LIU v R

Subjective circumstances

1. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. Her Honour also referred to the consideration that the applicant was "elderly". She stated (J 12): "It is well established that advanced age may affect the type or length of penalty to be imposed and may be relevant, in combination with other facts at sentence, such as health. … The extent of any mitigation that results from advanced age will depend on the circumstances of the case, including the offender's life expectancy and any treatment needed. But age is not a licence to commit an offence." Her Honour referred to R v McLean (2001) 121 A Crim R 484 at [44] where Woods CJ at CL referred to advanced age as a mitigating circumstance. However, his Honour stated that advanced age could not justify a sentence "that is out of proportion to the objective and subjective criminality involved". There could be no expectation "that the elderly can offend with relative impunity".
5. 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: "The [applicant] was jealous. He felt rejected and was angry and frustrated. This boiled over and he decided that he would kill his wife and himself and that is what he attempted to do. Whatever term one puts on it, it was rage, jealousy and anger, pure and simple".
6. 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. 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. 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. 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): "[T]he fact [the applicant] has been in custody since the global pandemic effectively began and restrictions in gaols were introduced, his age, and his limited English, which will cause him some difficulty during his custodial sentence" (my emphasis).
10. 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. 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. 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. 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]: "… if your Honours are with us in respect of error, one way of continuing to recognise the seriousness of this conduct, making proper allowance for the circumstances … described could involve a reduction of the non-parole period without interfering with the head sentence. And that would serve the purposes of making it understood how serious the conduct is, but then also understanding that the sentencing exercise in this case is a very special and difficult exercise".
4. 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. 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. 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. 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. 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: "It seems to me that the following broad general principles might be extracted as being ordinarily applicable in a case such as the present: (1)Where moral culpability is reduced by reason of advanced age (which will inevitably mean that the advanced age is coupled with some other factor that is a consequence of it, for example when there is an age related mental impairment), allowance should be made for that factor. (2)Where there is evidence sufficient to justify the conclusion that circumstances associated with advanced age (for example, continuous ill health, or ill health coupled with physical or mental frailty) will make imprisonment more arduous for the offender than is normal, allowance should be made for this. (3)Account may also be taken of hardship for the offender arising out of his or her knowledge that a lengthy sentence of imprisonment is likely to destroy any reasonable expectation of useful life after release. However, the punishment must still reflect the crime and the seriousness of the offending behaviour may be such that the offender has forfeited the right to any reasonable expectation of useful life after release. (4)Deterrence and denunciation are important even in the case of an offender of advanced age. However, where there are factors associated with age that justify a more lenient sentence, the general public will understand why the sentence is less severe than might otherwise have been the case and the purposes of deterrence and denunciation will still be served. However, if this is to be achieved, the punishment must still reflect the seriousness of the crime."
2. 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. 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. 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. 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. 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. In Holyoak v R while discussing the possible ways in which advanced age might be mitigatory for sentencing purposes, Allen J said (at 507): "It simply is not the law that it never can be appropriate to impose a minimum term which will have the effect, because of the advanced aged of the offender, that he well may spend the whole of his remaining life in custody." This was a case of historical child sexual abuse. Having stated the principles pointing towards possible leniency because of the offender's age, Allen J concluded however (at 508): "So objectively horrendous, however, were the crimes for which the applicant fell to be sentenced, particularly considering the breach of trust which it involved, that I find myself unable to say that, assuming that all other matters he took into account were appropriate to be so taken, the severity of the sentences imposed is indicative that his Honour failed to give due weight to the significance of the plaintiff's age." The total effective sentence for the offending and the offender imposed at first instance was one of 8 years with a non-parole period of 7 years, available under the prevailing sentencing regime of the time. This outcome is a clear example of the centrality of proportionality in sentencing.
8. 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. 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. As the plurality said in Kentwell at [42]: "As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". It is only if the Court of Appeal is persuaded of House v the King (1936) 55 CLR 499 at 505 error at first instance that it is required to exercise the sentencing discretion afresh to determine whether the sentence passed below is warranted in law. It is, of course, not to the point that another judge, without error, may have taken the applicant's advanced age into account in a manner different from the sentencing judge and arrived at a lesser sentence. This does not suggest her Honour's approach is affected by error. It is merely a necessary incident of the discretionary nature of the sentencing task. Taking the applicant's advanced age into account as a special circumstance, in my view, was not to treat it as a "peripheral" issue. I repeat, her Honour's approach permitted the applicant's advanced age to have a real and direct effect on the time to be served. I am not satisfied that error has been established.
11. For these reasons the orders I propose are: 1. Grant leave to appeal on sentence; 2. Appeal dismissed.
12. McNAUGHTON J: I agree with Campbell J.

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