Ground 1
20The totality of the judge's remarks bearing on the topic of remorse was:
"The offender did not give evidence or express any remorse for his offending. The Probation and Parole Service report also states at page 2:
'Mr Sun indicated that he has realised the potential damage which he may have caused to the psychological wellbeing of the victim. He has also realised the significant consequences of his actions upon himself.'
Dr Klug says at p 7:
'Mr Sun expressed a sense that what the victim had experienced was 'unfair' to her. This might be described as regret but he did not appear to express spontaneous remorse. In a self-referential way, however, he expressed clear regret that he is [to] suffer long term punishment for an act which occurred 'in the split second'."
21The report of Dr Klug contains another passage, which I have not previously mentioned, but that the judge quoted as part of a lengthy quotation from the report:
"He did not spontaneously express remorse but on inquiring about how he felt he expressed regret in the sense of describing his sense of fairness to the victim. He did not express any deep denigratory remarks about the victim or about women in general".
22The judge also noted that the offender did not plead until the day of his trial. The judge gave him a 15% discount for the plea's utilitarian value.
23Section 21A(3)(i) Crimes (Sentencing Procedure) Act lists as a mitigating factor:
"the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)"
24The onus of establishing remorse as a mitigating factor lies with the Appellant, on the balance of probabilities. That follows from the general proposition accepted by Gleeson CJ, Gaudron, Hayne and Callinan JJ in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27], approving the statement of Winneke P, Booking and Hayne JJA and Southwell AJA in R v Storey [1998] 1 VR 359 at 369 that a sentencing judge:
"may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."
25In R v Butters [2010] NSWCCA 1 Fullerton J (with whom McClellan CJ at CL and McCallum J agreed) said, at [16]-[17]:
"The applicant submitted, and correctly, that the prosecutor misstated the law when he submitted that s 21A(3)(i) of the Crimes (Sentencing Procedure) Act requires an offender who is claiming the benefit of remorse in mitigation of sentence to give evidence in the sentence proceedings, and that in the absence of such evidence little weight ought attach to out of court statements of remorse by the offender. Contrary to the prosecutor's submission there is no statutory requirement that an offender give evidence before remorse can be taken into account in the calculation of sentence. Furthermore, the prosecutor's reliance on R v Thomas [2007] NSWCCA 269 as authority for the proposition he advanced was in error.
On a proper construction, s 21A(3)(i) requires an offender to provide evidence that he or she has accepted responsibility for his or her actions and has acknowledged any injury, loss or damage caused by his or her actions or any reparation for such injury, loss or damage (or both), as a statutory precondition to any reliance on remorse as a mitigating factor. The requirement to provide evidence before remorse can be relied upon does not equate with a requirement that an offender give evidence either of remorse generally or of the matters set out in the section. This much is clear from Thomas at [18]-[19] per Basten JA."
26One of the matters before the judge was the original of a letter that the Applicant had written to the Court, in Mandarin, and an English translation of that letter. It is a lengthy account (about 7 closely-typed pages in translation) of the Applicant's life, and of the numerous wrongs he feels his parents have done him. It tells how his cousins have been nurtured and encouraged and are all well educated, are doing well, "and they are likely to have a beautiful future" while he has been deprived of education through his parents' neglect and is working in a restaurant. It tells how his mother, despite an initial promise to do so, has failed to provide money to enable him to go to university. His account is that the incident occurred on the eve of his 22 nd birthday, that he had spent the day brooding over the neglect and bad treatment to which he had been subjected, and that he set out to commit a crime, so that he could prove to his mother that her failure to provide love and nurture only entitled her to have in him "a shrivelled weed, a piece of rubbish" . The statement continued:
"So, let me give you a piece of rubbish to wake you up. What constitutes trash? Being a criminal is more than adequate."
27He says that he took the knife, intending to scare someone, that the incident with DE "was not in my plan" , that he started to follow her "[b]linded by hatred" (for his mother) and that after his encounter with DE he "sat in the booth waiting for the police to arrest me" . He explained that, since he has been in gaol, his hatred "gradually is no longer significant" . His statement continues:
"Further, what occurs in my mind is the debt I owed to so many good relationships.
I don't know how to face my workmates, my friends. When my lady boss and my workmate from the restaurant came to visit me, I was truly regretful. I ruined everything I have. All the precious human relationships I formed are being ruined by my stupidity of the time. I was so stupid, I was so irrational! So I told them not to visit me any more. I am not worth it. From that time onwards I refused all visits. This refusal naturally included visits from my mother. I truly do not know how to face her.
I cannot face the paternal grandmother who cared for me since I was two months old. She gave me the warmth, the only love from this broken family. Previously, she wanted me to ring her once a week. Sometimes I was too lazy to ring. Now how I wish I could telephone her several times a week. I don't know whether she can still forgive me, the grandson whom she spent 17 years to raise, have become a criminal.
I am truly sorry and I owe an apology to that girl. She is so innocent. But because of my foolish and stupid behaviour, her heart would have a shadow cast over it. If it is possible, I would really like to do something for her, I am willing to do whatever [she asks]. If only I can reduce the hurt in her heart, I very much wish she can smack me severely. I want very much to apologise to her directly, in person. To say sorry, I really want to. I had dreamed that she was crying and came over and tried to use both her hands on my neck to choke me. Her eyes were full of hatred and resentment. I truly am scared to look at her eyes. I woke up with fear. But I really want to be killed by her this way. I truly wish that.
I am guilty. I should accept all the responsibility for my crime under the law."
28The report of Mr Sevitt and Mr Rees says, under the heading "level of contrition" .
"His statement translated from Mandarin contains a clear statement of regret over his behaviour to the victim. He accepts his guilt and recognises that his actions require him to accept responsibility."
29The judge made no reference to the Applicant's letter, nor to the passage just quoted from the report of Mr Sevitt and Mr Rees. While Mr Sevitt and Mr Rees had the opportunity of interviewing the Applicant for about an hour and a half, I would not conclude that it is more likely than not that the final sentence that I quoted from their report concerns a separate acceptance of guilt to that which is contained in the Applicant's letter.
30The judge was wrong in saying that the Applicant did not express any remorse for his offending. The Applicant expressed remorse to the Probation and Parole Service, to Dr Klug, and in his letter.
31There is ample authority that the sentencing judge can be cautious about the weight that he or she places upon an offender's unverified statement of remorse when no direct evidence of remorse is placed before the court. Caution is appropriate whether the statement is made to a psychiatrist or psychologist (eg R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 per Smart AJ at [58]-[59], Spigelman CJ at [79]; R v McGourty [2002] NSWCCA 335 at [24]-[25] per Wood CJ at CL), to an officer preparing a presentence report ( R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at [40]-[41] per Howie J (Levine and Hidden JJ agreeing), TS v R [2007] NSWCCA 194 at [30] per Giles JA (James and Hislop JJ agreeing)), or in a letter from the offender to the sentencing judge ( R v Elfar [2003] NSWCCA 358 at [25] per Whealy J (Ipp JA and Davidson AJ agreeing)). As McClelland CJ at CL pointed out in Pfitzner v R [2010] NSWCCA 314 at [33] such out-of-court statements are made in circumstances where they are unlikely to be challenged, and when an offender does not give viva voce evidence the judge does not have the assistance of demeanour in evaluating the correctness of asserted remorse. Further, as Buddin J (McClelland CJ at CL and Schmidt J agreeing) said in Alvares v R [2011] NSWCCA 33 at [65]:
"... a sentencing judge is not bound to accept assertions by an offender that he is remorseful, even when that assertion is made in the witness box: R v Stafrace (1997) 96 A Crim R 452. Nor will what Simpson J described, in Pham v R [2010] NSWCCA 208 [at para 33], as "the often ritual incantation of remorse and contrition" be automatically accepted by a sentencing judge."
32Concerning the Applicant's expression of remorse to Dr Klug, the Crown submits " Dr Klug expressed reservations about its spontaneity, and it may be inferred, its sincerity . " I would not be prepared to infer that Dr Klug expressed reservations about the sincerity of his remorse. Rather, Dr Klug was simply reporting that the Applicant did not express any spontaneous remorse. I would not be prepared to draw any inferences about why a young Chinese man, being interviewed by an Australian doctor through an interpreter, did not volunteer information on that topic.
33The Crown submits that the judge's remark about the Applicant not expressing any remorse for his offending should be understood as his Honour saying that there was insufficient evidence to persuade him to the requisite standard that a finding of remorse should be made. I do not accept that submission. That is simply not what the judge said. In my view, the judge approached the sentencing on the basis that the Applicant did not express any remorse to his offending, and that thereby he approached it on a wrong factual basis.
34This error on the part of the judge requires the Court to consider for itself, consistently with s 6(3) Criminal Appeal Act 1912 whether:
"...it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed ...."
35In Baxter v The Queen [2007] NSWCCA 237; (2007) 173 A Crim R 284 at [6], Spigelman CJ drew attention to the confusion of tenses that this statutory provision contains - the present tense of "is warranted in law" and the past tense of "should have been passed" . The Court (Spigelman CJ at [7]-[10]; Kirby J at [61]-[62]; Latham J at [82] agreeing with both) reaffirmed the Court's practice of receiving evidence of post-sentence conduct for the purpose of determining whether a sentence should be substituted under s 6(3).
36An affidavit of the Applicant was read on the appeal. He reports that he has taken various courses in gaol, and that he can now speak basic English, and can understand the news on television. He reports only one very minor disciplinary incident in gaol. He says:
"8. I have regular contact with my mother. I telephone her a few times each week. She has visited me about every 6 weeks up until recently when she has travelled overseas to attend to family matters. She is now supportive of my desire to go to university.
9. When I am released, I hope to attend university to study an information technology course. I also intend to get a job in either the hospitability or metal sheet industries. I have previously worked in restaurants. My mother has said to me that she intends to buy a coffee shop business with my aunt and grandmother and that I can work in that business.
10. I so very much regret the offence that I committed. I feel very sorry for that young woman and I am very sorry that I harmed her. I have also brought a lot of trouble to my family and I am very sorry for this."
37He was not cross-examined on that affidavit. Being made on affidavit, and where there is no reason (such as death or sickness of the deponent) why cross examination of the deponent was not possible, there is not the same need for caution in accepting the Applicant's statement of remorse as there would have been on the evidence as it stood at the trial, had the judge turned his mind to that question. The expression of remorse in the final paragraph of the affidavit is consistent with the Applicant's expressions of remorse to other people and on other occasions, there is no evidence that suggests he has not come to suffer remorse, and there is nothing inherently incredible in his statement. In those circumstances, this court should approach the task under s 6(3) on the basis that the Applicant has expressed remorse. Further, the prerequisites that s 21A(3)(i) imposes on taking remorse into account as a mitigating factor have been satisfied.
38In my view, a lesser sentence than that imposed by the judge should have been imposed.
39The Court was given references to four other cases where this Court had considered sentences for an offence against s 61K Crimes Act ( R v Tsokos (Court of Criminal Appeal, 19 June 1995, unreported) (which can be found on the NSW Caselaw website with the incorrect medium neutral citation [1995] NSWCA 388), O'Donnell v Regina (Court of Criminal Appeal, 12 May 1997, unreported); R v Capar [2002] NSWCCA 285; (2002) 132 A Crim R 160 and Webster v Regina [2006] NSWCCA 346). The circumstances of those offences are all too dissimilar to the present to provide any real assistance. Hence it is necessary to approach the matter from first principles.
40Section 3A Crimes (Sentencing Procedure) Act identifies the purposes of criminal sentencing:
"(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.
41The Applicant's action, of threatening a woman on her own, at night, and the threat being to kill, not merely to hurt, are in themselves serious. They involved holding a knife to DE's throat and physically holding her, including by touching her breast.
42The Applicant's plea to the charge involves an acceptance that he intended to have sexual intercourse with DE, and that he threatened to harm her with a knife. It does not involve an acceptance that his intention was to carry through with his threat. DE was, according to the evidence of the nurse in charge at the nursing home, of small build, and 5'2" tall. The Applicant was described as being 5'8" to 5'10" tall, and of medium build. Given that the Applicant had his arm around her from behind and put the knife to her throat, that she was able to free herself by kicking him, grabbing the knife, pushing it away from her, hitting him with her bag and kicking him again, is not suggestive of a very determined attack. The same can be said for his failure to follow her once she had freed herself. That, notwithstanding that she seized the blade of the knife, she was not cut by it, in itself casts doubt on whether he actually intended to inflict bodily harm on her. I am not satisfied he had such an intention, and his sentence should reflect that.
43The police interview on the night of the offence included:
"Her hands were, her hands her hands was actually on the knife so I, I, I was afraid that she might have got hurt. So I said, OK, I'm going home. I was afraid that she might get, might get injured by grabbing the knife, so I was a bit concerned."
44By itself that is of negligible weight, but it provides a small amount of extra confirmation for the inference.
45The seriousness of the action that the Applicant engaged in is such that nothing but imprisonment is an appropriate sentence. The seriousness of the action can be reflected in purposes (a), (e) and (f). To the extent to which it was harmful to the victim to be placed in a seriously frightening situation even though she has suffered no ongoing consequences, and it is harmful to the community if a woman has reason to feel she might not be safe walking alone in a suburban street at night, punishment that recognises the seriousness of the action also advances purpose (g).
46In the present case, the good record of the Applicant and his highly unusual motivation for committing the crime suggest that there is little scope for specific deterrence and protection of the community to play a role in the sentence. Further, there is a substantially reduced role for general deterrence to play. Even though the Applicant does not suffer from any psychiatric malady his action on the night in question was most unusual, and grossly irrational. His plea to the charge necessarily involves an admission that his threat to DE was made with intent to have sexual intercourse with her. However this case is far removed from the more familiar case of an offender who inflicts or threatens to inflict harm with the principal or sole motivation of satisfying his own sexual desires, or with the principal or sole motivation of inflicting sexual relations on the victim as revenge, or to establish power over her. The gross irrationality of the Applicant's offence and the highly unusual nature of his motivation seriously reduce the scope of any sentence imposed on him to act as an object example or warning to others who might be minded to commit a crime against s 61K.
47There is scope for a sentence to promote the rehabilitation of the offender, in the respects that Dr Klug identified, and the sentencing judge accepted. As the sentencing judge accepted, sentencing should be carried out on the basis that the need for rehabilitation is a special circumstance justifying a balance of term that exceeds one third of the non-parole period of the sentence. Training for more skilled work than he was doing prior to the offence, and development of his English skills, are very important matters in the rehabilitation of this particular offender. The psychological testing carried out shows that he is of well above average intelligence (in broad terms, in about the top 15% of the population), and his letter to the judge shows that, when writing in Mandarin, he can be powerfully eloquent. His rehabilitation could benefit by having the assistance of the parole services in obtaining access to suitable courses. His remorse is a subjective matter, beyond those taken into account by the judge, which tends to ameliorate the sentence that would otherwise be appropriate. In my view a parole period of 60% of the total term is appropriate.
48If he had not pleaded, the sentence that should have been imposed would be a non-parole period of three years, with a balance of term of two years. I agree with the extent of the 15% discount that the sentencing judge gave, given the comparative lateness of the plea. Though the plea was only actually made on the morning of the proposed trial, negotiations for it had been actively under way during the preceding week.
49If a 15% discount is applied to both the non-parole period and the balance of term, and rounding down any fractions of a month to the nearest half-month, the sentence that should have been imposed is a total term of 51 months, of which 30 months is a non-parole period. As the Applicant has been in custody since 11 August 2008, the resulting sentence would be a non-parole period commencing 11 August 2008 and expiring 25 February 2011, with a balance of term expiring 11 November 2012.
50As I have reached the view that a sentence other than that imposed is warranted in law and should have been imposed, and I propose to re-sentence the Applicant, there is no occasion to consider the second ground of appeal.
51In these circumstances the orders that I propose are:
1.Grant leave to appeal.
2.Allow the appeal.
3.Set aside the sentence imposed on the Applicant in the court below.
4.In lieu thereof, order that he be sentenced to a non-parole period commencing 11 August 2008 and expiring 25 February 2011, with a balance of term expiring 11 November 2012.
52RS HULME J : I agree with Campbell JA.
53ADAMS J : I agree with Campbell JA.