LEUNG, Simon Yuk v R

Facts 9A statement of Agreed Facts dated 28 June 2013 was tendered at the sentencing hearing, which was in the following terms: "1. On Monday 26 November 2012, Yong Zong LU ("the victim") a tourist bus driver had parked his bus registration number XXXXXX (NSW) along Reiby Place, Sydney NSW. 2. At approximately 5.09 pm the accused, Simon Yuk LEUNG ("LEUNG"), the driver of a grey Tiguan, registration number XXXXXX (NSW) parked his vehicle directly in front of victim's bus in a non-stopping zone. 3. When the victim later attempted to move his bus, he was unable to do so due to there being insufficient room. LEUNG was parked in front of his bus and there was another bus parked closely behind the victim. The victim exited his bus and made gestures to LEUNG to move his car. The victim then entered his bus and switched on the right indicator and waited up to a minute for LEUNG to move his car. 4. As LEUNG did not move his car, the victim exited his bus and walked over to the driver's side of LEUNG's car. At the time, LEUNG was seated in the driver's seat of his car and had his windows closed. The victim said to LEUNG in English "excuse me" and made a gesture with his hands indicating LEUNG move his car. 5. LEUNG, dressed in a black business suit, exited his car in possession of a black metal extendible baton. LEUNG and the victim began to argue. After about 15 seconds LEUNG lifted his right leg, kicked the victim in the left leg and struck him with the baton on the left shoulder, causing the victim to become unbalanced. The victim moved backward moving his hands over his face in a defensive gesture and kept moving away from LEUNG. 6. LEUNG moved towards the victim throwing a number of kicks to the victim's leg, punches and strikes which impacted with the victim's head and upper shoulder area. LEUNG struck the victim repeatedly to the face using his baton. The victim in self defence threw a number of punches at LEUNG. The entire incident was captured on close circuit television and witnessed by a number of independent witnesses. 7. As a result of the assault, the victim was conveyed to St Vincent's Hospital Sydney to undergo treatment. The victim sustained a 4cm laceration to the top of his skull which required stitches and facial haematomas. 8. The police were called to the scene. LEUNG was arrested and cautioned. The black metal extendible baton was seized by police and found to contain blood on it. 9. At 11.22pm, LEUNG participated in an electronic record of interview with police at the Rocks Police Station and made the following admissions: (i) He had parked his car in a non-stopping zone; (ii) He did not move his car because he was waiting for his partner to come back; (iii) He purchased the extendible baton a few years ago in Melbourne when he was a licensed martial arts instructor; (iv) He had trained for 8 years in martial arts gaining a first level black belt and trained in punching and kicking; (v) He kept the baton in his car because he was of the view the road and people in Sydney were unsafe and wanted to protect himself; (vi) He kicked and punched the victim and hit the victim with his baton in the shoulder and head area and (vii) He had over reacted and thought he acted in that manner due to some money issues he had the previous night with his uncle." 10The sentencing judge observed that the victim suffered a 4 cm laceration to the left side of the forehead requiring stitches, and bruising to the throat and the leg of the victim. His Honour observed: "Whilst the physical and psychological injury was towards the low end of the scale for such wounding injuries, they were nonetheless serious". (Remarks on Sentence at p 4) 11A report of a neurologist, Dr Peter Puhl dated 15 February 2013 was tendered in evidence. It noted that the victim had suffered post-traumatic benign positional vertigo, and that he had some headaches and sensory changes on the left side of his face, but no other objective neurological deficits. 12The report noted that he consequently experienced some depression and post-traumatic stress. 13The sentencing judge had a Victim Impact Statement from the victim dated 27 June 2013 (Exhibit 3). 14Also tendered in evidence was CCTV footage (Exhibit 1) showing the attack upon the victim. The footage was played during the hearing of the appeal. 15The sentencing judge concluded that the facts revealed two objectively serious offences: Remarks on Sentence at p 3. 16The sentencing judge noted that the attack on the victim was unprovoked, the victim having only asked the applicant to move his motor vehicle so that he could move his bus. His Honour stated: "Taking these factors in consideration I think the objective seriousness of the offence is toward the middle range for such offending. The possess a prohibited weapon offence - a metal extendable baton in this offence is also very serious, the baton being designed to be used on people either in attack or defence. It was not a knife or a gun, but given the purpose for which it was designed it is capable of inflicting injury on another, but as a weapon falls towards the low end of the scale of weapons." (Remarks on Sentence at p 4) 17In considering sentence, his Honour accepted medical evidence (referred to below) that the applicant, at the time of the offence, suffered from what was referred to as "moderate" Asperger's Syndrome - an autism spectrum disorder. 18In relation to subjective factors, his Honour noted that the applicant was 33 years of age and that he had been educated in primary school in Hong Kong before moving to Australia to complete his primary and senior school education. 19After leaving school he completed an accounting degree at Macquarie University. He had held various accounting type jobs with chartered accountants and then a mortgage and property business. He then worked in sales for a company for three years. The applicant met his fiancée some years before. She had a fashion and alterations business and he started helping her in that business. 20The sentencing judge noted that the applicant was remorseful for his offending. He had given evidence before the sentencing judge and expressed the fact that he was "very sorry that he caused the injuries to the victim and that what he did was an 'overreaction'": Remarks on Sentence at p 5. 21The sentencing judge recognised and recorded that the diagnosed mental disorder from which the applicant suffered was relevant to the question of deterrence in the sentencing exercise and was a mitigating factor in that less weight was to be given to deterrence. 22His Honour also stated that in his view the applicant's need for ongoing treatment was a special circumstance which permitted him to vary the statutory ratio between the non-parole and parole periods. 23His Honour also accepted the evidence of Dr Canaris, psychiatrist, that the applicant was unlikely to re-offend, and noted that he had no criminal record. The sentencing judge further noted that the criminal acts in respect of Count 1 were spontaneous and they were not part of any planned criminal activity. 24His Honour had regard to references that were tendered on behalf of the applicant which attested to his prior good character. 25His Honour had regard to a number of factors in determining the sentence to be imposed with respect to Count 1. These included: the nature of the weapon, its purpose and the circumstances of the wounding including the degree of violence that was involved, the ferocity of the attack on the victim, and the fact that it was unprovoked and in a public place and the applicant's mental conditions. The sentencing judge considered that the only appropriate sentence was one of full-time custody: Remarks on Sentence at p 7.

Ground 1: The sentencing judge erred in imposing a fixed term 26In relation to Ground 1, the submission was that his Honour erred in imposing a fixed term with respect to the offence of possess a prohibited weapon having regard to the provisions of s 45(1) of the Sentencing Act. 27The Crown properly conceded that the sentencing judge erred in imposing a fixed term. The Crown also noted that his Honour did not give reasons for declining to set a non-parole period as required by s 45(2) of the Sentencing Act.

Ground 2: The sentence in relation to the prohibited weapon is manifestly excessive 28In the submissions for the applicant it was observed that before the application of the 25% discount for the applicant's plea, the starting point would have been 12 months for the prohibited weapons offence. It was noted that his Honour correctly observed that the weapon was at the "low end" of the scale. Had he been sentenced for this offence alone, it was submitted for the applicant that it was most unlikely that he would have received a custodial sentence. 29The written submissions for the applicant referred to sentencing statistics published by the Judicial Commission and annexed a copy of the statistics to the submissions. Whilst it was acknowledged that caution must be applied in the use of sentencing statistics, it was submitted they nonetheless show that the overwhelming majority of such offences are dealt with summarily. 30In its response, the Crown in its written submissions submitted that the statistical range available was so low as to provide no real assistance. 31In terms of the criminality involved in both the prohibited weapons offence and the reckless wounding offence, the submission for the applicant was that the criminality involved in the former was subsumed by the latter. It was submitted that the effect of the three month period of accumulation was that the applicant had been "doubly punished" for the substance of the prohibited weapons offence. Reliance was placed upon the relevant principle stated in Pearce v R (1998) 194 CLR 610 at 612, [43]. 32In response, the Crown submitted that there were no common elements between the two offences and that the criminality of the possession of the prohibited weapon was separate and distinct from the reckless wounding offence. Further, the Crown submitted that the decision to accumulate in respect of sentences is fundamentally an exercise within the discretion of the sentencing judge. 33The applicant's written submissions acknowledged that whilst strictly not an "element" of the s 35(4) offence, the Crown relied upon the use and therefore the possession of the extendible baton to particularise the s 35(4) offence.

Ground 3: The sentencing judge erred in his approach to the applicant's psychiatric condition 34In the submissions for the applicant it was observed that the sentencing judge accepted the evidence relating to the diagnosis of the applicant's Asperger's syndrome, being the evidence of both Dr Canaris and Mr Milic. I note that the applicant was only diagnosed with that condition following the subject offence occurring on 26 November 2012. However, it was submitted that his Honour did not explicitly refer to the applicant's anxiety disorder, other than quoting passages in which the latter disorder was adverted to by both Dr Canaris and Mr Milic. 35It was acknowledged in the submissions for the applicant that the applicant's "psychiatric condition" was taken into account when assessing the importance of general deterrence. However, error was said to have arisen in the sentencing judge's failure to take the evidence of the applicant's medical condition into account when assessing (i) the objective seriousness of the offence and (ii) the impact that a custodial sentence would have on him. These, it was observed, were matters which counsel then appearing for the applicant directed his Honour's attention to. 36The issue of mental illness or intellectual/psychological disability, and its relevance to sentencing, was addressed in the applicant's submissions by reference to well known authorities of this Court, including in particular: R v Hemsley [2004] NSWCCA 228 and R v Israil [2002] NSWCCA 255 and R v George (2004) 149 A Crim R 38. 37The submission was that the sentencing judge erred in failing to take into account the evidence which established that the Asperger's condition contributed to the commission of the offence in question in a material way. Accordingly, the submission was that the applicant's moral culpability was reduced on account of his impairment. 38It was also submitted for the applicant that a custodial sentence would weigh more heavily on a person who was a "mentally ill person": Written Submissions at 6.12. In this respect it was submitted that the sentencing judge did not make any reference to how the applicant's psychiatric condition would impact upon the applicant's experience of custody and, in particular, no reference was made to the observations of Dr Canaris both in his report and in oral evidence on this aspect. 39The Crown observed that the sentencing judge did take into account the applicant's "psychiatric condition" in a number of ways as set out in its written submissions at paragraph [21]. 40The Crown submitted that the approach taken by the sentencing judge was consistent with the application of the relevant principle: Crown's Written Submissions at [22]. 41In relation to the issue of the impact of the applicant's mental condition on his experience of custody it was submitted that his Honour had taken that aspect into account insofar as his Honour's remarks record: "... balancing this with the subjective factors in the offender's favour, including his moderate Asberger's [sic] Syndrome which will impact upon his custodial sentence ..." 42The Crown submitted that no error had been established in the consideration of the applicant's mental condition and the ground of appeal should be dismissed. In the event that the Court determined that there was error, then the Crown submitted the Court would not be satisfied that some lesser sentence is warranted in law: s 6(3) of the Criminal Appeal Act.

Grounds 4 and 5 43The written submissions on behalf of the applicant and the Crown both addressed matters in respect of Grounds 4 and 5. 44I do not here set out the submissions in relation to Ground 4 although, of course, they have been fully considered. 45In relation to Ground 5, it was submitted that the sentencing judge did not give consideration to all possible alternatives before imposing a custodial sentence. This, it was contended, resulted from the imposition of a manifestly excessive sentence on the second count, the erroneous accumulation of that sentence and the failure to give effect to the discount for the plea of guilty. 46The written submissions refer to the matters raised in the submissions before the sentencing judge. However, the submission to this Court was that there was no indication that his Honour actually gave proper consideration to "all possible alternatives" as required by s 5(1) of the Sentencing Act. 47The Crown observed in its written submissions at paragraph [28] that at no stage was it submitted to the sentencing judge that a sentence other than a term of imprisonment was appropriate for the offence of reckless wounding. The submission for the applicant was that his Honour should make an intensive correction order or a suspended sentence. 48The Crown referred to the approach to be taken in the sentencing process as set out in R v Zamagias [2002] NSWCCA 17 at [24], [25], [26] and [28]. 49The Crown submitted that the sentencing judge's determination of a sentence of 25 months for the reckless wounding offence precluded any alternative to full-time imprisonment. The Crown submitted there was no error in the approach taken and that this ground of appeal should be dismissed. 50The Crown's overall submission was that there was no error in Grounds 2 to 5 in the appeal but that in the event error had been demonstrated, then no lesser sentence is warranted in law and should have been passed. It was submitted that should leave to appeal be granted, the appeal should be dismissed.

Consideration 51I will firstly consider the grounds of appeal relied upon in relation to the principal offence, the offence of reckless wounding (Grounds 3, 4 and 5). I will then proceed to deal with the sentence in respect of the offence under s 7(1) of the Weapons Prohibition Act (Grounds 1 and 2).

Ground 3: The sentencing judge erred in his approach to the applicant's psychiatric condition 52The central submission made on behalf of the applicant as noted above, was that the sentencing judge erred in failing to take into account the expert evidence in respect of the applicant's psychiatric condition when assessing: (1) The objective seriousness of the offence; and (2) The impact that a custodial sentence would have upon him. 53It is a well established sentencing principle that mental illness or intellectual/psychological disability is a relevant factor in sentencing an offender. Firstly, it is relevant to the question of the culpability of the offender. Secondly, it may render an offender an inappropriate vehicle for general deterrence and moderate that consideration. Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: R v Hemsley [2004] NSWCCA 228 at [33]-[35]. 54In R v Israil [2002] NSWCCA 255 at [23], Chief Justice Spigelman observed: "To the extent that mental illness explains the offence - as her Honour found to be the position in the present case - then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law ..." See also R v George (2004) 149 A Crim R 38 at [41]. 55In evaluating the offence, the sentencing judge was required to assess all relevant objective and subjective factors. The evidence before his Honour included the report of Dr Christopher Canaris, Consultant Psychiatrist, dated 20 January 2013. 56In addition, the report of Mr Mark Milic, Clinical & Forensic Psychologist, dated 18 June 2013 was tendered in evidence. 57Dr Canaris carried out a detailed history of the applicant and carried out a mental state examination of him. He stated that there was no evidence of psychosis or of organic brain syndrome but concluded and diagnosed that the applicant suffered from Asperger's syndrome. He also noted in his report that the applicant had been burdened by moderate to severe generalised anxiety disorder with panic attacks, which he said seemed to have been a long-standing condition. Dr Canaris noted that patients with Asperger's syndrome frequently suffer comorbid conditions including anxiety disorders. 58Dr Canaris observed: "His anxiety disorder seems to have caused him significant problems in the recent past and I note that he is portrayed in the documentation as a tense and hypervigilant individual who prior to the incident in question had been reported to be sleeping poorly and reported as feeling sad, empty and hopeless." (at p 7) 59Dr Canaris noted that the applicant described the attack upon the victim as being as if he was: "... outside his body at the time of the attack suggesting a dissociative element at the time in question. I note that he volunteered this information without giving it undue emphasis suggesting an untutored account." (at p 7) 60Dr Canaris proceeded to explain the dissociation. He considered that the applicant's difficulties with reading body language would very likely have contributed to his perception that the mini bus driver was threatening. He noted that his concurrent anxiety and sensitivity to noise would have added to his distress when the driver sounded his horn. 61Dr Canaris explained that whilst he described the applicant's fears as irrational, it suggested a misinterpretation of his situation and observed that he seems to have responded "... very excessively in a reflexive manner to a threat which (if at all present) [was] far less than he thought ...": at p 7. 62Finally, Dr Canaris predicted that the applicant's capacity to survive a custodial sentence was extremely limited. He considered that he would be at extreme risk in custody from inmates and would find it difficult to adjust to the demands of prison officers, particularly given his difficulties with correctly identifying implicit as opposed to explicit demands: at p 8. 63It is clear that although the sentencing judge had regard to the applicant's medical condition in relation to the issue of general deterrence, his Honour did not give effect to the medical evidence in assessing the objective seriousness of the offence in light of the principles to which I have earlier referred and, in particular, as stated by the then Chief Justice in R v Hemsley. 64Mr Mark Milic, Clinical and Forensic Psychologist, in his report dated 18 June 2013 set out a detailed history, the results of psychometric assessment and details concerning the applicant's progress in psychotherapy sessions conducted between January and May 2013. 65Mr Milic included in his report: "Mr Leung's social skills deficits and personality style, which are most likely due to autism spectrum disorder, left him vulnerable to developing an anxiety and interpersonal problems. In particular, deficits in assertive skills left Mr Leung vulnerable to a pattern of passive acceptance of interpersonal frustration leading to a build-up of tension which is followed by an aggressive outburst." (at p 12) 66Mr Milic expressed the opinion that the offences committed by the applicant appeared to be incongruous with his otherwise pro-social character and were most likely triggered by his mental health conditions. He noted that due to his autism spectrum disorder the applicant has struggled to communicate assertively and understand people's motivations. That deficit was exacerbated, he considered, by high levels of chronic anxiety. 67I am of the opinion that appellable error has been established in terms of Ground 3 of the Grounds of Appeal. The medical opinion of Dr Canaris and the psychological assessment of Mr Milic both establish a clear contribution or causal association between the commission of the reckless wounding offence and the applicant's Asperger's syndrome aggravated as it was by his diagnosed anxiety disorder. The attack upon the victim plainly was completely out of character with his pre-offending history and was a major contributing factor to the reckless wounding offence under s 35(4) of the Crimes Act. 68Whilst the sentencing judge took the applicant's medical condition into account on the question of general deterrence, he did not give effect to the medical evidence on the issue of causation and its significance in terms of its relevance to the moral culpability of the applicant. The medical evidence clearly established that his out-of-character and bizarre behaviour had its explanation in his impaired judgment and his ability to control his faculties and emotions. Furthermore, given the medical evidence (see [81] below) appropriate allowance had to be given to the additional hardship, in the prison context, likely to result from the applicant's mental condition. 69In those circumstances, the sentence imposed for the reckless wounding offence must be set aside and the applicant re-sentenced. 70The conclusion which I have expressed in relation to Ground 3 makes it unnecessary for me to determine Grounds 1, 2(ii) and 4. 71In relation to Ground 5, it was submitted to the sentencing judge that a sentence other than a term of imprisonment was the only appropriate one for the reckless wounding offence. The submission to his Honour was that an intensive correction order or suspended sentence was appropriate. In any event, given the serious nature of the offence, I am not satisfied that there existed an alternative to a term of imprisonment. 72Whilst in relation to Grounds 2(i) and 5, the sentencing judge did not err in concluding that a custodial sentence should be imposed in respect of the reckless wounding offence, that is not the case in respect of the prohibited weapons offence. 73The finding made by the sentencing judge in respect of the latter offence was that the nature of the weapon was such that it fell at the low end of the scale of weapons to which the legislation applied. That finding, with respect, was clearly correct. The offence, on the facts of this case, standing alone, is one that would normally be expected to be prosecuted in the Local Court and for such an offence a custodial sentence would be most unlikely. In other words, for that offence I consider there was an alternative to the imposition of a term of imprisonment, which is a matter I will deal with in relation to re-sentencing. 74However, in the circumstances, both the reckless wounding offence and the prohibited weapons offence having been related by reason of the factual circumstances of the case, the applicant was understandably prosecuted in the District Court. 75Section 5(1) of the Sentencing Act provides that: "A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate." 76It is not apparent from the Remarks on Sentence that his Honour gave any particular consideration to possible alternatives other than a custodial sentence for the prohibited weapons offence. 77I accept the submission on behalf of the applicant that there is a significant overlap between the two offences in question and that, at least to a significant extent, the prohibited weapons offence was largely subsumed within the reckless wounding offence. 78I consider in all the circumstances that a sentence of 12 months imprisonment for the offence under s 7(1) of the Weapons Prohibition Act was manifestly excessive even allowing for the fact that the sentence was only accumulated by a period of 3 months on the sentence for the offence under s 35(4) of the Crimes Act. The sentence for the prohibited weapons offence should be quashed and set aside.

Re-Sentencing 79In considering the question of re-sentencing, I have had regard to the fact that the maximum penalty for the offence under s 35(4) of the Crimes Act is 14 years and that there is a standard non-parole period prescribed of 3 years. The standard non-parole period, is, of course, to be taken into account as a guide together with all relevant objective and subjective factors. 80Mr Dhanji SC who appeared with Mr Johnston in this Court on behalf of the applicant tendered a report from Dr Canaris dated 8 March 2014 and relied upon an affidavit of Ms Tsu Jong sworn on 13 March 2014 as material relevant on the question of re-sentencing. 81The report of Dr Canaris dated 8 March 2014 confirms that the applicant continues to show evidence of an autism spectrum disorder and evidence of ongoing moderate to severe generalised anxiety disorder with panic features. Dr Canaris has stated that the conditions of custody have exacerbated both conditions. He stated that the applicant's fear and anxiety are far in excess of what he has encountered in most prisoners. Dr Canaris concluded that the applicant's incarceration comprises a far greater burden for him than for a typical prison by reason of his psychiatric disorders which have gone untreated in the prison setting: at p 5. 82Finally, Dr Canaris considered that the applicant "would be highly amenable to treatment": see report 20 January 2013. 83For the reasons set out above, leave to appeal should be granted and the appeal upheld. I have also concluded that the applicant should be re-sentenced on the following bases: (1) In relation to the offence of reckless wounding under s 35(4) of the Crimes Act 1900, a finding of special circumstances should be made having regard to the applicant's need for appropriate medical treatment in the community. (2) As the offence under s 35(4), has a prescribed standard non-parole period of three years, the Court is required to fix a non-parole and parole period and not a fixed term: See SGJ v R; KU v R [2008] NSWCCA 258 at [76]-[78]. In that respect I propose that the non-parole period should be the period that the applicant has been in custody to date. 84I accordingly consider that the applicant should be re-sentenced to period of imprisonment of 12 months comprising: (i) A non-parole period equivalent to the period of imprisonment served by the applicant, being a period of 8 months and 13 days, commencing on 26 July 2013 and expiring today, 7 April 2014. (ii) A balance of term of 3 months and 18 days commencing on 8 April 2013 and expiring on 25 July 2014. 85In relation to the offence under s 7(1) of the Weapons Prohibition Act, the applicant, Simon Yuk Leung, be directed pursuant to s 9 of the Sentencing Act to enter into a good behaviour bond for a period of 1 year from 7 April 2014. 86Accordingly, I propose the following orders: (1) Leave to appeal against the sentences imposed by the District Court on 26 July 2013 be granted. (2) Appeal allowed. (3) The applicant be re-sentenced as follows: (i) In respect of the offence of reckless wounding contrary to s 35(4) Crimes Act 1900, the applicant is re-sentenced to a term of imprisonment comprising a non-parole period equivalent to the period of imprisonment served by the applicant, being a period of 8 months 13 days commencing on 26 July 2013 and to expire on 7 April 2014 with a balance of term of 3 months and 18 days to commence on 8 April 2013 and to expire on 25 July 2014. (ii) In respect of the offence of possess prohibited weapon contrary to s 7(1) Weapons Prohibition Act 1998, the applicant be directed pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 to enter into a good behaviour bond for a period of 1 year from 7 April 2014. 87The applicant is accordingly eligible for parole today, 7 April 2014.

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: 10 April 2014