STATE OF TASMANIA v XIN WANG 17 DECEMBER 2019
and XINYI LI
COMMENTS ON PASSING SENTENCE BRETT J
Mr Li, you have been found guilty of two counts of assault. It is obvious to me, and I am satisfied, that you became involved in this dispute when you woke up after hearing an argument. As you said in your evidence, you came out of your room, and I am satisfied that you saw what you thought was a physical exchange between Mr Chen and Ms Wang.
The context was that there had been a deteriorating relationship between Ms Wang and you on the one hand, and Mr Chen on the other. Your initial reaction was to defend Ms Wang. What you should have done is taken hold of Mr Chen perhaps by the arm and pulled him away and held him off. But what you in fact did was to punch him in the back of the head. The jury was satisfied, and I agree, that this was the use of excessive force in the circumstances. You will understand, I am sure, that it can be a very dangerous thing to punch somebody in the back of the head. That was count 2.
Count 3 involved the continuation of this assault. I think it is difficult to disentangle your original motive of defending Ms Wang from your decision to continue to punch Mr Chen. I suspect that there were probably some emotions of anger and resentment, probably arising from earlier difficulties which flowed into that decision to continue to punch him. But, in any event, that force was not justified, and it clearly caused some injury to Mr Chen. I think it did cause some temporary blurring of vision, and some temporary injury to his face and eye. I am not satisfied that the impact on Mr Chen is as serious as described in his victim impact statement. But, of course, there was some impact.
Your lawyer has given me a lot of detail about your background. You have no prior convictions, and you have not been in trouble of any other kind. It is obvious to me that, apart from the commission of this offence, which was an emotional reaction, spontaneous to the particular circumstances, you are otherwise a person of impeccable character. I accept that you will suffer because of your commission of these offences in other ways. In particular, I imagine that you have put yourself in great jeopardy with respect to the situation in relation to your visa, and you have also significantly affected what hopes you might have had in relation to permanent residency.
Relatively serious assaults such as this do deserve some punishment, but having regard to your prior good character, that punishment should be limited to a fine. The Sentencing Act now permits a court to impose a fine with or without recording a conviction. Section 9 of the Sentencing Act provides that, in deciding whether or not to record a conviction, the court must have regard to all the circumstances of the case, including your background and character, and the impact that a conviction would have on your economic or social wellbeing. Having regard to those matters and, in particular, having regard to the fact that this is the first time that you have been found guilty of an offence, I intend to impose a fine without recording a conviction.
The sentence is that, without recording a conviction for either charge, I impose a global fine of $1,000.
Ms Wang, you have been found guilty of one count of assault by a threatening gesture. An important aspect of this offence is that the threatening gesture involved a threat by use of a weapon, the knife. I am satisfied that you acted in this way because of a combination of emotions that had arisen on the morning in question, which included fear of the complainant, but also resentment at the way he had treated you. His treatment had included his attitude towards you at earlier times, and also included the message which started this whole incident. I have no hesitation in saying that I consider that the message did contain deliberately abusive and insulting language. I did not believe the complainant’s evidence about the use of the relevant letters. He was being deliberately abusive and insulting. However, your actions in picking up the knife, going to his room and threatening him with the knife, were unjustified and constituted an over-reaction which was a serious assault. The use of a weapon in any dispute is a serious matter, and in the circumstances in that house on that morning, it was a serious matter. However, I do take into account that the assault was a threat only. It is of course the case that you did not actually use the knife and he was not physically harmed by what you did.
The comments I made to Mr Li about background are also relevant in your case. You have also demonstrated, apart from this offence, an impeccable character. You and your family have obviously worked very hard to enable you to come to Australia and complete your studies successfully. You will also suffer from the point of view of a visa and your immigration status in the same way as Mr Li. For those reasons, I will also impose a fine, but not record a conviction.
The sentence I impose is that, without recording a conviction, you are fined the sum of $400.
You are both free to go.