Wang v R

1. [1]

   MEAGHER JA: I agree that leave to appeal should be granted and the appeal dismissed for the reasons given by R A Hulme J.

2. [2]

   R A HULME J: Ms Zixi Wang applies for leave to appeal after having been sentenced by Beech-Jones J (as his Honour then was) in the Supreme Court on 1 October 2020 for the murder of Ms Shuyu Zhou.

3. [3]

   After allowing a reduction of 25% for her early plea of guilty, his Honour sentenced Ms Wang to imprisonment for 25 years and 6 months with a non-parole period of 19 years. The sentence was backdated to 18 June 2019 to give credit for pre-sentence custody.

4. [4]

   Murder is a crime that is punishable by imprisonment for life: s 19A of the Crimes Act 1900 (NSW). There is also a standard non-parole period, in the circumstances of this case, of 20 years: Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

5. [5]

   Ms Wang (the applicant) seeks leave to appeal on the following grounds:

6. [6]

   Having regard to the seriousness of the case and the substantial sentence imposed there should be a grant of leave. The appeal however must be dismissed.

Overview

1. [7]

   The learned sentencing judge provided the following overview of the case in his remarks on sentence: [1]

The offence

1. [8]

   Details of the offence were provided in a statement of agreed facts which was supplemented by CCTV footage of critical aspects.

2. [9]

   Ms Zhou and the applicant were in a relationship from 2017 to around February 2019. The applicant “could not come to terms” with the breakup. She was depressed, anxious, slept poorly and lost weight. On 14 March 2019 she consulted a general medical practitioner complaining of loss of appetite and weight as well as insomnia. On 23 March 2019 she told a friend she had “lost hope”. She said that when she was with Ms Zhou she had wanted to work hard and have a good life but now she did not know the meaning of working. She could not understand why Ms Zhou had done this to her.

3. [10]

   In late March 2019 Ms Zhou began a relationship with a woman who was also a friend of the applicant. The applicant had become aware of this. She again consulted a general practitioner who recorded, “Adjustment disorder - relationship breakdown after ex cheated on her with her friend”. The doctor also noted, “Presents with symptoms of mixed anxiety and depressed mood.”

4. [11]

   Ms Wang’s apartment was in Zetland and an arrangement was made for Ms Zhou to come and collect some of her possessions. After a couple of cancelled arrangements, she attended on the evening of 17 June 2019, arriving shortly before 7.30pm. She went up to the apartment which was on the fifth floor of the building.

5. [12]

   At some stage in the apartment Ms Zhou and the applicant had a fight. Neighbours heard shouting, an item being smashed, dragging noises and the sound of someone crying. Police were later to find Ms Zhou’s blood on items in the lounge room, kitchen and on the frame of the sliding door to the balcony. The agreed facts included that the applicant did not want Ms Zhou to leave the unit. The applicant sustained injuries consistent with having been bitten on the cheek and she had scratches and bruises to her neck.

6. [13]

   Ms Zhou went onto the balcony and climbed over the railing. She fell, landing face down onto a Colorbond fence and then flipped over with her body falling onto a path. This was at the beginning of the CCTV footage. It was now 8.39pm, an hour and 14 minutes after Ms Zhou had arrived at the apartment.

7. [14]

   Beech-Jones J observed that it was not said in the agreed facts that the applicant threw or pushed Ms Zhou over or off the balcony and so she was not to be sentenced on that basis. The agreed facts referred to Ms Zhou having “climbed over the railing” and that she “fell” and so it was to be inferred that accident may have played some role in her fall. He proceeded on the basis that Ms Zhou was trying to escape the apartment and she was in significant fear, given it was on the fifth floor.

8. [15]

   His Honour referred to the CCTV showing Ms Zhou lying on her back on the path. She struggled with her clothing which had pulled up over her face. She was able to move her arms and legs but was unable to get up. To his Honour’s observation she was writhing in agony.

9. [16]

   At 8.42.36pm, according to the CCTV, the applicant came down from her apartment and approached Ms Zhou. She adjusted her clothing, but Ms Zhou pushed the applicant and attempted to move away. Ms Wang stood looking at her and then returned to her apartment. She did not call an ambulance or render any assistance.

10. [17]

    Residents heard a loud bang and then someone crying. One of them went to his balcony and saw the applicant walking away. He went to investigate, found Ms Zhou lying on the pathway, and rang triple-0. While he was on the call the applicant (who for some reason had changed into different pants) walked past him, back to Ms Zhou. The witness retreated to his apartment.

11. [18]

    The applicant pulled a knife out of her pocket and stood over Ms Zhou. (It was now 8.47.18pm.) She proceeded to inflict about “40 stab wounds and approximately 18 incised and puncture wounds” [sic]. Most of the stab wounds were to the neck, upper trunk and upper arms. Ms Zhou was screaming; she waved her hands and arms towards the applicant a number of times trying to stop her.

12. [19]

    The last blow was struck at 8.49.06pm. The applicant quickly jogged away, hid the knife in a garden bed and returned to her apartment. A few moments later she went to the building’s carpark and drove away in Ms Zhou’s car. This was just after the first police and ambulance officers had arrived at about 8.55pm, about 2 minutes after Ms Zhou’s last movements were seen. She was unable to be saved.

13. [20]

    The applicant was found the next day at the Sea Cliff Bridge at Coalcliff. She told a paramedic she wanted to jump off the bridge and end her life.

14. [21]

    The agreed facts included that Ms Zhou sustained an array of serious injuries from the fall. The pathologist concluded, “these injuries would not have been immediately fatal and there was no significant haemorrhage associated with the lacerated liver and kidney”. The direct cause of death was stab wounds to the neck.

15. [22]

    Beech-Jones J made the following observations based upon the agreed facts and more so in relation to the CCTV footage in light of the issues that arose in the sentencing proceedings. Those issues included whether there was any loss of self-control on the part of the applicant.

16. [23]

    The following facts were found by the judge, most of which were conveniently collected in the applicant’s written submissions: [2]

17. [24]

    The written submissions also collected some of the judge’s conclusions. [3] They included that the murder was a “particularly heinous” and “an especially callous” crime that involved an “extreme form of domestic violence”. There had been a “pathological callousness for the suffering of someone she used to love”. The objective seriousness of the offence was “above the middle of the range” and the applicant’s moral culpability was “high”.

The applicant’s background and personal circumstances

1. [25]

   There was no oral evidence in the applicant’s case which was confined to the tender of documentary material. The following account of her background and personal circumstances is largely drawn from the judge’s sentencing remarks. Evidence as to her mental state at the time of the offending will be referred to in detail under Ground 1.

2. [26]

   The applicant was born in China. Her parents separated when she was aged around three. She was raised by her mother but attended a long-stay childcare facility that was strict and administered physical punishment. From the age of about four she was raised by her maternal grandparents in a stern and austere home. She described a lonely childhood with few friends at school.

3. [27]

   The sole occasion when she is reported to have witnessed an act of domestic violence was when she was aged five or six when she witnessed her father attempt to force his way into her grandparents’ home by producing a knife. She remained with her grandparents until she was 11 and resumed living with her mother who had remarried. She had a reasonable relationship with her stepfather.

4. [28]

   None of the history of the applicant’s upbringing mentions any issue of her engaging in or being exposed to alcohol or other substance abuse.

5. [29]

   The applicant performed well in school and subsequently obtained a degree in political science and law. She ran her own business before coming to Australia in 2014 at the age of 24 where she obtained a master’s degree in accounting and marketing.

6. [30]

   The applicant wrote a letter in which there was a lengthy account (which the judge said he accepted) of her upbringing in China and the difficulties she experienced in China and Australia in obtaining acceptance and understanding of her sexuality.

7. [31]

   The applicant referred to meeting Ms Zhou in 2017 and described it as “love at first sight”. His Honour accepted the applicant felt extreme anguish at the breakup in 2019.

8. [32]

   There were a number of letters and testimonials. One by a former partner spoke of a “peaceful breakup” of their relationship in Adelaide when the applicant moved to Sydney. Others spoke of the applicant’s positive qualities and described the offending as out of character and remorseful. There were also letters from chaplains of two correctional facilities.

9. [33]

   His Honour accepted the applicant was a person of prior good character and did not have any record of previous convictions. He accepted she was remorseful for the killing of Ms Zhou and the impact upon Ms Zhou’s family, although adding that he was “not satisfied that she has fully come to terms with her own actions and their consequences”.

10. [34]

    The judge made two findings as to the applicant’s prospects of reoffending. In respect of “serious reoffending” they were “low but not negligible” and in respect of “reoffending in other circumstances“ they were “very low”.

11. [35]

    His Honour referred to a submission by Mr Bellanto QC on the applicant’s behalf that her experiences as a child were relevant to sentence. Reliance was placed upon the second of two reports by Dr Richard Furst, forensic psychiatrist, in which he had said the applicant had: [4]

12. [36]

    His Honour concluded that the doctor’s opinion may provide an explanation for how the breakup with Ms Zhou affected the applicant so profoundly, but said, “an explanation is one matter, a mitigating feature is another”. He declined to find that, on the basis of her childhood experiences, the applicant’s moral culpability was reduced, or that additional consideration should be given to specific deterrence. [5]

13. [37]

    His Honour found that the applicant’s conditions of incarceration would be more onerous. As a result of restrictions applying during the COVID-19 pandemic and the fact the applicant’s family were overseas, the applicant would face a considerable period of personal isolation in custody in Australia with an expectation of only spasmodic visits from her family thereafter. [6]

Ground 1 – miscarriage of justice resulting from the absence of new evidence in the sentence proceedings

1. [38]

   This ground is concerned with the applicant’s mental condition at the time of the offending, including the effects of certain childhood experiences. It will be necessary to refer in some detail to the evidence that was before the sentencing court, the manner in which it was relied upon by the applicant and how it was regarded by the sentencing judge. This will provide a context for the “new” evidence the applicant seeks to rely upon in this Court.

2. [39]

   As indicated earlier, the applicant’s case on sentence was entirely documentary and included two reports by Dr Furst. The Crown’s position was that Dr Furst’s opinions should be viewed with “very considerable caution” and “some scepticism” as they were based upon things said by the applicant that were untested. R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369, a well-known authority for such a proposition, was cited. [7]

3. [40]

   In this Court, the applicant accepted that findings made by the sentencing judge were open on the material that was before him, namely Dr Furst’s two reports. However, it was said that the reports may have been ambiguous in certain respects and the true position has been clarified by a further report by Dr Furst that was obtained after sentencing.

4. [41]

   The Crown objected to the tender of the further report on the basis it did not meet the requirements for reception of “new” evidence on an appeal against sentence.

5. [42]

   Dr Furst’s first report, dated 23 July 2019, included a detailed history provided by the applicant of her life from early childhood. There was no suggestion in the report of anything untoward about her mental health prior to the breakup. The description of her reaction to the breakup was to the effect that she took it quite badly. This was not in issue; it was part of the agreed facts.

6. [43]

   Dr Furst diagnosed a Major Depressive Episode. He wrote: [8]

7. [44]

   The report included Dr Furst’s opinion that the applicant was fit to be tried; she was not suffering from a major mental illness or psychosis at the time of the offence; and she did not have the mental illness defence available to her. He then opined that the defence provided by s 23A of the Crimes Act was reasonably arguable.

8. [45]

   The defence in s 23A was, at the relevant time, one of substantial impairment by abnormality of mind. [9] It had two limbs:

9. [46]

   Of course, no such defence was pursued by the applicant but that did not imply she was abandoning both limbs entirely. She clearly chose to abandon the second but ran a case which was to the effect that her capacity to control herself was impaired. There was support for this in the opinion of Dr Furst in his first report: [10]

10. [47]

    The question of loss of control pervaded the course of submissions before the sentencing judge concerning her mental condition; e.g. see below at [60].

11. [48]

    Dr Furst’s second report was dated 28 August 2020. By this time the applicant had pleaded guilty and was due to appear for sentence on 14 September 2020. The applicant was further interviewed by Dr Furst on 22 July 2020.

12. [49]

    This report provided a more detailed history of the applicant’s upbringing. It included that her father was often violent towards her mother in the applicant’s early childhood, although she did not directly witness domestic violence prior to their separation. She spent most weeks of her early childhood (aged three to five) in a long day-care facility, only being in her mother’s care from Friday afternoon to Monday morning. Her teacher/carer was strict and used physical punishment. She was unhappy. [11]

13. [50]

    The applicant was in the care of her maternal grandparents when aged four to five, only seeing her mother once a year for Chinese New Year. Her grandparents were not nice to her and used physical discipline including hitting her with a stick. She had no friends and felt highly anxious in primary school and described feeling very lonely in her childhood. She returned to live with her mother at age 11-12. [12]

14. [51]

    Her mother remarried and she got on reasonably well with her stepfather. In her teenage years she was not very close to her mother who would accuse her of being with boys (whereas she was attracted to girls) and hit her in the face.

15. [52]

    The account of the applicant’s relationship with Ms Zhou in this report was largely a replication of the history set out in the earlier report. It added in relation to her mental state on the night in question: [13]

16. [53]

    I interpolate that Mr Bellanto QC submitted to the judge that intoxication provided an explanation for the applicant’s conduct. [14] His Honour did not accept this because the only material supporting it was her hearsay statements to which he gave little weight. [15] It is of some significance that this excerpt from the history provided by the applicant includes another claim to having been unable to control herself.

17. [54]

    Dr Furst provided the following opinion about the circumstances of the applicant’s childhood: [16]

18. [55]

    Dr Furst slightly revised his diagnosis in this report, indicating the applicant met the criteria for “Major Depressive Disorder, melancholic features”. Under the heading “Psychiatric and Psychological Mitigating Features” he included the following: [17]

19. [56]

    The foregoing being the evidence concerning the applicant’s mental state, it is pertinent now to turn to the submissions made to the sentencing judge.

20. [57]

    Mr Bellanto QC and YC Lin of counsel, who appeared for the applicant on sentence, provided extensive written submissions which devoted an entire section to the significance of her mental condition. In an introduction it was contended that it was relevant to the assessment of her moral culpability as well as to considerations of general deterrence and retribution. [18]

21. [58]

    After a review of pertinent aspects of Dr Furst’s two reports, it was submitted that the applicant’s “mental illness reduces her moral culpability”, following which there was a quote from the judgment of the High Court of Australia in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [53] as to “very little weight” often being given to general deterrence in the case of an offender suffering from a mental disorder or abnormality. [19]

22. [59]

    There was a second limb to counsel’s argument about less weight being given to deterrence. In a separate and later section of the written submissions under the heading “Difficult Childhood”, it was contended that less weight should be assigned to general and specific deterrence and greater weight given to rehabilitation on account of the applicant’s “experiences as a child”. Her exposure to violence as a child was also said to ameliorate her moral culpability. [20] A paragraph from Dr Furst’s second report was quoted; that which is quoted above at [54]. [21]

23. [60]

    In oral submissions, Mr Bellanto reviewed the reports of Dr Furst in detail. He quoted from the first report the opinion that the applicant’s depression was “so severe and her mental disorder so significant that her capacity to control her actions was impaired”. This was within a longer passage quoted above (at [46]) which included Dr Furst’s opinion that the first limb of the substantial impairment defence was available on the “loss of control” aspect. [22] The judge sought clarification and received the following response: [23]

24. [61]

    Mr Bellanto proceeded with references to the second report, including Dr Furst’s opinion that the applicant was “severely depressed on the night of the offence” and that “she was in a disordered state of mind by virtue of her severe depression and associated thought processes which contributed to her poor decision making and extreme actions when killing Ms Zhou”. [24] He was quoting from the third and fifth paragraphs on page 10 of Dr Furst’s second report; the passages underlined in the extract set out above (at [55]). It was directly after doing so that Mr Bellanto concluded on the subject: [25]

25. [62]

    The Crown submitted that the actions of the applicant as depicted on the CCTV footage were inconsistent with there being an inability to control herself or a lack of capacity to understand events or judge whether her actions were right or wrong (i.e. all three aspects of the first limb of the substantial impairment defence). Nevertheless, the Crown did allow for the applicant’s diagnosed mental state to have contributed to the offending. It conceded that it would be open to find that the applicant’s mental condition diminished her moral culpability, although “only to a small degree”. [26]

26. [63]

    As to the applicant’s written submissions concerning her “difficult childhood”, the Crown submitted that the evidence was insufficient to engage the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and result in a significantly lesser sentence. [27]

27. [64]

    The judge devoted a section of his remarks on sentence to “The Offender’s Mental State”. He said he understood the issue was “whether there was some degree of loss of the offender’s ability to control herself so as to mitigate either the objective seriousness of her crime or her moral culpability for it”. [28] This understanding appears consistent with what Mr Bellanto QC had told him (see above at [60]-[61]). As will be seen, however, the judge did not confine his consideration of the evidence just to the “loss of control” aspect.

28. [65]

    The judge made specific reference to passages in Dr Furst’s reports and quoted the three paragraphs on page 10 of the second report that have been extracted above (at [55]). The final sentence in that extract was emphasised by his Honour, namely: [29]

29. [66]

    His Honour referred to the Crown’s submission that the CCTV footage showed the offender was composed and deliberate in her actions and the counter-submission by Mr Bellanto that this was not determinative, and that Dr Furst had seen the footage too. [30]

30. [67]

    A finding was made that the applicant’s ability to control herself was impaired in a limited sense which his Honour explained as follows: [31]

31. [68]

    The judge referred to Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] where McClellan CJ at CL provided a convenient summary of principles concerning sentencing of an offender with a mental condition:

32. [69]

    Beech-Jones J continued: [32]

33. [70]

    The second limb to the submissions for the applicant concerning her moral culpability and the asserted reduced significance of deterrence, namely the effects of her childhood experiences, were considered by the judge as follows: [33]

34. [71]

    In concluding his sentencing remarks, the judge summarised some of the pertinent features and they included: [34]

35. [72]

    I turn to the “new” evidence relied upon by the applicant in this Court.

36. [73]

    Dr Furst was approached by solicitors acting for the applicant in proposed proceedings in this Court. He was provided with the judge’s remarks on sentence and his attention was drawn to paragraphs 49 and 51. Paragraph 49 comprised his Honour quoting from page 10 of the second report (see above at [55]). Paragraph 51 comprised his conclusion as to the significance of the applicant’s mental condition (see above at [67]). The solicitors asked Dr Furst whether what the judge said was congruent with his opinion and if not to clarify or expand upon the issue.

37. [74]

    The most relevant aspect of Dr Furst’s response was contained in the following: [35]

38. [75]

    Dr Furst’s attention was also directed to paragraphs 78 and 80 of the sentencing remarks: see above at [70]. These related to his Honour’s consideration of a submission made by Mr Bellanto QC about the relevance of the applicant’s negative childhood experiences. Dr Furst was again asked whether what the judge said was congruent with his opinion and if not to clarify or expand upon the issue. After referring to some matters of evidence, he responded in terms of matters he considered “likely” and similar: [36]

39. [76]

    The submissions for the applicant quoted from the second and third paragraphs on page 10 of Dr Furst’s second report (quoted above (at [55])). It was submitted, in effect, that Dr Furst had indicated the applicant’s depressive disorder had affects beyond “probably” impairing her “capacity for self-control”. [38]

40. [77]

    However, it is important to note that Mr Odgers SC, who appeared for the applicant in this Court, made it unequivocally clear that there was no complaint of error by the sentencing judge in his consideration of the applicant’s mental condition as it was described in the two reports by Dr Furst. There was no challenge to the findings made on the material that was before him. [39]

41. [78]

    It was submitted that the applicant was not seeking to make a case that was in any way different from that which was presented at first instance. The third report of Dr Furst simply “clarified” or “supplemented” the case in certain material respects. [40]

42. [79]

    It was submitted that to the extent there was ambiguity in the report of 28 August 2020, there was “clarification” in the further report of 7 May 2021 where, in the passage quoted above (at [74]) Dr Furst provided an opinion that “supports a conclusion that the applicant’s depressive disorder did have a material effect on her moral culpability”. [41]

43. [80]

    A second way in which Dr Furst’s further report was said to provide “clarification” was in asserting a causal link between the effects of the applicant’s childhood experiences and the murder.

44. [81]

    Mr Odgers SC accepted that Dr Furst’s report of 28 August 2020 “did not expressly” assert a causal link between the murder and matters he described in that report and which were quoted in Mr Bellanto’s written submissions [42] as deriving from the applicant’s childhood; namely “an insecure pattern of attachment” and a consequential “fear of abandonment, clingy and/or insecure relationships, dependence on others and/or co-dependent relationships”. However, it was submitted that “it may reasonably be inferred” that Dr Furst considered such a link existed. [43]

45. [82]

    It was then submitted that “to the extent that it may be said that there is some ambiguity” in the report of 28 August 2020, Dr Furst “makes clear” his opinion in the further report of 7 May 2021 in the passage quoted above (at [75]). It submitted that “this evidence supports a conclusion that the applicant’s ‘hard’ childhood did reduce her moral culpability for the murder to some extent”. [44]

46. [83]

    The written submissions concluded on this ground by asserting that a miscarriage of justice resulted from the sentencing judge’s misunderstanding – “perhaps understandably, given the way the opinion was expressed” – of the evidence of expert opinion adduced on behalf of the applicant. “Clarification” of the opinion demonstrated a significantly lower level of culpability than the judge appreciated. [45]

47. [84]

    It is a well-established principle that parties are bound by the manner in which their cases were presented at first instance: R v Birks (1990) 19 NSWLR 677 at 683E-684F. The practical effect of this for present purposes is that, as a general proposition at least, the applicant is bound by the decisions made by her counsel as to the tender of the reports by Dr Furst in the form they were in, without seeking any further clarification or supplementation by the doctor as to their content. Such a general proposition is not insurmountable as this Court will always intervene to address any serious miscarriage of justice. However, the applicant faces a significant hurdle in establishing this when she had the benefit of one of the most senior and experienced Queen’s Counsel appearing for her who was armed with expert reports from one of the most renowned and respected forensic psychiatrists.

48. [85]

    The applicant also has the hurdle of showing that the Court is able to receive the additional evidence in the form of the third report of Dr Furst. The principles on this subject were carefully and helpfully set out in the judgment of Simpson J (as her Honour then was) in Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 at [104]-[121].

49. [86]

    As the Crown pointed out, where evidence is sought to be adduced of facts or circumstances which existed at the time of sentencing, even if not then known, or imperfectly understood, where the interests of justice have so dictated the Court has admitted additional evidence in order to correct the misunderstanding. The basis for this position has been that although on the state of the evidence before the sentencing judge no error could be identified, the sentencing proceeded upon an erroneous view of the factual circumstances: R v Smith (1987) 44 SASR 587; Khoury v R at [113]. [46] Simpson J referred to the judgment of King CJ in R v Smith at 588 where he said that "it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence".

50. [87]

    ZZ v R [2019] NSWCCA 286 is an example where the true significance of material before a sentencing judge was not appreciated at the time. A drug importer had provided police with the name, description and whereabouts of the person who had recruited her but at the time of sentencing it was not known whether the information was truthful because the Australian Federal Police had not sent the information to police in the offender’s home country for assessment. The sentencing judge did not provide any allowance for assistance to authorities. It was subsequently confirmed that the information was truthful and thereby of value. Evidence of the true position, only generated post-sentencing, was allowed on the appeal and the offender was resentenced.

51. [88]

    At the end of her summary and discussion of the relevant principles in Khoury v R, Simpson J said the following (at [118]-[121]):

52. [89]

    In the present case there is no explanation for the opinion provided by Dr Furst in his third report not having been provided in either of his earlier reports except to say that it is nothing new or different; it is simply a “clarification” or “supplementation” of what he had already said.

53. [90]

    In response to questions from the bench at the hearing of the application, Mr Odgers SC accepted as a fair summary the following: [47]

54. [91]

    These circumstances are, to my mind, a very good reason for the Court to exercise its discretion to reject the third report of Dr Furst. The applicant’s approach is antithetical to this Court being one of error, not of rehearing pleas in mitigation of sentence.

55. [92]

    Mr Odgers also indicated he was unaware of any case in which what was being attempted here has been done before. Undeterred, however, he submitted it was only since obtaining the report of 7 May 2021 that it had become clear that Dr Furst’s opinions had not previously been articulated clearly: “Nothing has changed in terms of his opinion, it is the clarity with which he conveyed it”. [48]

56. [93]

    Ultimately, it was submitted to be in the interests of justice that the further report of Dr Furst be received and that this ground be upheld.

57. [94]

    It is necessary to keep in mind in the consideration of this ground that it is concerned with opinions expressed by a psychiatrist that are based upon an untested and unverified history provided by the applicant. The Crown at first instance took exception to the psychiatric reports being tendered to the sentencing judge who responded that it was a matter of weight.

58. [95]

    The major thrust of the defence case at first instance in relation to the applicant’s mental condition was directed to her ability to control herself at the critical time. So much is clear from the summary of the submissions made by Mr Bellanto QC provided above. It was open to the sentencing judge to conclude that the genesis of the applicant’s decision to kill Ms Zhou was not to be found in her mental condition. It was not incumbent upon him to accept the contrary opinion of a psychiatrist in the face of clear evidence of the applicant appearing to make a considered decision about her actions. The killing was not carried out spontaneously or immediately by way of impulse or lack of inhibition, beyond the scope of reasonable self-control. The actions of the applicant, as described in a statement of facts with which she expressly agreed and as depicted on CCTV footage, were borne of contemplative thought.

59. [96]

    The sentencing judge was alive to the entirety of what Dr Furst had said, not merely that which concerned the question of self-control. His Honour had regard to all of what was said that potentially bore upon whether there was a causal link between the mental condition and the offending. It was open to the judge to reject that there was.

60. [97]

    There was nothing ambiguous or lacking in clarity in the way Dr Furst expressed his opinion as to this potential link. The fact is it was not a link that was established in a compelling way. That may explain the rather muted way in which submissions were advanced on the subject beyond the loss of control aspect.

61. [98]

    The judge was prepared to find, nonetheless and as the Crown had conceded, a degree of diminution of the applicant’s moral culpability. That did not dictate any significant reduction in the emphasis to be given to general deterrence. As Hunt CJ at CL observed in R v Wright (1997) 93 A Crim R 48 at 51, where an offender acts with knowledge of what they are doing and with knowledge of the gravity of their actions, the moderation of the need for general deterrence need not be great.

62. [99]

    It is not in the interests of justice and nor otherwise is there any principled basis upon which this Court should receive a further expression of Dr Furst’s opinion which is to the same effect, albeit possibly in more emphatic terms.

63. [100]

    The second limb of the applicant’s argument relates to the influence of her childhood experiences. The manner in which the sentencing judge rejected the submissions that sought to characterise the applicant’s childhood experiences as warranting a reduction of moral culpability on the basis identified in Bugmy v R was well open to him. There was no firm evidentiary basis for otherwise concluding that such a finding was warranted.

64. [101]

    The tenuous basis of the applicant’s argument on this second-limb issue was exposed by Mr Odgers’ concession that Dr Furst had not expressly asserted a causal link between the childhood experiences and the offending but that “it may reasonably be inferred” that Dr Furst had at least thought about it (see above at [81]).

65. [102]

    The tender of the report of Dr Furst of 7 May 2021 should be rejected. It follows that this ground must fail.

Ground 2 – error as to the term of imprisonment imposed in a “comparable” case

1. [103]

   The parties referred the judge to sentences imposed in some other cases. They acknowledged the limitations in doing so but referred to the cases as providing a “yardstick”. The defence provided a “schedule of [seven] comparative sentences for guidance as to the appropriate penalty”. The cases involved sentences (or starting points before discounting where there was a plea of guilty) ranging from 21 years to 28 years. The Crown referred to three cases that “may assist to some degree in that they all involve stabbing murders in the context of a prior domestic relationship”. The cases were R v Villaluna [2017] NSWSC 1390 (a starting point of 40 years); R v Cullen [2015] NSWSC 768 (a sentence of 30 years); and R v Mulvihill [2014] NSWSC 443 (a sentence of 29 years). [49] While the Crown selected cases on the basis of the characteristics referred to, it did not suggest that they established a “range” of sentencing for murder offences of this particular type.

2. [104]

   The Crown’s written submissions erroneously referred to the sentence in R v Cullen as being 30 years and 6 months instead of 30 years. The judge inadvertently repeated the error in his sentencing remarks. [50]

3. [105]

   Mr Bellanto QC made submissions about each of the cases relied upon by the Crown and referred to the Crown’s written submissions about them. It appears he did not notice the error. [51]

4. [106]

   The judge acknowledged the limitations on using sentences imposed in other cases, citing Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]-[54]. In relation to the cases referred to by the defence he said that “most of them involved a spontaneous, albeit very violent, act and did not display the level of deliberateness shown by this offender”. He then made comments about the three cases referred to by the Crown. He said there were some similarities between the present case and R v Villaluna, but it was not as serious. He referred to R v Cullen and R v Mulvihill and said:

5. [107]

   The applicant now contends that the error in referring to the sentence imposed in R v Cullen as being one of 30 years and 6 months instead of just 30 years was one that may have affected the exercise of the sentencing discretion, in part because the judge said it was “comparable”. It was submitted that this requires the Court to engage in a fresh exercise of the sentencing discretion in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].

6. [108]

   This ground is sadly lacking in merit and it is unnecessary to dwell upon it. Having regard to the limited utility in referring to sentencing in other cases, a point which the judge well recognised, such a trivial error cannot conceivably have had any bearing upon the exercise of the sentencing discretion: Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255. [52]

7. [109]

   This ground must be rejected.

Ground 4 – manifest excess

1. [110]

   The applicant’s contention in respect of Ground 3 is that the judge “erred in taking into account these 3 cases [i.e. those referred to by the Crown] in failing to ensure reasonable consistency of sentence”. It was submitted that the offenders in those cases did not have subjective factors operating in mitigation of penalty as there were in the present case, namely prior good character, mental health issues, remorse, low risk of serious reoffending, and onerous conditions of incarceration. It was submitted that giving inadequate account to the applicant’s favourable subjective matters led to the imposition of a manifestly excessive sentence. [53]

2. [111]

   The applicant sourced the requirement for “reasonable consistency” to Hili v The Queen; Jones v The Queen at [47] and [49].

3. [112]

   In submissions at the hearing of the application, Mr Odgers argued that the judge gave excessive importance to the objective seriousness of the offending in comparing the cases. His Honour regarded the present case as “not as serious” as R v Villaluna, “comparable” to R v Cullen, and “slightly more serious” than R v Mulvihill. It was contended that error was apparent when the starting point for the sentence in the present case, with the favourable findings as to subjective matters, was 34 years, whilst, absent those subjective matters, the starting point or sentences in the other cases were 40 years, 30 years and 29 years respectively. [54]

4. [113]

   Mr Odgers SC confirmed at the hearing of the application that Ground 4 was based solely upon the applicant’s sentence being assessed in the light of R v Villaluna, R v Cullen and R v Mulvihill. [55]

5. [114]

   The Crown submissions involved analysis of features of the three cases with comparison to the applicant’s case in support of its contention that the applicant’s sentence was not manifestly excessive.

6. [115]

   The premise underlying the applicant’s argument in relation to both grounds is that a requirement for “reasonable consistency” obliged the judge to determine upon a sentence with the relative sentences imposed in two or three other cases in mind and with an allowance made in the applicant’s favour for the subjective mitigation to which she was entitled.

7. [116]

   The applicant’s argument is to the effect that the starting point for her sentence should have been less than that imposed in R v Cullen because that case was found by the judge to be of “comparable” seriousness and the applicant had some subjective matters in her favour. In other words, the fact that the starting point for her sentence (34 years) was higher than the sentence in R v Cullen (30 years) means that there has been a failure to comply with a requirement for reasonable consistency and/or a misapplication of principle in some respect which cannot be precisely identified.

8. [117]

   The reference in Hili v The Queen; Jones v The Queen at [47] to “reasonable consistency” was in the plurality’s quotation from the judgment of Gleeson CJ in Wong v The Queen (2001) 207 CLR 584 at 591[6]; [2001] HCA 64. Their Honours immediately stated (at [48]) that, “[c]onsistency is not demonstrated by, and does not require, numerical equivalence”. It may be noted as well that “comparable” does not mean “identical”; it is defined in the Macquarie Dictionary as meaning “capable of being compared” or “worthy of comparison”.

9. [118]

   The Crown did not refer to the three cases as establishing a “range” of sentences. It referred to the limitation of comparisons with other cases, cited Hili v The Queen; Jones v The Queen at [53]-[54], and said “nevertheless the [three] cases may assist to some degree in that they all involve stabbing murders in the context of a prior domestic relationship”. The judge considered the cases in that way, concluding his remarks in relation to the exercise by saying: [56]

10. [119]

    There was no error in the way in which the judge considered the cases to which he had been referred. He would have fallen into error if, for example, he had identified some other case as identical in objective seriousness and then made adjustments based upon differences in subjective cases in order to arrive at the sentence he would impose. (See RCW v R (No 2) [2014] NSWCCA 190; (2014) 244 A Crim R 541 where this Court quashed a sentence assessed in that way.) Such an approach is the antithesis of instinctive synthesis: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.

11. [120]

    Mr Odgers did not suggest that the foregoing was the approach the judge ought to have taken. However, it is the practical effect of the “reasonable consistency” approach his Honour is alleged to have erroneously breached. But just as such an approach is erroneous at first instance, it is equally so in an appellate context in assessing whether a sentence is unreasonable or unjust and thereby manifestly excessive (or inadequate).

12. [121]

    These grounds must be rejected.

Orders

1. [122]

   I propose the following orders:

2. [123]

   DAVIES J: I agree with R A Hulme J.