. They both moved to the kitchen area. The applicant tried to get JP from the complainant, he did not let go of the child who was frozen and crying. The applicant said the complainant “kept punching me and hitting” as they both moved into kitchen.
After giving evidence that the complainant was holding JP with one arm wrapped around him, defence counsel asked the applicant where her son’s arms were. The applicant answered, “I’m not sure, he was holding my son very tightly”. When asked directly were her son’s arms around the complainant’s neck, the applicant answered, “[n]o. No.”.
The applicant said the argument continued in the kitchen, with further arguments about JP, while the complainant and the applicant stood at different sides of the kitchen. The complainant was holding JP and threw something at the applicant, who said she was calling the police. It was common ground at trial that it was never put to the complainant that he threw something. At that point, the complainant got angry and rushed towards the applicant and started to punch and hit the applicant, while JP was between them, and then started to choke the applicant.
The applicant gave the following evidence as to when she picked up the knife:

Q.    Then what happened?
A.    So he punched me, and I moved away. I moved to the side. I was going to use the phone to call police.
Q.    What happened next?
A.    He kept lunging at me.
Q.    Did you pick anything up at any time?
A.    As he was punching me, I grabbed a knife which was nearby. I – I felt I was being hit by something, but I’m not sure what I was hit with.
Q.    Now, you said the knife was nearby. Do you recall where the knife was?
A.    The – the – the knife was on the – the bench top. I was going to – I was going to take the knife with me when I go to work – when I went – when I was going to go to work.

When asked what caused her to use the knife, the applicant said that the complainant was punching her head and kept saying “[d]rop dead. You go die”. At the time she used the knife, the complainant was “punching my head, and he was also choking – choking me with his hand”, “he placed his hand on my throat, and he was squeezing his fingers”, “I couldn’t breathe”. The applicant’s evidence continued:

Q.   After you picked up the knife, did you notice anything about your husband?
A.   So he was – he – was choking me. I couldn’t breathe. I couldn’t speak out. And because at the beginning I was telling him to put the – put the – put the little one down. But I couldn’t speak out at this point. And he was pushing against – against – against a wall, I believe.
Q.   You picked up the knife, and you did something with the knife?
A.   Like this, from the side.

The applicant said that she used the knife in her right hand when the complainant still had his hand on her throat and was squeezing his fingers. After the applicant stabbed the complainant, he put JP down on the ground and said that “… it hurts”. She saw blood on the blade of the knife which she put back on the benchtop. The complainant “walked a couple of steps” and fell to the ground. The applicant grabbed a piece of cloth and attended to the wound whilst the complainant was on the ground. The applicant said she believed the knife had a cover on it. This was consistent with the complainant’s evidence in his DVEC (see [39] above).
Defence counsel asked the applicant to mark the floor plan of the Auburn house (Ex B) with a blue cross where the complainant was lying down. She marked a location outside the door to her bedroom. When asked to mark with a circle where she stabbed the complainant, she marked a location in the hallway, although close to the kitchen; this became Exhibit B1. In the absence of the witness, defence counsel suggested that the applicant’s evidence was incorrect, and counsel believed that the applicant had misunderstood the question.
When asked by defence counsel about the lies and vague answers she gave in her police interview, the applicant said that at the time she was scared as to what would happen to her sons and she did not want to think about what had just happened.
In cross-examination, the applicant said that whilst in the loungeroom the complainant was hitting her in the arms, neck, and head. When challenged as to how it was that the complainant was both choking and pointing to the applicant with the same hand when in the loungeroom, the applicant said, “he was pointing at me and choking me”, and later said, “[h]e wasn’t pointing at me. Maybe – … Maybe I – maybe it was misunderstood”.
The applicant said that when they got into the kitchen, the complainant momentarily released his hand from her throat and walked to the other side of the kitchen. At that point she sent a text message to Mr Liu telling him that he needed to move his car because she was going to work. (It was not put to Mr Liu by defence counsel that the applicant had sent him a text message to this effect.) The applicant agreed that she did not call out for help from any of Mr Liu, her son, Mr Zhang, or Ms Qi, who were each in their rooms. There was a point where the complainant had stopped and she texted Mr Liu telling him that she needed him to move his car because she had to go to work. When asked why she did not call out to her adult son, the applicant said that it happened very quickly, and the complainant “lunged at me”.
When taken to her record of interview, the applicant agreed that her statement to police that she did not stab the complainant was untrue; she accepted that she told police that she did not know the complainant had been stabbed, saying that she was sorry as a lot of things happened that night and she could not stop thinking about what happened and “about my child”. When it was put to her that she told police she had not been assaulted “at all tonight” and that was because she had not been assaulted, the applicant disagreed saying that she was not lying about what occurred.
The applicant denied that she used a pair of scissors to threaten the complainant when they were in the living room. She adhered to her evidence that the complainant put his hand around her throat and was hitting her when he was also holding JP. She said that she kept telling the complainant to put the baby down, but he wouldn’t. She denied that the complainant tried to ignore and leave her and moved down the hallway away from the kitchen. She said that she was standing near the entrance to the kitchen next to the table or a bench, the complainant was holding JP and he wanted to leave and take JP with him, and she tried to stop him because he had been drinking. She denied that the complainant moved away from the kitchen and headed towards the bathroom and that she followed him with the knife.
The cross-examination turned to the location where the stabbing occurred. When it was put to the applicant that the complainant was lying on the floor in the hallway near to where she stabbed him and that took place in the hallway, not the kitchen, the applicant responded, “I’m not sure”. It was then put to the applicant that she stabbed the complainant in the hallway, and she answered, “[t]hat’s about right”. When it was suggested to the applicant that she had made up the whole story of stabbing the complainant in the kitchen defending herself, the applicant answered:

Well, in the hallway, near the … table, near where the table was against the wall. … I don’t remember where happened – where it happened.

When asked about marking the floorplan (Ex B1) the previous day with a blue pen and drawing a circle around where she said she was standing when she stabbed the complainant, the applicant said, “I don’t remember where happened – where it happened”. Finally, the applicant said, “I, myself, don’t even know where I stabbed my husband”. Defence counsel noted for the record that at this point the applicant was very upset and started to cry.
The applicant denied that she was angry with the complainant on the night of the incident, though she suspected he was having an affair, he was not a good father and he spent very little time with his own family. She agreed that the day before the stabbing the complainant had only paid $700 to the mortgage and that was one of the reasons they were arguing. She also agreed that she did not show the knife to the complainant to try to make him stop, saying that she did not do so because, “I wouldn’t … display a knife in front of my son”.
In re-examination, the applicant agreed that she did not mean to hurt the complainant that night. She agreed that she said “I’m sorry. I’m sorry”, when tending to his wound. She confirmed that the table she was referring to in her evidence when asked where the stabbing occurred was in the bottom of the photo of the kitchen which became Ex 4.

Evidence of prior incidents

The applicant gave evidence of six prior incidents when the complainant physically assaulted her. Police had attended the Auburn house on four occasions, which were the subject of COPS reports. The complainant agreed that police had come to the Auburn house about three or four times because of complaints about raised voices. He described the arguments as “basically just oral arguments, nothing serious”. Addressing the incidents chronologically, the evidence of the applicant and the complainant, and Mr Zhang and Mr Liu was as follows.

11 November 2013

On 11 November 2013 the applicant and the complainant had an argument in the carpark of Auburn Shopping Centre following her querying the complainant about a telephone bill; she had suggested to the complainant that he had been telephoning another female person. A passenger in another car saw the incident and contacted police.
The applicant’s evidence was that when sitting in the car the complainant started hitting her, that he was driving and “he punched me on my face” and “he kept hitting me on my face”. The applicant received a phone call from her son who told her that the police were at their home. The complainant told her not to say anything to the police when they got home. When she got home the police were there, but she could not recall speaking to them.
In cross-examination, when it was put to the applicant that she told police that there was nothing wrong and there was no assault, she responded, “I don’t – I don’t remember”. When pressed that it was not true that the complainant hit her whilst driving the car, the applicant disagreed and said this was the truth.
The complainant denied hitting the applicant while parked in a car at Auburn Centro parking centre. He also denied that his stepson, Mr Zhang, called him and told him to come home because police were looking for him. His evidence was that he reported the argument to police and then they did not turn up and he left and went out. The complainant agreed that police had come to the Auburn house four times and his stepson had translated for the police. He denied telling his stepson to tell the police that nothing happened, he said “[w]e – we just told the truth”.
The COPS entry for 11 November 2013 records that police spoke with the applicant and the complainant independently of each other with the assistance of a telephone interpreter; neither party disclosed fears for their safety; the argument became heated due to the complainant’s gambling habits; and the applicant stated that she is an angry person and was very angry. Both parties stated that there was no assault and refused to supply police with a statement. The witness gave no further details than he saw only what looked to be a male and female fighting.

14 September 2014

The applicant and the complainant were in their car at the front of their house in Auburn when an argument began. According to the applicant, after the complainant had come home from work and had a shower, he received a phone call and indicated that he wanted to go out. She tried to stop him, but the complainant ignored her and went to the car. The applicant followed and got into the driver’s seat and the complainant started punching her while she was sitting in the car. She said she was holding onto the steering wheel and the complainant “started hitting me – hitting my hands”. She said that the complainant was hitting her on her head, face, and arms, and that “he was still hitting me when I actually saw the police vehicle arriving”. When the police attended the Auburn house the applicant told police there was a verbal argument however it never became physical. She said she didn’t say anything because the complainant told her not to say anything happened.
In cross-examination, when it was put to the applicant that she told police that it was a verbal argument and never became physical (as recorded in the COPS entry), she said that was because she was worried that the police might take her husband away. When asked would not that have been of assistance to her if the complainant had been assaulting her, the applicant said that “[w]ell, he is the father of my son, after all”.
The complainant agreed that they argued with “raised voice” during the argument in the car about his gambling and taking money from the mortgage. He denied that whilst driving before parking, he punched the applicant in the head three time. In response to whether he told the applicant to tell the police nothing happened, the complainant answered, “[w]e basically had nothing. We only argued, and someone else reported to the police” and “we argued at home just like this, verbally”.
The COPS entry for 14 September 2014 records that when police attended the Auburn house the applicant stated that there had been a verbal argument, however it never became physical. The entry also recorded that the applicant did not have any injuries to her person, and the informant who had contacted police stated that he thought the applicant was being physically assaulted, however, he could not be sure.

2016

The applicant gave evidence of an incident, not reported to police, which she said was witnessed by a then tenant of the Auburn house known as Ms Wang. The applicant said that the complainant hit her and punched her when she was in the hallway of the house. She said it was rather serious, some heavy punches, and one of the tenants saw what happened. Ms Wang did not attend the trial to corroborate the applicant’s evidence.
The complainant was not specifically cross-examined by defence counsel about this alleged incident.

Early 2017

The applicant gave evidence of receiving a phone call from an employee at Westpac in early 2017 informing her that the mortgage repayments were in arrears. The complainant was standing close to her and listening to the conversation. The applicant said, “he punched me on my face, on my hand where I was – which I was holding the phone”. She told the complainant to “stop doing that to me”, and the female person on the telephone call suggested that she call the police. The complainant responded, “[d]on’t call the police”, and the applicant told the person she was speaking to on the telephone, “[t]hat’s alright, nothing happened”. The applicant said she did this because the complainant said, “[d]on’t call the police”.
The complainant gave evidence that he did not know about a lady from the bank telephoning the applicant about arrears on the mortgage. He denied getting angry and punching the applicant once in the head while she was on the phone to the lady or remembering the woman from the bank telling the applicant to call the police. He said, “we just verbally argued”.

23 January 2017

Following an incident at the Auburn house on 23 January 2017, Mr Liu and Mr Zhang took the applicant to Auburn police station on 24 January 2017 to make a report. The applicant gave evidence that when she saw Mr Liu the “next morning”, he asked what happened as she had “a bruise on my face and on my arm”. She told him that they were having an argument about the complainant not looking after the family, and that it became physical. She said it was Mr Liu’s idea to go to the police.
The Crown indicated to the trial judge that it would not cross-examine the applicant about this incident on the basis that it objected to this evidence being led and the matter had been determined in the Local Court.
As noted, Mr Zhang gave evidence that there had been an argument the night before, which resulted in an “injury on my mum”: see at [59] above. Mr Liu gave evidence that the applicant told her the complainant had hit her but had only “vague memories” and couldn’t recall the detail of any red marks and swelling on the side of the applicant’s face: see at [66] above.
The complainant denied hitting the applicant. He said, “we were pushing each other”. He agreed that he attended the police station on 24 January 2017 following receipt of a text message from police. He also agreed he saw red marks on the applicant’s face that day. He said he did not know what had happened and that he did not hit the applicant.
The COPS entry dated 24 January 2017 records an argument about mortgage repayments and gambling, that the complainant became aggressive towards the applicant and punched her with his right clenched fist towards the left side of the face, connecting with the cheekbone. The complainant was charged with common assault. The charge was dismissed following a hearing at Burwood Local Court on 10 March 2017 at which the complainant represented himself and cross-examined the applicant. An apprehended violence order was made against the complainant to protect the applicant.

19 February 2017

The applicant gave evidence of an argument with the complainant in February 2017, which escalated to the point of her being assaulted by the complainant with a closed fist, three or four times. She said police attended the Auburn house in response to a call by someone; she did not remember who called the police. The applicant said that the complainant told her son, Mr Zhang, to tell the police that nothing happened.
When it was put to the applicant in cross-examination that Mr Zhang was in the room at the time of this argument and he called police because he was concerned that neighbours might hear it, the applicant said, “I have no idea about this matter”.
The complainant did not recall the incident, incorrectly referred to by defence counsel as occurring on “19 January 2017”, when the stepson called the police who attended the Auburn house “that morning”. When it was put to the complainant that he told Mr Zhang to tell the police nothing had happened when they attended the Auburn home, the complainant answered, “[w]e, basically, had no problem. We only had verbal arguments. We tell them the truth”.
The COPS entry for 19 February 2017 described the complainant as the “victim”, the applicant as the “person of interest”, and Mr Zhang as the “witness”. The entry records that the applicant had approached the complainant at home and demanded that he pay child support, which he refused, causing a verbal argument. The argument became loud causing Mr Zhang to contact police as a precautionary measure as he did not want the neighbours to hear the commotion. On arrival, police spoke to Mr Zhang as neither the applicant nor the complainant spoke English. Both confirmed the same version, that no threat / physical altercation took place, which was also corroborated with Mr Zhang. The COPS entry recorded that no further police action was required.

Dr Ashkar’s evidence

The applicant tendered a report from Dr Ashkar dated 23 May 2019. He had interviewed the applicant on 18 January 2019 and recorded the applicant giving a history estimating up to 20 occasions of physical assault by the complainant, sometimes to the head causing her to become dazed and confused, but with no loss of consciousness and no medical intervention. Dr Ashkar agreed in cross-examination that the applicant was unable to give any further specific details.
Dr Ashkar assessed the applicant’s intellectual functioning in the low range, specifically the 10^th percentile. He expressed the opinion that there is no suggestion from the applicant’s account of the abuse or from neuropsychological testing that the applicant suffered brain damage or permanent cognitive impairment from the abuse, however she may have been concussed from the repeated blows to the head at the time of the alleged offence.
In response to specific questions, Dr Ashkar gave the following answers (emphasis in original):

5. What are the psychological consequences faced by a person such as Ms Zheng who had been subjected to prolonged and repeated physical and/or verbal abuse from Mr Pan over many years?
The individual response to prolonged and repeated abuse is idiosyncratic and variable but commonly includes learned helplessness (ie, a response to having been exposed to painful stimuli over which one has no control and finding that no avenue readily exists for escape), lowered self-esteem, impaired functioning (including an inability to engage in problem-solving and planned behaviour), fear and terror, anger and rage, and hyper-vigilance to danger.

…
7. Is it likely that Ms Zheng believed on reasonable grounds that there was no other way to preserve herself or her son from death or serious bodily injury other than by acting the way she did by stabbing Mr Pan?
Given her mental state at the time of the alleged offence, it is possible that Ms Zheng believed there was no other way to preserve herself or her son from death or serious bodily injury other than acting the way she did by stabbing Mr Pan (and I note from the draft of the Crown Statement of Facts that Mr Pan threatened to kill her at that time).

8. Could Ms Zheng’s cognitive functioning and mental state at the time of her interview with the police account for why she did not mention her history of prolonged and repeated physical and/or verbal abuse from Mr Pan?
Ms Zheng’s thinking and judgement were likely impaired by her heightened emotional state (and possibly shock) during police questioning and this may very well account for her lack of disclosure of her history of abuse to the police at that time. Cultural factors (e.g. shame) may also explain her lack of disclosure of her history of abuse at that time.

In his oral evidence-in-chief, Dr Ashkar was asked of his understanding of the expression “battered wife syndrome”, which he described as the constellation of symptoms that a person may develop if they have been exposed to repeated physical, verbal, emotional and psychological abuse within a relationship. He was not asked to express any opinion about the applicant in this regard.

The trial judge’s findings and conclusions

No complaint is made in relation to the directions of law which the trial judge gave herself, including the Liberato direction (Liberato v The Queen (1985) 159 CLR 507 at 515; [1985] HCA 66).
Addressing the tendency evidence, the trial judge said:

I should bear in mind that this is just one part of the evidence relied upon by the accused. I should give it what weight I think it deserves in the context of all of the evidence before me. Subject to my other directions, particularly those as to lies as to credit and context, the evidence of other acts must not be used in any other way. That is not the purpose of the evidence being placed before me and I must not reason in that way. I cannot use it in any way against the complainant, unless I accept the accused’s argument that it discloses a tendency and therefore makes it more likely that the accused did not commit the offences charged against her. Even if I accept that the complainant has a tendency to act in a particular way namely: one, to physically and mentally abuse the accused; two, to demand that the accused deny that any abuse had occurred when questioned by police; three, to make threats to the accused that if she reported his abuse to the police such threats would include making sure that she would lose custody of their son or that he would take her back to China, I need to consider whether or not he acted in a particular way on the evening of 4 June 2017.

The trial judge accepted there may well have been prior arguments between the complainant and the applicant but did not accept the degree of physicality contended by the defence, giving the following reasons for not drawing the conclusion from the objective evidence that the complainant had a tendency to act in the way the defence case contended:

The Crown submitted at its highest, so far as the Crown can discern from the evidence the defence rely on, the following incidents in support of the asserted tendencies. The Crown then goes to the COPS entries and the two other incidents. I have referred to these in the chronology, but I will repeat them.

After summarising the COPS entries, the trial judge continued:

As was clear from the evidence of Mr Pan, he rejected each allegation that was put to him about each of these asserted tendencies. The fact that police have attended on occasions was not the subject of dispute, however the allegations that were levelled at Mr Pan in cross-examination about what he did on each of these occasions was disputed and he rejected them. When the accused was cross-examined about these occasions, she was cross-examined about the fact that the records of police do not indicate that she had been assaulted on these occasions. The tendency evidence is disputed and there is little support for it. There are no medical records; the police were not informed of the detailed allegations of Mr Pan doing anything like the accused gave evidence of, except on one occasion when it went to court. I would not accept that the evidence as it emerged in the trial supports the asserted tendencies in the defence notice. Certainly, there was no evidence from the accused of the alleged 20 occasions that she told Dr Ashkar about.
…
In her submissions, Ms Walsh, with transcript references, said the evidence of the complainant, Mr Pan, [that] the arguments between him and the accused were only ever verbal and never physical was implausible and should not be accepted. The evidence of Jia Hao Zheng of Pan repeatedly telling him to tell the police that nothing happened, and Zheng hearing Pan tell the accused that nothing happened must be accepted as the Crown never challenged Zheng about this evidence as required by Browne v Dunn. The evidence of Jia Hao Zheng that sometimes he saw what had happened and sometimes he did not must be accepted as he was never challenged as to this evidence, as required by Browne v Dunn, by the Crown and having seen his father Pan assault the accused. I accept there may well have been prior arguments, but I do not accept the degree of physicality contended by the defence.
The Crown, as I said, notes the entries; what is noted is six alleged occasions between 11 November 2013 and 19 February 2017, a period of in the order of three years and three months. There is no indication of when these other matters raised by the defence took place, although of course they would have had to have been before 19 February 2017. I am not satisfied that he had a tendency to physically and mentally abuse the accused, nor to demand that the accused deny that any abuse had occurred when questioned by police or to make threats to the accused that if she reported his abuse to the police such threats would include making sure that she would lose custody of their son or that he would take her son back to China. There were, clearly, arguments, heated arguments. I am prepared to accept that her ex-husband said to deny to the police that any abuse had occurred or to make threats to the accused that if she reported, what I do not see as abuse, but the heated verbal arguments, that she would lose custody of their son or that he would take her son back to China. The difficulty is that there is absolutely no precision as to when these events occurred. Having come to that view I cannot, from what the objective evidence is, draw the conclusion that the complainant being the victim had a tendency to act in that way. (Emphasis added.)

Turning to the evidence of Dr Ashkar, the trial judge explained her approach to conflicting facts or assumptions underlying his opinion:

If the opinion is based upon facts which I am satisfied have been proved or assumptions that I am satisfied are valid, then it is a matter for me to consider whether the opinion is based upon those facts or assumptions is correct. On the other hand, if I decide that the facts have not been proven or the assumptions are not valid, then any opinion based upon them is of no assistance because it has no foundation. If that is the case the opinion should be disregarded.

Referring to the Crown submission that, at best, the applicant described five or six occasions of being assaulted by the complainant, four relating to the COPS entries and the occasions of the applicant speaking to the bank officer (at Westpac) and the occasion when an earlier tenant, Ms Wang, apparently saw something (in 2016), the trial judge found:

The accused was not able to provide specific details of the occasions when she was assaulted in the history recounted to Dr Ashkar. Dr Ashkar reported no evidence of brain injuries. Dr Ashkar asserted cultural reasons for particular conclusions he draws and acknowledged that it was not scientifically based, but rather anecdotally based.

The trial judge rejected the defence submission that the applicant was suffering “Battered Woman Syndrome”, finding that Dr Ashkar did not make a conclusion or a finding expressing his view that the applicant was suffering from any kind of clinical or psychological condition known as Battered Woman Syndrome. The judge found that when considering the applicant’s demeanour during her recorded interview with police and when giving evidence, Dr Ashkar’s evidence was of “minimal weight”, giving the following reasons:

Returning to the evidence of Dr Ashkar, Ms Walsh emphasised the importance of his evidence and its importance when considering the demeanour of the accused during the ERISP and whilst giving her evidence. I have considered the submissions of both sides of the bar table in respect of Dr Ashkar that I have considered earlier in this judgment. I do not completely disregard his opinion, bearing in mind what I have just said and have said earlier about what the defence contend its relevance is. I, however, give it minimal weight.

After giving herself directions at law concerning “self-defence” as to which no complaint is made, the trial judge summarised the Crown and defence cases, including the conflicting evidence of the complainant that he was holding JP with both arms, whereas the defence case was that the complainant was holding JP by one arm, and he was using the other arm and hand to punch the applicant or strike the applicant and ultimately, to grab her by the throat, and just before the stabbing she was being held round the neck and was being choked.
The trial judge’s principal factual findings, leading to the finding that the applicant was guilty of the alternative count 2, are encapsulated in her reasons for accepting the complainant’s evidence beyond reasonable doubt and rejecting the applicant’s evidence beyond reasonable doubt. With respect to the complainant’s evidence, the trial judge found:

Applying all of these directions and giving full consideration to the submissions and to the evidence I accept the account of Mr Pan beyond reasonable doubt. I note on the account given by Mr Pan that there was no act of self-defence on the part of the accused in relation to herself or in relation to her son JP. This I accept beyond reasonable doubt. The stabbing took place between about 7 and 7.30 or thereabouts on 4 June 2017 and he was interviewed on 7 June 2017 in the hospital at Westmead, the interview finishing at about 11.30, not too long after the stabbing.

Whilst there are some similarities to the applicant’s subjective circumstances, as the offender in Geebung had prior good character, a lack of drug and alcohol issues, good prospects of rehabilitation and had been subject to onerous bail conditions for nearly two years (including reporting and curfew as well as conditions that she could no longer visit her father or traditional lands of her peoples during that time), there are differences in that the applicant’s bail conditions had been in place for longer in relation to the applicant, she was older than the offender in Geebung and not of Aboriginal background. Other notable differences were that there was no finding of any remorseful contrition in relation to the offender in Geebung, whereas the applicant was immediately remorseful.
While the lower head sentence in Geebung is not markedly different from the applicant’s head sentence, the offending in Geebung had greater seriousness than the present offending, and the result in Geebung does not support the Crown’s submission that the present sentence does not lie outside the permissible range of sentence that could be legitimately imposed.

Whether the sentence imposed is unreasonable or plainly unjust

The claim of manifest excess is not available because this Court is of the view that it would have given less weight to general deterrence and greater weight to the applicant’s favourable subjective case: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]. Nevertheless, I am persuaded that in the particular circumstances of this offending, and this offender, the sentence was manifestly excessive. The chief considerations which point to manifest excess are the reasons and circumstances of the offending, the role of general deterrence in this case, and the applicant’s compelling subjective case.
As to the first matter, it bears repeating that her Honour found “it is more likely than not” that the explanation for the applicant’s offending was that the applicant was highly stressed by marital discord / conflict, including issues of emotional abuse, which her Honour found was emotional abuse and the other matters stated in the passage of her Honour’s reasons set out at [241] above.
Further, the offending was not premeditated or planned, it followed a prolonged argument about the mortgage and child custody issues, the applicant thought there was a cover on the small kitchen knife, the injury was a single small wound, and there was immediate remorse once the applicant realised that she had injured the complainant.
As to the second matter, general deterrence will usually be of significance where the offending involves the use of a knife and is a domestic violence offence. However, given the finding by her Honour that the applicant’s mental condition at the time of the offending was a subjective feature to be taken into account, her low intellectual functioning and her psychological diagnosis of now suffering from a major depressive disorder, this was a case in which general deterrence had a more limited role to play in the sentencing process because such an offender is not an appropriate medium for making an example to others.
As to the third matter, accepting that a strong subjective case cannot result in the imposition of a sentence which is not properly reflective of, or which is disproportionate to, the objective seriousness of the offending (Clarke-Jeffries v R [2019] NSWCCA 56 at [45] (Bellew J, Simpson AJA and Campbell J agreeing), citing R v Dodd (1991) 57 A Crim R 349), the applicant’s compelling subjective case called for not inconsiderable mitigation.
In my view, ground 3 has been made out.

Resentence

In resentencing the applicant, I have adopted and acted upon the sentencing judge’s uncontested factual findings and assessments: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9]; Turnbull v R [2019] NSWCCA 97 at [44]-[46] (Simpson AJA, Ierace J agreeing, Wilson J not deciding); RO v R [2019] NSWCCA 183 at [82] (Beech-Jones J, Bathurst CJ and N Adams J agreeing). Those findings and assessments include the objective seriousness of the offending, and the applicant’s moral culpability, remorse and contrition, prospects of rehabilitation and special circumstances.
My assessment coincides with her Honour’s implicit finding that the applicant is not an appropriate candidate for specific deterrence, given her low intellectual functioning and her major depressive disorder.
The applicant did not rely on any additional evidence on resentence, other than the inference to be drawn from her compliance with her onerous conditions of bail, since the sentencing hearing in May 2021.
Turning to the sequence of determinations to be made by a sentencing court under the Sentencing Act, as Gageler J recently observed in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 at [30]:

The Court of Criminal Appeal of the Supreme Court of New South Wales has held, repeatedly and correctly, that whether an offender is to be sentenced to a term of imprisonment, and (if so) for what term, are questions to be asked and answered within the scheme of the Sentencing Procedure Act before any question can arise as to whether or not to make an ICO and (if so) on what conditions. (Citations omitted)

As to the question of whether the threshold in s 5(1) of the Sentencing Act is met, I accept her Honour’s unchallenged finding that no penalty other than imprisonment is appropriate. The applicant did not argue to the contrary.
It is next necessary to determine the appropriate term of the sentence of imprisonment and, where the issue arises, consideration of whether or not to make an ICO. An ICO is a sentence of imprisonment for the purpose of s 5(1) of the Sentencing Act that is directed, under s 7(1), to be served by way of intensive correction in the community rather than full-time detention. The determination of the appropriate term of the sentence of imprisonment to be imposed is to be made without regard to, and cannot be adjusted to reflect, the manner in which the sentence is to be served: R v Zamagias [2002] NSWCCA 17 at [26]; Wany v R (2020) 103 NSWLR 620; [2020] NSWCA 318 at [20].
The applicant submitted that the Court should place significant weight on the mitigating factors which would lead to a lesser sentence than that imposed by her Honour, and that a sentence of two years or less is appropriate. The factors relied upon by the applicant are that there was no premeditation or planning, the applicant thought there was a cover on the knife, the offending occurred in circumstances where the applicant was highly stressed by marital discord / conflict including emotional abuse, and the applicant’s subjective features, specifically her low intellectual functioning and major depressive disorder.
As noted, the applicant has a particularly strong subjective case. She has no prior criminal history. Her Honour found that the applicant is hardworking and a good mother, that the applicant showed immediate remorse after the stabbing, the offence appeared to be out of character, and she has good prospects of rehabilitation. Her Honour also found that as a result of her conduct the applicant lost the Auburn house. As indicated, the applicant has complied with onerous bail conditions since her release on bail in August 2017, following time spent in custody of nearly two months from 5 June 2017 to 1 August 2017.
When weighing the objective gravity of the offending and the need for general deterrence and the subjective circumstances of the applicant, I am of the view that in this case, and for this offender, the weight to be given to general deterrence should be moderated in favour of rehabilitation, given the applicant’s strong subjective case. I consider that a sentence of imprisonment for two years is appropriate in all the circumstances of this offender.

Whether an ICO should be made

The applicant submitted that this Court should make a direction under s 7 of the Sentencing Act that the sentence of imprisonment be served by way of an ICO. This mode of sentence is available where the sentence of imprisonment in respect of a single offence does not exceed two years: Sentencing Act, s 68(1).
The Court is required by s 66(1) of the Sentencing Act to have regard to community safety as the “paramount consideration” when deciding whether to make an ICO in relation to an offender, and by s 66(2) is obliged to assess whether making an ICO or serving the sentence by way of fulltime detention is more likely to address the offender’s risk of reoffending. By s 66(3) the Court is also required to consider the purposes of sentencing under s 3A, any common law sentencing principles, and may consider any other matters that the Court thinks relevant.
There is a prohibition on the power to make an ICO in respect of, relevantly, domestic violence offences (s 4B), which includes reckless wounding in the context of this case. This is addressed separately below.
In R v Pullen [2018] NSWCCA 264 at [84], Harrison J (Johnson and Schmidt JJ agreeing), said of the concept of “community safety” in s 66:

The concept of “community safety” as it is used in the Act is broad. As s 66(2) makes plain, community safety is not achieved simply by incarcerating someone. It recognises that in many cases, incarceration may have the opposite effect. It requires the Court to consider whether an ICO or a full-time custodial sentence is more likely to address the offender’s risk of re-offending. The concept of community safety as it is used in the Act is therefore inextricably linked with considerations of rehabilitation.

Recently, in Stanley, the joint judgment held that the failure to consider the paramount consideration of community safety in s 66(1), by reference to the assessment required by s 66(2), constituted jurisdictional error: Stanley at [88], [115] (Gordon, Edelman, Steward and Gleeson JJ); cf in dissent Kiefel CJ at [12], Gageler J at [20]-[33] and Jagot J at [240]-[241]. Addressing the construction of the power to make an ICO, the joint judgment said at [72]-[77]:

[72] There was no dispute before this Court that s 66 imposes specific mandatory considerations upon the decision maker to make, or refuse to make, an ICO. Section 66(1) requires the court to treat community safety as the "paramount consideration". In the context of s 66(2), community safety principally concerns the possible harms to the community that might occur in the future from the risk of reoffending by the offender. The issue is not merely the offender's risk of reoffending, but the narrower risk of reoffending in a manner that may adversely affect community safety.
[73] The identification of community safety in s 66(1) as the "paramount" consideration also indicates that s 66 is concerned with an aspect of the sentencing task that requires the sentencing court to have a particular and different focus at the third stage of the three-step process described earlier. When the court is deciding the discrete question whether or not to make an ICO, community safety is the consideration to which other considerations are to be subordinated, although other considerations must or may be taken into account as prescribed by s 66(3).
[74] Section 66(2) explains how the sentencing court must engage with the paramount consideration of community safety. For the purpose of addressing community safety, s 66(2) requires the sentencing court to undertake a task of assessing the possible impacts of an ICO or full-time detention on the offender's risk of reoffending. Section 66(2) gives effect to Parliament's recognition that, in some cases, community safety will be better promoted by a term of imprisonment served in the community than by full-time detention. Section 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety. Thus, s 66(2) requires the sentencing court to look forward to the future possible impacts of the sentence of imprisonment, depending upon whether the sentence is served by way of full-time detention or by way of intensive correction in the community.
[75] The assessment required by s 66(2) is not determinative of whether an ICO may or should be made. To the contrary, as is plain from s 66(3), the assessment is required for the purpose of addressing community safety as the paramount, but not the sole, consideration in deciding whether or not to make an ICO. Thus, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). In that respect, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending.
[76] That said, community safety will usually have a decisive effect on the decision to make, or refuse to make, an ICO, unless the relevant evidence is inconclusive. There may be cases where a court cannot be satisfied whether serving a sentence by way of intensive correction in the community or serving a sentence in full-time custody would be more likely to address reoffending. In those cases, other factors will assume significance and will be determinative. On the other hand, there will be cases where a court concludes that serving the sentence by way of intensive correction in the community is more likely to address reoffending.
[77] While aspects of community safety underpin some of the general purposes of sentencing, such as specific and general deterrence and protection of the community from the offender, those aspects will have been considered in deciding whether to impose a sentence of imprisonment (ie, before considering an ICO). Community safety is required to be considered again and in a different manner under s 66 when considering whether to make an ICO. At this third step, community safety in s 66(1) is given its principal content by s 66(2), namely, the safety of the community from harms that might result if the offender reoffends, whether while serving the term of imprisonment that has been imposed or after serving that term of imprisonment. (Citations omitted.)

Five points emerge from the joint judgment in Stanley.
First, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). The issue is not merely the offender’s risk of reoffending, but the narrower risk of reoffending in a manner that may affect community safety: at [72], [75].
Second, s 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety: at [74].
Third, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending: at [75].
Fourth, the consideration of community safety required by s 66(2) is to be undertaken in a forward-looking manner having regard to the offender’s risk of reoffending: at [74].
Fifth, while community safety is not the sole consideration in the decision to make, or refuse to make, an ICO, it will usually have a decisive effect unless the evidence is inconclusive: at [76].

Assessment of community safety in this case

The evidence at the sentencing hearing included an assessment report prepared by Corrective Services NSW dated 8 March 2021. The report included assessments that the applicant was a “Medium-Low” risk of reoffending and was suitable to undertake community service work. The report outlined a supervision plan which would be implemented by Community Corrections if the Court makes an ICO which involved:

regular third-party checks with family, husband (complainant) and police (DVLO) for monitoring and compliance.

referral to a GP for initial mental health assessment and referral to a psychologist to address [any] ongoing concerns related to anger and violence.

referral to a counsellor to address unresolved anger and emotional regulation issues.

Cognitive Behavioural Therapy based interventions implemented through reporting interviews to help manage stress and anger, conflict resolution and to avoid impulsive decision making.

The nature and content of the conditions that might be imposed by an ICO which are relevant in measuring the risk of reoffending include the two standard conditions of an ICO under s 73(2) of the Sentencing Act, namely:

The offender must not commit any offence.

The offender must submit to supervision by a community corrections officer.

Section 73A(1)–(1A) of the Sentencing Act requires the Court to impose at least one additional condition unless there are exceptional circumstances. The additional conditions under s 73A(2) include home detention, electronic monitoring, specific curfew, community service, rehabilitation or treatment, abstaining from alcohol or drugs, a non-association and place restrictions.
In the remarks on sentence, her Honour noted that following the variation in the applicant’s bail conditions, the applicant and the complainant have corresponded by way of text message since October 2020 in relation to the arrangements permitting contact with the younger son, JP, on a weekly basis. The Crown did not submit that there had been any difficulty with these arrangements. Given these circumstances and the elements of the supervision plan proposed by Community Corrections, the applicant’s compliance with her onerous bail conditions over a lengthy period exceeding four years, that the offending was not alcohol or drugs related, and the applicant’s low intellectual functioning and major depressive disorder, I am satisfied that there are exceptional circumstances not to require any additional condition under s 73A(2) of the Sentencing Act if the sentence was directed to be served by way of an ICO.
Applying the forward-looking approach referred to in the joint judgment in Stanley to the evaluative exercise of whether community safety as the paramount consideration, together with the subordinate considerations in s 66(3), warrant full-time detention or an ICO, I am satisfied that the risk of the applicant reoffending in a manner that may affect community safety would be better reduced by an ICO than full-time imprisonment for the following reasons:

the assessment report assessed the applicant’s risk of reoffending as “Medium-Low”;

her Honour found that the applicant was not a violent or anti-social person by nature and assessed the applicant’s prospects of rehabilitation as good;

the applicant has complied with her onerous bail conditions over four years, including the non-contact condition with the complainant; and

the standard supervision condition of an ICO (s 72(2)(a)) is more likely to promote the applicant’s rehabilitation, given her major depressive disorder.

Domestic violence offence

Since the applicant’s offending is a domestic violence offence, ss 4A and 4B of the Sentencing Act also apply. These provisions are set out at [252] above.
As to s 4A, the applicant did not contend for a different sentencing option than a supervised order, relevantly an ICO.
As to s 4B, I am satisfied that the complainant will be adequately protected by an ICO because (a) the applicant and the complainant ceased to reside in the same house after the offending in June 2017, and (b) the applicant has complied with her onerous bail conditions for a period of over four years, including a non-contact condition with respect to the complainant.
As to the safety of persons with whom the applicant is likely to reside, at the time of sentence the applicant was living in shared accommodation at a specified address and proposed to move to new premises, with her older son Mr Zhang. I am satisfied that there is no issue as to the safety of the older son, Mr Zhang, with whom the applicant resumed contact in August 2020 following a variation of the non-contact bail conditions which had prohibited her having contact with Mr Zhang, who was a prosecution witness.

Accepting that the imposition of an ICO represents some degree of leniency, I am satisfied that in this case it still incorporates a substantial degree of punishment having regard to the length of the ICO and the obligations which attach to the mandatory conditions in s 73(2) of the Sentencing Act, as prescribed by the regulations, specifically the supervision condition under reg 187 of the Crimes (Administration of Sentences) Regulation 2014 (NSW).
In my view, the sentence of imprisonment for two years should be served by way of an ICO for the period specified below, which should commence on the date of this judgment. The ICO will be subject to the two standard conditions under s 73(2) of the Sentencing Act:

The offender must not commit any offence.

The offender must submit to supervision by a community corrections officer.

The applicant spent 58 days in custody before she was granted bail. She then spent a significant period on particularly onerous bail conditions. Section 71 of the Sentencing Act requires an ICO to commence on the day it is imposed; it is not possible to back-date the sentence (ICO). On the other hand, “ss 24(a) and s 47(3) oblige a sentencing court (including this Court when resentencing) to take into account any period of pre-sentence custody served by the offender”: Mandranis v R [2021] NSWCCA 97 at [55] (Simpson AJA). This gives rise to a potential injustice whereby an offender does not receive the benefit of the period of pre-sentence custody: Mandranis at [56]. The solution to this problem was addressed by Simpson AJA in Mandranis at [61]:

… Provided that the appropriate term of the sentence is determined before consideration is given to an ICO, it would, if an ICO is found to be appropriate, be acceptable for that term to be adjusted by the deduction of a period equivalent to the term of pre-sentence custody, so that the ICO commences on the day it is made (in compliance with s 71) and is co-extensive with the term of imprisonment (as required by s 70). The sentence actually recorded and imposed would be less (by the length of the pre-sentence custody) than the sentence found to be appropriate to meet the purpose of sentencing.

I would adopt the same approach and would reduce the term of imprisonment actually recorded and imposed to a period of 1 year and 10 months which is to be served by way of an ICO. This involves a very small amount of rounding down, but that is appropriate given the length of time the applicant complied with onerous bail conditions.

Orders

I propose the following orders should be made:

Grant leave to appeal against conviction and sentence.

Appeal against conviction dismissed.

Appeal against sentence allowed.

Set aside the sentence imposed by her Honour Payne DCJ on 21 May 2021.

In lieu, sentence Biyun Zheng to a term of imprisonment of one year and 10 months commencing on 22 March 2023 to be served by way of an Intensive Correction Order commencing on 22 March 2023 and expiring on 21 January 2025.

The Intensive Correction Order is subject to the following conditions:

the offender must not commit any offence; and

the offender must submit to supervision by a community service officer.

The applicant is to report on or before 5 April 2023 to the Parramatta office of Corrective Services NSW, or such other location as may be advised by the Commissioner for Corrective Services.

HAMILL J: I have had the great advantage of reading the draft reasons of Gleeson JA. His Honour’s comprehensive analysis leaves me with very little to say.
I agree that the guilty verdict on the alternative count (in short, reckless wounding) was not unreasonable and is able to be supported on the evidence. On a review of the record of the trial I have reached the same factual conclusions as Gleeson JA, particularly those set out with precision at [188]-[192]. The evidence disproved or eliminated self-defence beyond reasonable doubt, despite the urgency of circumstances, the tendency case concerning the history of marital discord and past abuse and its likely impact on the applicant’s belief as to what constituted a reasonable response in the circumstances. Of particular significance, as Gleeson JA demonstrates, is the location of the stabbing within the hallway and the fact that the complainant was carrying a small child at the time.
I also agree with Gleeson JA that the reasons of the trial Judge were adequate to fulfil their function, albeit they may not have been perfect. In this regard, it is worth noting that Judge Payne delivered judgment just five days (including a weekend) after closing submissions were delivered.
I also agree with Gleeson JA that the sentence imposed was manifestly excessive in the circumstances of this case and this individual applicant. There was no suggestion that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was not crossed, and I proceed on the basis that a sentence of imprisonment was the only appropriate sentence. However, a sentence of 2 years (adjusted to take into account the period of pre-sentence custody), adequately reflects the criminality when one takes into account the objective criminality, the history of the relationship and the applicant’s compelling personal circumstances. Ms Zheng has never offended before, and I doubt she will ever offend again. I also agree with Gleeson JA that the sentence should be served by way of an Intensive Correction Order (ICO) with the minimum number of conditions. In reaching that conclusion, and like the presiding Judge, I have considered the relevant statutory considerations including those which generally prohibit the imposition of ICOs in domestic violence cases.
I agree with the orders proposed by Gleeson JA.
IERACE J: I also agree with the orders proposed by Gleeson JA, his Honour's reasons and the additional observations made by Hamill J at [304].

**********

Decision last updated: 22 March 2023

Medium Neutral Citation:	Zheng v R [2023] NSWCCA 64
Hearing dates:	4 April 2022
Date of orders:	22 March 2023
Decision date:	22 March 2023
Before:	Gleeson JA at [1] Hamill J at [301] Ierace J at [306]
Decision:	(1) Grant leave to appeal against conviction and sentence. (2) Appeal against conviction dismissed. (3) Appeal against sentence allowed. (4) Set aside the sentence imposed by her Honour Payne DCJ on 21 May 2021. (5) In lieu, sentence Biyun Zheng to a term of imprisonment of one year and 10 months commencing on 22 March 2023 to be served by way of an Intensive Correction Order commencing on 22 March 2023 and expiring on 21 January 2025. (6) The Intensive Correction Order is subject to the following conditions: (a) the offender must not commit any offence; and (b) the offender must submit to supervision by a community service officer. (7) The applicant is to report on or before 5 April 2023 to the Parramatta office of Corrective Services NSW, or such other location as may be advised by the Commissioner for Corrective Services.
Catchwords:	CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Judge alone trial — Whether judge’s verdict was open upon the whole of the evidence CRIME — Appeals — Appeal against conviction — Whether failure to give sufficient reasons — Judge alone trial — Whether reasons for the verdict disclose a sufficient basis for findings of fact — Criminal Procedure Act 1986 (NSW), s 133(2) CRIME — Appeals — Appeal against sentence — sentence of imprisonment of 2 years 6 months with non-parole period of 10 months — Whether sentence manifestly excessive — Applicant resentenced — Whether appropriate sentence of 2 years imprisonment should be served by way of an ICO – Whether term of imprisonment to be served by way of ICO should be adjusted and reduced in recognition of period of pre-sentence custody
Legislation Cited:	Crimes Act 1900 (NSW), ss 33(1)(a), 35(4), 418, 419 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 4A, 4B, 5, 7, 21A, 24, 47, 66, 68, 71, 72, 73, 73A Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) Crimes (Administration of Sentences) Regulation 2014 (NSW), reg 187 Criminal Appeal Act 1912 (NSW), s 5 Criminal Procedure Act 1986 (NSW), 133(2) Evidence Act 1995 (NSW), ss 38, 128
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Byrne v R [2020] NSWCCA 218 Clarke-Jeffries v R [2019] NSWCCA 56 Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221 Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 DPP (Cth) v De La Rosa [2010] NSWCCA 194 Douglas v R [2012] HCA 34; (2012) 290 ALR 699 Elias v R [2006] NSWCCA 365 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Fleming v R (1998) 197 CLR 250; [1998] HCA 68 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 Mandranis v R [2021] NSWCCA 97 Moodie v R [2020] NSWCCA 160 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Oblach v R (2005) 65 NSWLR 75; [2005] NSWCCA 440 Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294 Rogers v The Queen (1994) 181 CLR 251 RO v R [2019] NSWCCA 183 R v Dodd (1991) 57 A Crim R 349 R v Geebung [2020] NSWDC 546 R v Katarzynski [2002] NSWSC 613 R v Pullen [2018] NSWCCA 264 R v Zamagias [2002] NSWCCA 17 Sivaraja v R; Sivathas v R [2017] NSWCCA 236 Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 Turnbull v R [2019] NSWCCA 97 Wany v R (2020) 103 NSWLR 620; [2020] NSWCA 318
Category:	Principal judgment
Parties:	Biyun Zheng (Applicant) Director of Public Prosecutions (NSW) (Respondent)
Representation:	Counsel: T D Anderson SC (Applicant) G A Newton (Respondent) Solicitors: Lisa De Luca & Co (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2017/167603
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 12 August 2020 and 21 May 2021 Before: Payne DCJ File Number(s): 2017/167603