District Court New South Wales Medium Neutral Citation: R v Zhou [2018] NSWDC 157 Hearing dates: 8 March 2018 Date of orders: 08 March 2018 Decision date: 08 March 2018 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to an aggregate term of imprisonment for 2 years and 3 months with a non-parole period of 15 months Catchwords: CRIMINAL LAW – Sentence – Home invasion – Domestic violence – Sense of entitlement – Jealousy at partner finding new relationship – Aggravated break and enter and commit serious indictable offence – Assault occasioning actual bodily harm. Category: Sentence Parties: The Crown Yuan Zhao Representation: Counsel: Mr R Johnson (Offender) Solicitors: Director of Public Prosecutions (Crown) File Number(s): 2017/86344 Judgment 1. HIS HONOUR: The offences I am about to describe committed by the offender Yuan Zhao are appropriately categorised as involving both a home invasion and domestic violence, the offences being borne out of jealousy and a sense of entitlement. 2. Mr Zhao was previously in a relationship with a woman named Yun Yun Yu. They had a child together, they separated and were living in separate homes, Ms Yu having custody of their son. The offender visited regularly and says that at one stage Ms Yu even gave him a key to allow him access to the premises. 3. On 20 March 2017 the offender, who is a taxi driver, dropped a passenger off in the vicinity of Ms Yu's residence. He drove past and saw a car he recognised parked outside. It was the car of their mutual friend, a Mr Wang. He noticed when he looked up at the apartment that only the bedroom light was on. Mr Zhao formed a suspicion that his former partner may well have formed a new relationship, something, it should not be necessary to emphasise, she was perfectly entitled to do. 4. Despite this, the offender became angry. He used the key which he had been given to enter a rear door of the premises. He knew, of course, that Ms Yu would not have permitted him to enter the premises at that time and for the purpose that he had in mind. He took a kitchen knife from a drawer and went upstairs to Ms Yu's bedroom. The knife was not a small paring knife either, it was about 20 centimetres in length. 5. When he opened the bedroom door he saw Ms Yu and Mr Wang lying in bed looking at their iPhones. He began to yell at Ms Yu. He held the knife in his right hand with his elbow bent upwards facing Ms Yu and Mr Wang. To emphasise the threat that he posed to the couple, as if the knife were not threat enough, he said, "I'm going to kill you guys" and moved quickly towards the bed. A struggle ensued. Ms Yu repeatedly told the offender to stop and put down the knife but he continued to yell at her and struggle with her. While that was happening, Mr Wang was able to call police on triple-0. Together Ms Yu and Mr Wang were able to wrestle the offender to the ground. 6. During that incident the offender bit Ms Yu on the right forearm, this resulted in bruising and swelling to her arm which caused her some pain when moving for several days. Also Mr Wang sustained a cut to his right middle finger from the knife being held by the offender, this bled in a minor way. 7. Ms Yu tried to calm the offender down. She reminded him that his son was asleep in the next bedroom and that he would be upset to find out what the offender had done. This must have had some effect because the offender dropped the knife, asked Mr Wang and Ms Yu not to call the police, only to be told that they were already on their way. He then left. 8. He says that he went immediately to Rose Bay Police Station and waited outside. He knew that they would need to contact him and when they rang he went inside. In an electronically recorded interview he made admissions to these offences, telling the police that he "lost it" and "out of control". 9. As a result of what I have described the offender now faces sentence having pleaded guilty at the earliest opportunity to two offences. 10. One is an offence of aggravated break and enter and commit serious indictable offence. The serious indictable offence is assault occasioning actual bodily harm and that related to the injury inflicted on Ms Yu, the circumstance of aggravation being that he knew that there were people inside. There is of course a substantial overlap between the indictable offence committed, assault occasioning actual bodily harm, and the circumstance of aggravation pleaded. 11. He has also pleaded guilty to an offence of assault occasioning actual bodily harm, that relating to the cut to Mr Wang's finger. 12. The first offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of five years. The second offence has a maximum penalty of five years imprisonment. I take into account both the maximum penalties, and in the case of the first offence, the standard non‑parole period in identifying the appropriate sentences to impose. My reasons for not imposing the standard non-parole period for the home invasion offence appear in these remarks on sentence. 13. As I mentioned, Mr Wang pleaded guilty at the earliest opportunity and so the sentence I impose upon him will be 25% less than it would otherwise have been. 14. Although the physical injuries inflicted by the offender were far from the most serious forms of actual bodily harm which come before the Courts the consequences for Ms Yu and Mr Wang extend well beyond physical. They each provided victim impact statements in which they speak eloquently of the psychological consequences for them of this terrifying experience. There they were, in an apartment which they believed to be locked and secure, to be confronted by a man armed with a knife threatening to kill them. The psychological consequences of which they speak are entirely foreseeable and understandable. 15. Mr Zhao was born in China. His parents' separated when he was about six and his father came to Australia. At the age of 13 Mr Zhao followed him to live with his father. His mother stayed in China. He speaks to her on the telephone and although he maintains contact with his father their relationship is somewhat strained. 16. He completed Year 12 and started work shortly thereafter, initially working as a chef for eight years before then starting work as a taxi driver. 17. He has no prior convictions apart from a matter on his criminal history of entering enclosed lands which can effectively be ignored. 18. References tendered on his behalf today speak highly of him and I have little hesitation in finding that he is a man of otherwise good character who is unlikely to re‑offend. 19. Certainly he appears to have accepted that he has done the wrong thing at an early stage of proceedings, stopping what he was doing, giving the knife to Ms Yu and Mr Wang and then heading for the police station to await contact from them. 20. The home invasion offence particularly was one of considerable seriousness. The fact that he was armed with a knife, the fact that he backed up the implied threat by making a specific threat to kill Ms Yu and Mr Wang, and the fact that a child, indeed his own child, was asleep in the premises at the time he entered and carried out his assaults, all are serious matters of aggravation as far as the objective gravity of the home invasion offence, and to a lesser extent the assault occasioning actual bodily harm offence are concerned. That is the case even though, for example, the statutory circumstance relating to the presence of the child is made out. 21. As Mr Johnson who appears for Mr Zhao today correctly recognised, principles of general deterrence are of importance in this case. People are entitled to breakup without fear that their former partner would, out of a sense of jealously and entitlement, burst into their home one night enraged because they appear to have formed a new relationship. Relationships breakdown every day. Often emotions are involved and when people give into their emotions in the way that Mr Zhao has, the Courts need to respond in a substantial way. I am satisfied that nothing less than a sentence of full-time imprisonment is appropriate. Mr Johnson correctly conceded in his written submissions that such an outcome was one of the appropriate possibilities. 22. I will impose an aggregate sentence. Had I not done so, for the offence of aggravated break and enter, I would have imposed a sentence of imprisonment consisting of a non-parole period of 12 months and a head sentence of 24 months. For the offence of assault occasioning actual bodily harm I would have imposed a sentence of imprisonment of six months. 23. Instead I will impose an aggregate sentence of imprisonment of two years and three months with a non-parole period of 15 months to date from 8 March 2018 (today) thus the non-parole period will expire on 7 June 2019. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 June 2018