R v Tang [2022] NSWDC 1

District Court New South Wales

Medium Neutral Citation: R v Tang [2022] NSWDC 1 Hearing dates: 27/1/22, 28/1/22 Date of orders: 28/1/22 Decision date: 28 January 2022 Jurisdiction: Criminal Before: Priestley DCJ Decision: Sentenced to an Intensive Corrections Order for a period of 18 months Catchwords: Crime – Sentence – Disputed facts – Reckless grievous bodily harm Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Buddle [2005] NSWCCA 82 Blanch v R [2019] NSWCCA 304 Category: Sentence Parties: NSW DPP – Crown Dian Tang - Offender Representation: Ms J Turner for Crown Mr E Ozen for Offender File Number(s): 2020/249568

Judgment

Introduction 1. Dian Tom Tang ("the offender") appears for sentence on one charge of causing grievous bodily harm and being reckless as to causing actual bodily harm. The Crown bundle was tendered and became exhibit A in the proceedings and contained as item 3 a document headed "Statement of agreed and disputed facts". In that document the disputed areas are highlighted. They were excluded as part of exhibit A but reference was made to them in submissions by the parties as to whether they had been established or not, so that those passages assist in identifying what is in dispute. Thus while they are not evidence it should be noted that reference has been had to them in order to determine the disputed facts issue. The dispute as to facts is resolved below. 2. The offence is charged under section 35(2) of the Crimes Act 1900. The maximum penalty is 10 years imprisonment and there is a standard non-parole period of four years. I take both the maximum sentence and a standard non-parole period into account in determining the appropriate sentence as a legislative guidepost. Further in relation to the standard non-parole period I note that it is a matter to be taken into account in determining the appropriate sentence for all cases and not just those falling within the middle of the range of seriousness referred to in s54A of the Crimes (Sentencing Procedure) Act ("CPA"). 3. The following matters are largely taken from exhibit A, from either the Crown sentence summary coversheet or that part of the statement of agreed and disputed facts that is agreed, and with some matters being findings from the evidence which were not disputed by either party. 4. The offender was born on 19th February 1994. The offence occurred on 23 August 2020, so that at the time of the offending the offender was 26 years old. The offender was arrested on 27 August 2020. He has spent no time in custody. There are no matters to be dealt with by way of the Form 1 procedure. The offender was not on conditional liberty at the time of the offending. Indeed the offender has no prior criminal history. 5. The offending occurred at approximately 9:50 AM on Sunday, 23 August 2020. The victim was in his motor-vehicle on The Crescent, a road in Pennant Hills, logging onto rideshare applications and intending to commence work as a rideshare driver. The evidence at the hearing which does not seem disputed suggests he was checking for the location of the cheapest petrol. A couple of minutes after parking his car, and whilst his vehicle's engine was still running, (not stated in exhibit A, but I find this to be so, and it was not disputed by either party) the girlfriend of the offender, Ms Liang, waved to the victim through the window of his car signalling and mouthing words asking him to move slightly forward. Ms Liang's evidence which I accept was that she asked him to move approximately 7 cm forward. The agreed fact is at paragraph 5 of the agreed and disputed facts document is that the victim said "oh for fuck's sake what the fuck do you want" 6. There was then an exchange between Ms Liang and the victim which is disputed and dealt with below. Following that exchange it is agreed the victim said "fuck off". The victim then wound his passenger-side window up. The agreed facts do not refer to this as a passenger window but that was clear from the evidence of the victim and I so find for he said as much and I accept his evidence in that regard. It is agreed the victim looked in the rear vision mirror and saw the offender in the driver seat of the car behind get out of his car. What follows then is in dispute. 7. Before dealing with the disputed facts the nature of the injuries suffered by the victim can be set out for they are not in dispute. 8. The victim was observed to have an open cut to his left eye, a cut to the right side of his forehead and blood all over his head. His shirt was torn. At the hospital the following injuries were noted: 1. Laceration lower lip: 2. 2 lacerations on the occipital area 3. Bruising swelling on the left periorbital area 4. Laceration on the left eyebrow 5. Laceration on the chin 6. Laceration the right side of the forehead and 7. Laceration on the lateral side of the left eye 8. Severe fracture of the nasal bones with marked nasal deformity and facial fracture 9. Cosmetic deformity and inability to breathe through the right side of his nose 10. Severe bilateral periocular bruising with a laceration over the right forehead 1. Surgery was performed and confirmed severe and multiple fractures of the nasal bones and nasal septum with a complete fracture of the cribriform plate and active cerebrospinal fluid leak. 2. The septum was fractured with a large septal haematoma and severe deformity which was completely occluding the right nasal airway. 3. On review after surgery the septum was noted to be healing well and the airways patent, which I take to mean no longer occluded. There was no sign of any septal haematoma or any CFS leak. 4. Following the offending behaviour the offender sent a message to the victim stating "your phone is at 9 Victoria Road corber (sic) of Leo Street under a little tree I suggest you get it ASAP hope you keep safe in the future champ, no hate all the best to your future".