LIU v R

1. [1]

   ADAMSON JA: I agree with Campbell J.

2. [2]

   CAMPBELL J: The applicant seeks leave to appeal from the sentence passed on him in the District Court of New South Wales at Parramatta on 2 July 2021 (O’Rourke SC DCJ) for the offence of causing grievous bodily harm with intent to murder, contrary to s 27 Crimes Act 1900 (NSW). The offence carries a maximum penalty of imprisonment for 25 years and a standard non-parole period of 10 years (s 54A(1) and item 3, table Division 1A Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”)). The learned sentencing judge imposed a sentence of imprisonment of 12 years duration commencing on 31 March 2020 and expiring on 30 March 2032 with a non-parole period of 7 years and 3 months expiring on 30 June 2027, when the applicant will be first eligible for release on parole.

3. [3]

   The applicant relies upon a single ground of appeal: that the sentencing judge erred by failing to apply, or properly apply, principles in relation to advanced age in the sentencing process.

Background

1. [4]

   The applicant was born in China in August 1938, and he was aged 81 years and 6 months when the offending occurred sometime after midnight on 31 March 2020. The victim, Ming Zhu Lu was born in April 1947 and was 72 years and 11 months of age. They had married in 2014 after meeting in 2010. It was the applicant’s second marriage. He was a widower when they met.

2. [5]

   The applicant was sentenced on the basis of agreed facts signed on 3 March 2021 (AF), which her Honour summarised in her reasons for judgment (J). What follows is a summary taken from her Honour’s judgment.

3. [6]

   After marrying, the applicant and the victim resided together in rented premises. In 2017, the victim became carer of the wife of Xiao Yang, who was a witness in the matter. When his wife passed away, Mr Yang invited the victim and the applicant to reside with him in his home at Ermington, which invitation the applicant and the victim accepted. After moving in, the victim undertook domestic duties around the home.

4. [7]

   The applicant became jealous of what he perceived to be the victim’s attention to Mr Yang. He regarded Mr Yang as a rich man and had perceived that the victim’s attitude changed toward him after they took residence in Mr Yang’s house. She became cold to him while she was courteous to Mr Yang. The applicant told police after his arrest, “at night [his wife] was [his] wife because they slept in the same bed, however, during the day, [his wife] would be Yang’s wife”. He told police that he had formed the belief that Mr Yang wanted him to leave and the victim to remain. The applicant said he tried to persuade his wife to leave with him, but she refused.

5. [8]

   On 30 March 2020, the evening before the offending, the victim and the offender retired to their bedroom separately. After midnight, the offender lay awake ruminating over “all the issues with Yang and the victim” (AF 5). He rose to go to the bathroom and as he passed the kitchen on his return, he grabbed the type of kitchen mallet with sharp protrusions used to tenderise meat, and a long kitchen knife. When he returned to the bedroom, he commenced hitting the victim forcibly about her head and face with the mallet.

6. [9]

   His initial intention was to beat his wife to death with the mallet and then use the knife to kill himself by slitting his wrist. During his attack on his wife with the mallet, which the sentencing judge described as ferocious (J 7), his wife awoke and was calling out for help. The victim sat up in bed and saw the offender armed with a knife pointed at her. He then stabbed her around the sternum, the blade tracking downwards into her abdomen.

7. [10]

   It seems that the victim was able to disarm the offender of the knife and throw it under the bed. The offender continued to attack her with the mallet causing her to fall from the bed.

8. [11]

   Mr Yang was roused from his sleep by the victim’s cries for help and tried to intervene. He entered the bedroom, saw the victim on the floor and observed the applicant continuing to attack her with the mallet. He remonstrated with the applicant who chased him out of the bedroom. Mr Yang locked himself in his bedroom and telephoned his daughter who caused her husband to call triple zero.

9. [12]

   On his way back to the bedroom, the applicant scrawled a message in the Mandarin language on the hallway wall, which was translated as:

10. [13]

    The victim’s injuries were very serious. Injuries to her right eye included a blown right pupil and dislocation of the right lens which was surgically replaced. There were significant lacerations about the right eye. The victim also suffered facial fractures to the orbital skeletal structure forming her eye socket, the maxillary area of her face and her nose. She was left with significant facial asymmetry which requires further plastic surgery. The abdominal stab wound was life threatening, involving lacerations to internal organs including the transverse colon mesentery and involving heavy internal bleeding for which the victim underwent treatment by way of laparotomy. From the mallet blows, the victim suffered twenty-one lacerations to the top of her head and two larger wounds to the left frontal aspect of her head and the top of her head respectively. All lacerations required surgical repair. The lacerations to the victim’s wrist were severe involving, on the left side lacerations of the median nerve, radial artery, ulnar artery, muscular lacerations and complete lacerations of the ulnar digital nerve and radial digital artery supplying her left thumb. The extensor tendons and muscles of her right wrist were severed. Her right thumb was lacerated. All of these injuries also required surgical repair. The victim has ongoing median nerve deficits involving a loss of sensation, which exposed her to accidental burns because of a lack of appreciation of changes in temperature.

11. [14]

    The victim was treated in the intensive care unit at Westmead Hospital until 6 April 2020. She was discharged from Westmead Hospital on 28 April 2020 and transferred to Auburn Hospital for rehabilitation. She remained there until her discharge on or about 20 May 2020. She continued to receive outpatient rehabilitation treatment until 8 October 2020. By then, she had made a good recovery in respect of her right hand injuries with only minor deficits, but with ongoing significant deficits, as I have said, affecting her left hand.

Subjective circumstances

1. [15]

   The applicant did not give evidence, but his subjective circumstances were put before the District Court by way of the report of Mr Jason Borkowski, Forensic Psychologist, dated 28 June 2021 (Exhibit 1). As there is no challenge to the sentencing judge’s findings of fact, it is unnecessary to summarise that report fully. Rather, I will refer to the findings her Honour made about the applicant’s subjective case. I should say, however, that, as her Honour recorded (J 11), Mr Borkowski expressed the opinion that as a result of the breakdown in his relationship with the victim because of her preference for Mr Yang, as he perceived it, the applicant developed an Adjustment Disorder with disturbance of mood and usual conduct which contributed to his offending. But the sentencing judge rejected this opinion (J 13).

2. [16]

   The applicant was born in Shanghai, China in 1938 and raised in a stable family as the third in a sibship of six. His father was very strict, disciplining the children with corporal punishment which made the applicant “fearful” of his father in his formative years. However, he maintained contact with both his parents until they passed away; his father in 2001 and his mother in 2008.

3. [17]

   He lived at home until he married in 1967 at the age of 44. He and his wife had one child, a son, who migrated to Australia in his adulthood. After his wife’s death in 2005, the applicant emigrated to Australia. He was then aged 69. He lived with his son’s family until he married the victim in 2014. A nephew had introduced him to the victim in 2010.

4. [18]

   After completing his schooling in China, he obtained what appears to be the equivalent of a Bachelor of Engineering in mechanical engineering from the Shanghai Mechanical College. He worked in this profession for an automotive manufacturer until his retirement at age 60. He supported himself in retirement, both in China and in Australia, “through a retirement pension” (J 25).

5. [19]

   After moving to Australia, he suffered significant orthopaedic injury when he was run over by a car. He underwent a hip replacement in 2009 and suffers backpain and right sided sciatica because of a lumbar disc protrusion. These injuries restrict his mobility. When sentenced he was receiving medication for the management of cardiovascular disease including high cholesterol. He has no past history of mental illness, and as I have said, her Honour rejected Mr Borkowski’s opinion to the contrary.

6. [20]

   Her Honour accepted the applicant’s statement to Mr Borkowski that he was “regretfully sorry” to the victim and did not understand why he offended. He attempted suicide to “pay [the victim] back with his own life” (J 26). Mr Borkowski assessed the applicant as a low risk of reoffending.

7. [21]

   The offender pleaded guilty at the earliest opportunity in the Local Court. He has no prior convictions either in Australia or China.

Reasons for sentence

1. [22]

   Her Honour characterised the offending as “an offence of serious domestic violence where [the applicant] sought to control and dominate his wife, as if he had an entitlement to do so” (J 10). Her Honour found that the offending required denunciation and “condign punishment”. She remarked that the breakdown of a marriage or domestic relationship “cannot be allowed to justify vengeful violence of any kind”. Both general deterrence and specific deterrence had a role to play in the circumstances of the case, the former significantly.

2. [23]

   Her Honour referred to the maximum penalty, the standard non-parole period, and the provisions of s 21A Sentencing Act. However, while acknowledging that the victim’s injuries “were extraordinarily serious”, her Honour found “no aggravating factors” given there was no evidence from which she could make a finding about prognosis.

3. [24]

   So far as mitigation is concerned, her Honour referred to the applicant’s entitlement to a 25 percent discount for the utilitarian value of his plea of guilty; his prior good character; and the relatively spontaneous nature of the offending, there being no evidence of planning.

4. [25]

   Her Honour also referred to the consideration that the applicant was “elderly”. She stated (J 12):

5. [26]

   Having rejected Mr Borkowski’s opinion that an adjustment disorder contributed to the offending because the diagnosis “dresses up what was really at play” (J 13), her Honour concluded:

6. [27]

   The sentencing judge accepted that the applicant’s guilty plea and his expressions of regret and concern for the victim to Mr Borkowski were “some evidence of genuine remorse”. Given his previous “unblemished life”, the ongoing support of his son and family and his age, her Honour accepted that the applicant had good prospects of rehabilitation.

7. [28]

   The learned sentencing judge assessed the objective seriousness of the offending as above mid-range. In this regard, she took into account: the attack occurred in the middle of the night when the victim was asleep; it involved three weapons, being the meat tenderiser and two knives; it was forceful and ferocious; a large number of blows were struck with the mallet in an ongoing and sustained attack; and the type, nature and number of injuries inflicted (J 7).

8. [29]

   Her Honour also said she was “cognisant of the fact that the non-parole period ultimately imposed must reflect the objective gravity of the crime, taking into account the subjective features and be ‘the minimum period for which the offender must be kept in detention in relation to the offence’” (J 13).

9. [30]

   Her Honour, however, made a finding of special circumstances reducing the statutory ratio between the non-parole period and “the head sentence” to one of “just over 60 percent”. Her reasons were (J 14):

10. [31]

    It is obvious that her Honour took a notional starting point of imprisonment of 16 years, which she reduced to 12 years for the early plea with a non-parole period of 7 years and 3 months.

Applicant Submissions

1. [32]

   In advancing the sole ground of appeal, that the learned sentencing judge failed to apply or properly apply principles in relation to advanced age, Mr T Game SC, who appeared with Ms E Sullivan for the applicant, relied in particular on Holyoak v R (1995) 82 A Crim R 502 at 507. He also relied on the distillation of principle by Steytler P in Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim 539 at [54].

2. [33]

   Learned senior counsel advanced five principal arguments: first, advanced age may put a prisoner at a disadvantage in custody rendering it more onerous; secondly, the prospect of spending the last years of one’s life in custody increases the mental burden of imprisonment quite apart from any physical difficulties; thirdly, the relevance of general deterrence is reduced because the public will appreciate the added burden of a gaol sentence on a prisoner of advanced years; fourthly, there may be little or no need at all for considerations of specific deterrence because of the applicant’s old age and likely circumstances upon release; and fifthly, for an elderly person “each year spent in prison represents a substantial portion of the remaining years of life which [he or she] may expect”: The Queen v Hunter (1984) 36 SASR 101. It was submitted that the authorities indicate that a court should not in effect impose a life sentence which was not otherwise available for the offence or the offender. It was submitted that the sentencing judge did not apply or direct her mind to any of these principles, and indeed contravened them by giving the weight she did to general and specific deterrence. It was argued that her Honour gave no considered contemplation to the significant added burden of custody on a very elderly person. It was put that the mitigatory effects of the applicant’s age “was no peripheral matter”.

3. [34]

   In oral argument, having referred to the reduction in the statutory ratio allowed by the sentencing judge for special circumstances, learned senior counsel argued [7.37-43T]:

4. [35]

   Mr Game read the affidavit of his instructing solicitor Danka Durovic affirmed on 10 November 2022 (other than paragraph 3) on the usual basis lest it were necessary for the Court to re-sentence.

Crown submissions

1. [36]

   Mr E Balodis, Crown Prosecutor, accepted that the relevant principles were correctly stated in Holyoak v R, and Gulyas v Western Australia. However, he emphasised that on the authorities, advanced age did not make considerations such as general deterrence and specific deterrence irrelevant. Nor did the added burden of imprisonment for an aged offender displace proportionality or make it irrelevant.

2. [37]

   Counsel also pointed out that the argument on appeal in relation to the centrality of the applicant’s advanced age was quite different from the presentation of the plea at first instance. He referred to Zreika v The Queen [2012] NSWCCA 44 223; (2012) A Crim R 460 at [81]. At first instance the emphasis had been placed upon the offender’s good prospects of rehabilitation and his advanced age had been advanced in relation to the question of special circumstances. The sentencing judge accepted these arguments.

3. [38]

   It was also pointed out that there was no specific evidence about life expectancy before the sentencing judge and although there was material in Mr Borkowski’s report concerning certain orthopaedic injuries affecting the applicant’s mobility, the general thrust of the evidence was that the applicant regarded himself as being in good physical health. It was also put that the sentencing judge acknowledged the significance of the offender’s age during oral submissions (Crown Appeal Submissions at [30]). It was submitted that her Honour was correct to bear in mind the importance of proportionality having regard to the objective seriousness of the offending. There was no error disclosed in her Honour’s treatment of the applicant’s age.

Determination

1. [39]

   As I have pointed out there is no disagreement between counsel about the relevant principles to be applied. In my opinion they are, with respect, accurately and well summarised by Steytler P in Gulyas v Western Australia at [54]. I will set out the passage in full:

2. [40]

   In my judgment it is clear from the manner in which Steytler P expressed the principles applicable to the significance of advanced age in sentencing that they are nuanced and not capable of mechanical application. As is obvious, there is no principle that the advanced age of an offender leads automatically to the imposition of a lesser sentence than the objective circumstances of the offending require.

3. [41]

   Looking at each of Steytler P’s four principles, moral culpability is only reduced on account of advanced age “when there is an age related mental impairment” or the like, of which there was no evidence before the learned sentencing judge. Her Honour rejected the only evidence of a mental condition put before her in the opinion of Mr Borkowski being the diagnosis of an Adjustment Disorder and no complaint is made about her finding in that regard. It was not age related in any event.

4. [42]

   The consideration that advanced age will make imprisonment more arduous for an offender than is normal will usually depend upon “continuous ill health” or some other age related state as explained by Steytler P. There was evidence before the sentencing judge of pre-existing orthopaedic injuries affecting the applicant’s mobility but his overall presentation was that he enjoyed generally good health for his age. There was certainly nothing to suggest anything amounting to “physical or mental frailty” in the evidence led at first instance. To the extent to which Ms Durovic’s affidavit may provide such evidence on the hearing of the application for leave, we are not entitled to receive that evidence. First, error has yet to be established; and secondly it is not evidence of the applicant’s progress towards rehabilitation of the type usually received for the purpose of re-sentencing after error has been established: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2].

5. [43]

   Steytler P’s third principle relating to the effect of an offender’s appreciation that a lengthy sentence is likely to destroy any reasonable expectation of useful life after release, upon which much reliance was placed in the case at hand, is expressly made subject to the principle of proportionality: the punishment must still fit the crime. And this central consideration was obviously at the front of the learned sentencing judge’s mind.

6. [44]

   The same consideration applies to Steytler P’s fourth principle. Deterrence and denunciation remain important, as her Honour found. While the general public may understand a degree of leniency where there are factors associated with age justifying it, this consideration also remains subject to proportionality. As I have said, other than age itself, there was no evidence of a specific age related factor affecting the applicant other than the limitation of mobility due to pre-existing physical injury to which I have referred. This was not a factor which, in my judgment, engaged these principles. In any event, the sentencing judge referred to it and may be taken to have had regard to it.

7. [45]

   In Holyoak v R while discussing the possible ways in which advanced age might be mitigatory for sentencing purposes, Allen J said (at 507):

8. [46]

   The sentencing judge was not referred to either Holyoak v R or Gulyas v Western Australia. The only decision she was referred to concerning the effect of advanced age as a mitigating factor was the Crown appeal in the matter of R v Mammone [2006] NSWCCA 138, where James J (with whom McClellan CJ at CL and Hall J agreed), observed (at [45]), “I would be prepared to accept that the advanced age of the respondent entitled him to some discount in sentencing, on the basis that serving a term of imprisonment would be more than usually onerous for him”. After observing that care must be taken to avoid double counting of mitigating factors in the determination of the length of the sentence and by finding special circumstances by reference to R v Simpson (2001) 53 NSWLR 704 at [63]-[65], his Honour found special circumstances on the basis of the offender’s advanced age and a degree of ill health (at [54]) reducing the non-parole period to 60 percent of the head sentence. This was exactly the approach urged upon the learned sentencing judge by the applicant’s then counsel (MFI 1, Offender submissions 4-5; Sentence Transcript 9.30T; 10.40T). And it is evident that the sentencing judge acceded to that submission.

9. [47]

   In my own judgment, this approach was open to her Honour. I appreciate that the applicant is entitled to be sentenced according to law: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]–[44]. But what the law required was for her Honour to have regard to the applicant’s advanced age as a mitigating factor. This she did, as the passages from her judgment I have set out above illustrate (at [25] and [30] above). As the passage from Mr Game’s oral submission I have set out above (at [34]) illustrates, it was not necessary that the sentencing judge’s consideration of the factor had a demonstrable effect upon each of the components of the sentence imposed. As in R v Mammone, it was permissible for her Honour to have regard to advanced age as a special circumstance serving to reduce the minimum time that the applicant would otherwise have to serve in a measurable way. Treating advanced age, as the sentencing judge was asked to do, as a special circumstance avoided any double counting in his favour but had a real and tangible effect upon the minimum time he will be required to serve. This is entirely consistent with the approach that Mr Game urged upon the Court at the hearing of this appeal.

10. [48]

    As the plurality said in Kentwell at [42]:

11. [49]

    For these reasons the orders I propose are:

    1. (1)

       Grant leave to appeal on sentence;

    2. (2)

       Appeal dismissed.

12. [50]

    McNAUGHTON J: I agree with Campbell J.