Wang v R

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

1. This ground is concerned with the applicant's mental condition at the time of the offending, including the effects of certain childhood experiences. It will be necessary to refer in some detail to the evidence that was before the sentencing court, the manner in which it was relied upon by the applicant and how it was regarded by the sentencing judge. This will provide a context for the "new" evidence the applicant seeks to rely upon in this Court.
2. As indicated earlier, the applicant's case on sentence was entirely documentary and included two reports by Dr Furst. The Crown's position was that Dr Furst's opinions should be viewed with "very considerable caution" and "some scepticism" as they were based upon things said by the applicant that were untested. R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369, a well-known authority for such a proposition, was cited. [7]
3. In this Court, the applicant accepted that findings made by the sentencing judge were open on the material that was before him, namely Dr Furst's two reports. However, it was said that the reports may have been ambiguous in certain respects and the true position has been clarified by a further report by Dr Furst that was obtained after sentencing.
4. The Crown objected to the tender of the further report on the basis it did not meet the requirements for reception of "new" evidence on an appeal against sentence.

First report of Dr Richard Furst, 23 July 2019

1. Dr Furst's first report, dated 23 July 2019, included a detailed history provided by the applicant of her life from early childhood. There was no suggestion in the report of anything untoward about her mental health prior to the breakup. The description of her reaction to the breakup was to the effect that she took it quite badly. This was not in issue; it was part of the agreed facts.
2. Dr Furst diagnosed a Major Depressive Episode. He wrote: [8] Ms Wang manifests features of a relatively severe episode of depression that developed in the weeks after she and the deceased broke up and continued over the following months, up to and including the time of the offences in question before the Court on 17/06/19. The differential diagnosis of an adjustment disorder with depressed mood was considered; however, in my opinion, Ms Wang manifests more severe symptoms of depression and some melancholic features, including her severe insomnia, weight loss, anhedonia and agitation/restlessness.
3. The report included Dr Furst's opinion that the applicant was fit to be tried; she was not suffering from a major mental illness or psychosis at the time of the offence; and she did not have the mental illness defence available to her. He then opined that the defence provided by s 23A of the Crimes Act was reasonably arguable.
4. The defence in s 23A was, at the relevant time, one of substantial impairment by abnormality of mind. [9] It had two limbs: (1) A person who would otherwise be guilty of murder is not to be convicted of murder if - (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter
5. Of course, no such defence was pursued by the applicant but that did not imply she was abandoning both limbs entirely. She clearly chose to abandon the second but ran a case which was to the effect that her capacity to control herself was impaired. There was support for this in the opinion of Dr Furst in his first report: [10] Her capacity to give a version of events and flee the scene in question suggests she was aware of her alleged actions when killing the deceased and was also aware her actions were wrong according to the standards of ordinary people. The real question at hand with respect to Section 23A of the Crimes Act is whether or not Ms Wang lacked the capacity to control her actions at the time in question. Although this is ultimately a question for the trier of fact [jury] to determine on the available evidence, the psychiatric history outlined by the applicant suggests that her depression was so severe and her mental disorder so significant that her capacity to control her actions was impaired.
6. The question of loss of control pervaded the course of submissions before the sentencing judge concerning her mental condition; e.g. see below at [60].

Second report of Dr Furst, 28 August 2020

1. Dr Furst's second report was dated 28 August 2020. By this time the applicant had pleaded guilty and was due to appear for sentence on 14 September 2020. The applicant was further interviewed by Dr Furst on 22 July 2020.
2. This report provided a more detailed history of the applicant's upbringing. It included that her father was often violent towards her mother in the applicant's early childhood, although she did not directly witness domestic violence prior to their separation. She spent most weeks of her early childhood (aged three to five) in a long day-care facility, only being in her mother's care from Friday afternoon to Monday morning. Her teacher/carer was strict and used physical punishment. She was unhappy. [11]
3. The applicant was in the care of her maternal grandparents when aged four to five, only seeing her mother once a year for Chinese New Year. Her grandparents were not nice to her and used physical discipline including hitting her with a stick. She had no friends and felt highly anxious in primary school and described feeling very lonely in her childhood. She returned to live with her mother at age 11-12. [12]
4. Her mother remarried and she got on reasonably well with her stepfather. In her teenage years she was not very close to her mother who would accuse her of being with boys (whereas she was attracted to girls) and hit her in the face.
5. The account of the applicant's relationship with Ms Zhou in this report was largely a replication of the history set out in the earlier report. It added in relation to her mental state on the night in question: [13] She also said, "I totally lost control. Totally not myself. I was drunk. Ms Wang claimed she had consumed two bottles of wine on the day/evening in question. She also said, "I didn't realise I was in that state of depression. I thought I was heartbroken. Not well. Low."
6. I interpolate that Mr Bellanto QC submitted to the judge that intoxication provided an explanation for the applicant's conduct. [14] His Honour did not accept this because the only material supporting it was her hearsay statements to which he gave little weight. [15] It is of some significance that this excerpt from the history provided by the applicant includes another claim to having been unable to control herself.
7. Dr Furst provided the following opinion about the circumstances of the applicant's childhood: [16] Ms Wang derives from a conflicted and disjointed family of origin, with evidence of domestic violence between her parents in her early childhood, abandonment by both parents, harsh and unloving treatment whilst in long-stay child care and in the care of her maternal grandparents and ongoing difficulties in her relationship with her mother in her teenage years. She also had some difficulties in relation to her sexual orientation as a gay teenager. Accordingly, Ms Wang developed [an] insecure pattern of attachment, a psychological/developmental construct that relates to the security of childhood and adult relationships, typically manifesting in a fear of abandonment, clingy and/or insecure relationships, dependence on others and/or co-dependent relationships.
8. Dr Furst slightly revised his diagnosis in this report, indicating the applicant met the criteria for "Major Depressive Disorder, melancholic features". Under the heading "Psychiatric and Psychological Mitigating Features" he included the following: [17] I am of the opinion that Ms Wang was severely depressed on the night of the offence in question before the court and that her symptoms of depression had progressively increased over the preceding 4-5 months. Her depressive condition was severe and, therefore, likely affected her thinking, cognitive function and her behaviour on the evening in question, including increased irritability, negative and possibly nihilistic thinking, and a lack of care about the consequences of her actions, including as she intended to kill herself in any case. Although Ms Wang was aware of her actions when killing the deceased, Shuyu Zhou, and was also aware her actions were wrong according to the standards of ordinary people, she was in a disordered state of mind by virtue of her severe depression and associated thought processes, which contributed to her poor decision-making and extreme actions when killing Ms Zhou. Her capacity for self-control was probably also impaired by her severe depression on the evening in question. (Emphasis added)
9. The foregoing being the evidence concerning the applicant's mental state, it is pertinent now to turn to the submissions made to the sentencing judge.

Submissions before the sentencing judge

1. Mr Bellanto QC and YC Lin of counsel, who appeared for the applicant on sentence, provided extensive written submissions which devoted an entire section to the significance of her mental condition. In an introduction it was contended that it was relevant to the assessment of her moral culpability as well as to considerations of general deterrence and retribution. [18]
2. After a review of pertinent aspects of Dr Furst's two reports, it was submitted that the applicant's "mental illness reduces her moral culpability", following which there was a quote from the judgment of the High Court of Australia in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [53] as to "very little weight" often being given to general deterrence in the case of an offender suffering from a mental disorder or abnormality. [19]
3. There was a second limb to counsel's argument about less weight being given to deterrence. In a separate and later section of the written submissions under the heading "Difficult Childhood", it was contended that less weight should be assigned to general and specific deterrence and greater weight given to rehabilitation on account of the applicant's "experiences as a child". Her exposure to violence as a child was also said to ameliorate her moral culpability. [20] A paragraph from Dr Furst's second report was quoted; that which is quoted above at [54]. [21]
4. In oral submissions, Mr Bellanto reviewed the reports of Dr Furst in detail. He quoted from the first report the opinion that the applicant's depression was "so severe and her mental disorder so significant that her capacity to control her actions was impaired". This was within a longer passage quoted above (at [46]) which included Dr Furst's opinion that the first limb of the substantial impairment defence was available on the "loss of control" aspect. [22] The judge sought clarification and received the following response: [23] HIS HONOUR: … When we are talking about loss of control we are not saying someone who can't control their arm or their leg? BELLANTO: No. HIS HONOUR: Nothing like that. Is what you are saying is, someone who is emotionally distressed, angry, perhaps vengeful, but hasn't, because they have got you say this mental illness their ability to restrain themselves is impaired, is that the steps we are talking about? BELLANTO: Yes, to assess. HIS HONOUR: Will I go through with it. I have got this overwhelming emotional response, including anger, that their ability to stop themselves giving effect to it. Is that really the sort of lack of control we are talking about? BELLANTO: Yes. And your Honour, would contrast that to her lifestyle pre this problem. …
5. Mr Bellanto proceeded with references to the second report, including Dr Furst's opinion that the applicant was "severely depressed on the night of the offence" and that "she was in a disordered state of mind by virtue of her severe depression and associated thought processes which contributed to her poor decision making and extreme actions when killing Ms Zhou". [24] He was quoting from the third and fifth paragraphs on page 10 of Dr Furst's second report; the passages underlined in the extract set out above (at [55]). It was directly after doing so that Mr Bellanto concluded on the subject: [25] BELLANTO: … So your Honour that really encapsulates pretty much what your Worship [sic] touched on I think a few moments ago. HIS HONOUR: That is what I understood he was really saying. BELLANTO: So that is the way we would invite your Honour to consider this question of loss of control.
6. The Crown submitted that the actions of the applicant as depicted on the CCTV footage were inconsistent with there being an inability to control herself or a lack of capacity to understand events or judge whether her actions were right or wrong (i.e. all three aspects of the first limb of the substantial impairment defence). Nevertheless, the Crown did allow for the applicant's diagnosed mental state to have contributed to the offending. It conceded that it would be open to find that the applicant's mental condition diminished her moral culpability, although "only to a small degree". [26]
7. As to the applicant's written submissions concerning her "difficult childhood", the Crown submitted that the evidence was insufficient to engage the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and result in a significantly lesser sentence. [27]

The judge's consideration of the applicant's mental condition

1. The judge devoted a section of his remarks on sentence to "The Offender's Mental State". He said he understood the issue was "whether there was some degree of loss of the offender's ability to control herself so as to mitigate either the objective seriousness of her crime or her moral culpability for it". [28] This understanding appears consistent with what Mr Bellanto QC had told him (see above at [60]-[61]). As will be seen, however, the judge did not confine his consideration of the evidence just to the "loss of control" aspect.
2. The judge made specific reference to passages in Dr Furst's reports and quoted the three paragraphs on page 10 of the second report that have been extracted above (at [55]). The final sentence in that extract was emphasised by his Honour, namely: [29] Her capacity for self-control was probably also impaired by her severe depression on the evening in question.
3. His Honour referred to the Crown's submission that the CCTV footage showed the offender was composed and deliberate in her actions and the counter-submission by Mr Bellanto that this was not determinative, and that Dr Furst had seen the footage too. [30]
4. A finding was made that the applicant's ability to control herself was impaired in a limited sense which his Honour explained as follows: [31] I accept Dr Furst's conclusion that throughout the months preceding the killing of Ms Zhou the offender was suffering from a major depressive disorder (with melancholic features). The diagnosis is strongly supported by the objective evidence of her conduct during that period. However, Dr Furst's opinion concerning her capacity for self‑control needs to be considered carefully. Part of his opinion was fairly equivocal ("probably also impaired"). Moreover, the form of loss of control he describes is one that flows from "increased irritability, negative and possibly nihilistic thinking, and a lack of care about the consequences of her actions". As I understand, Dr Furst is not suggesting that her mental condition was the genesis of her deliberate decision to brutally kill Ms Zhou (but if that is what he contended then I would reject it). Instead, the effect of his opinion appears to be that, having formed the intention to do so, the offender was less able to prevent herself from carrying out that intention because of any concern about the longer-term consequences for herself from doing so. In that sense her thinking was "nihilistic". In this, albeit very limited, sense I am prepared to accept that the offender's ability to control herself was impaired.
5. The judge referred to Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] where McClellan CJ at CL provided a convenient summary of principles concerning sentencing of an offender with a mental condition: 1. Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence. 2. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. 3. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced. 4. It may reduce or eliminate the significance of specific deterrence. 5. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public. (Citations omitted)
6. Beech-Jones J continued: [32] Of some relevance to this case is that in De La Rosa McClellan CJ at CL confirmed that these principles extend to an offender with "a mental disorder of modest severity" which need not amount to a "serious psychiatric illness" (De La Rosa at [178]). However, it is important to recognise that all of these principles were expressed in permissive terms ("may"), ie, none of the consequences automatically follow from the presence of a mental disorder. Amongst other matters, the nature of the disorder and its relevance to the offence and the offender must be considered. In relation to the first and second principles that were stated in De La Rosa, I have already accepted that, in a very limited sense, the offender's mental health contributed to the commission of the offence in a material way. However, I do not accept that it has any material effect on her moral culpability. At all times she was completely cognisant of the nature and quality of her acts, the appalling suffering she was inflicting on Ms Zhou and the consequences for Ms Zhou's family that would follow. It can be accepted that someone can be guilty of murder but not be fully cognisant of some or all of those matters due to mental illness or an intellectual impairment. However, that is very different to someone being fully cognisant of those matters but not being able to restrain themself from committing murder because their capacity to consider the long term consequences of doing so is impaired because of depression. Otherwise, I do not consider that there is any justification for ameliorating considerations of general deterrence, given that the offending involves extreme domestic violence (R v Villaluna [2017] NSWSC 1390 at [85]; "Villaluna"). As for the third principle, I will address the particular difficulties faced by the offender in custody shortly. Her major depression is an aspect of that. That said, understandably, it is very common for offenders facing long prison terms to be depressed (Villaluna at [65]). As for the fourth and fifth principles, I do not consider that either more or less emphasis on specific deterrence is warranted on account of the offender's depression. On any view, she faces a long custodial sentence and her circumstances will be very different at the stage of life when she is released.
7. The second limb to the submissions for the applicant concerning her moral culpability and the asserted reduced significance of deterrence, namely the effects of her childhood experiences, were considered by the judge as follows: [33] Fourth, Mr Bellanto QC submitted that the offender's experiences as a child in China are relevant to sentence. He submitted that the offender "grew up in an environment where she was exposed to violence by her biological father, corporal punishment at school, neglect and isolation arising from abandonment by her parents". He referred to an opinion of Dr Furst that the offender had "developed [an] insecure pattern of attachment, a psychological/developmental construct that relates to the security of childhood and adult relationships, typically manifesting in a fear of abandonment, clingy and/or insecure relationships, dependence on others and/or co‑dependent relationships". In describing the effect of a deprived background on the sentencing exercise, the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [44] ("Bugmy") observed that "an offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced", but also noted that "an inability to control the violent response to frustration may increase the importance of protecting the community from the offender". In the offender's case, Dr Furst's opinion may provide an explanation for how the offender's break up with Ms Zhou affected her so profoundly. However, an explanation is one matter, a mitigating feature is another. The offender had previous break ups that did not result in violence. In any event, she did not just respond to a break up with violence, she engaged in a form of premeditated murder. The offender's background was hard but she did not "grow up in an environment surrounded by alcohol abuse and violence" of the kind contemplated in Bugmy (at [43]). Her home environment throughout her teenage years was relatively calm and she performed well at school, although she and her family had to come to terms with her sexuality. By her early 20s she was in stable relationships, had solid friendships and was tertiary educated. I do not accept that the offender's moral culpability is reduced on account of her background or that it warrants extra consideration being given to specific deterrence.
8. In concluding his sentencing remarks, the judge summarised some of the pertinent features and they included: [34] The offender's personal circumstances including her mental health warrant some leniency but … general deterrence, retribution and denunciation are the dominant sentencing criteria in this case.
9. I turn to the "new" evidence relied upon by the applicant in this Court.

Third report of Dr Furst, 7 May 2021

1. Dr Furst was approached by solicitors acting for the applicant in proposed proceedings in this Court. He was provided with the judge's remarks on sentence and his attention was drawn to paragraphs 49 and 51. Paragraph 49 comprised his Honour quoting from page 10 of the second report (see above at [55]). Paragraph 51 comprised his conclusion as to the significance of the applicant's mental condition (see above at [67]). The solicitors asked Dr Furst whether what the judge said was congruent with his opinion and if not to clarify or expand upon the issue.
2. The most relevant aspect of Dr Furst's response was contained in the following: [35] I am of the opinion that the effects of her depression and related cognitive distortions were significant and were active when Ms Wang originally formed the intent to kill the deceased on the night in question, not just in relation to her failure to desist from killing the deceased after she had decided to kill her. The essential reason for my opinion, in this respect, was that Ms Wang was in a disordered state of mind by virtue of her severe depression and her associated thought processes, including negative/nihilistic thinking, and this likely contributed in a material way to her poor decision-making in the first place when she decided to kill her ex-partner and then did so. Her severe depression and mental disorder also contributed to impairment (although not a complete impairment) of her capacity for self-control through a combination of agitation, disinhibition, impaired consequential thinking and heightened emotional arousal at the index time on 17/06/19 at Zetland.
3. Dr Furst's attention was also directed to paragraphs 78 and 80 of the sentencing remarks: see above at [70]. These related to his Honour's consideration of a submission made by Mr Bellanto QC about the relevance of the applicant's negative childhood experiences. Dr Furst was again asked whether what the judge said was congruent with his opinion and if not to clarify or expand upon the issue. After referring to some matters of evidence, he responded in terms of matters he considered "likely" and similar: [36] In my opinion, it is more likely than not that Ms Wang's childhood difficulties, including the apparent harsh treatment that she encountered in her childhood involving unloving treatment whilst in long-stay day-care and witnessing domestic violence did have an adverse effect on her pattern of attachment [as outlined in paragraph 1, page 10 of my report dated 28/08/20]. [37] This, in turn, likely creates a vulnerability towards subsequent maladaptive traits in relation to her relationship with the deceased, Shuyu Zhou. Also, and having regard to the history of her severe depression that developed in the weeks after the break up and apparent betrayal/infidelity involving the deceased, it is likely that any underlying maladaptive traits and problems in relation to her attachment were magnified by her depressive illness and associated cognitive distortions, which may well account for her inability to cope after her break up with Shuyu Zhou in 2019, in contrast to the apparent absence of such difficulties some years ago when she broke up with Ms Liang and was not depressed at that time. Furthermore, the context of the offence that took place on 17 June 2019 at her apartment complex in [Zetland] was clearly causally related to the offender's refusal or inability to accept the relationship was over, as reflected in the Agreed Facts on Sentence accepted by his Honour [at 9]. Although it is difficult to provide categorical reasons for the offender's attitudes/perspectives in that respect (specifically, her inability to accept that the relationship was over), the most likely explanations relate to her underlying personality style, which includes an insecure pattern of attachment [referred to in paragraph 1, page 10 of my report of 28/08/20], coupled with the dynamics of her relationship with Shuyu Zhou, including ongoing feelings of betrayal and jealousy. Those issues/perspectives were likely magnified in her mind and more difficult to accept because of her severe depression at the time, which led to a reduction in her capacity for cognitive flexibility, problem-solving and effective decision making, i.e. the loss of a normal perspective on things. (Emphasis added)

Submissions in this Court

1. The submissions for the applicant quoted from the second and third paragraphs on page 10 of Dr Furst's second report (quoted above (at [55])). It was submitted, in effect, that Dr Furst had indicated the applicant's depressive disorder had affects beyond "probably" impairing her "capacity for self-control". [38]
2. However, it is important to note that Mr Odgers SC, who appeared for the applicant in this Court, made it unequivocally clear that there was no complaint of error by the sentencing judge in his consideration of the applicant's mental condition as it was described in the two reports by Dr Furst. There was no challenge to the findings made on the material that was before him. [39]
3. It was submitted that the applicant was not seeking to make a case that was in any way different from that which was presented at first instance. The third report of Dr Furst simply "clarified" or "supplemented" the case in certain material respects. [40]
4. It was submitted that to the extent there was ambiguity in the report of 28 August 2020, there was "clarification" in the further report of 7 May 2021 where, in the passage quoted above (at [74]) Dr Furst provided an opinion that "supports a conclusion that the applicant's depressive disorder did have a material effect on her moral culpability". [41]
5. A second way in which Dr Furst's further report was said to provide "clarification" was in asserting a causal link between the effects of the applicant's childhood experiences and the murder.
6. Mr Odgers SC accepted that Dr Furst's report of 28 August 2020 "did not expressly" assert a causal link between the murder and matters he described in that report and which were quoted in Mr Bellanto's written submissions [42] as deriving from the applicant's childhood; namely "an insecure pattern of attachment" and a consequential "fear of abandonment, clingy and/or insecure relationships, dependence on others and/or co-dependent relationships". However, it was submitted that "it may reasonably be inferred" that Dr Furst considered such a link existed. [43]
7. It was then submitted that "to the extent that it may be said that there is some ambiguity" in the report of 28 August 2020, Dr Furst "makes clear" his opinion in the further report of 7 May 2021 in the passage quoted above (at [75]). It submitted that "this evidence supports a conclusion that the applicant's 'hard' childhood did reduce her moral culpability for the murder to some extent". [44]
8. The written submissions concluded on this ground by asserting that a miscarriage of justice resulted from the sentencing judge's misunderstanding - "perhaps understandably, given the way the opinion was expressed" - of the evidence of expert opinion adduced on behalf of the applicant. "Clarification" of the opinion demonstrated a significantly lower level of culpability than the judge appreciated. [45]

Principles in relation to "fresh" or "new" evidence

1. It is a well-established principle that parties are bound by the manner in which their cases were presented at first instance: R v Birks (1990) 19 NSWLR 677 at 683E-684F. The practical effect of this for present purposes is that, as a general proposition at least, the applicant is bound by the decisions made by her counsel as to the tender of the reports by Dr Furst in the form they were in, without seeking any further clarification or supplementation by the doctor as to their content. Such a general proposition is not insurmountable as this Court will always intervene to address any serious miscarriage of justice. However, the applicant faces a significant hurdle in establishing this when she had the benefit of one of the most senior and experienced Queen's Counsel appearing for her who was armed with expert reports from one of the most renowned and respected forensic psychiatrists.
2. The applicant also has the hurdle of showing that the Court is able to receive the additional evidence in the form of the third report of Dr Furst. The principles on this subject were carefully and helpfully set out in the judgment of Simpson J (as her Honour then was) in Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 at [104]-[121].
3. As the Crown pointed out, where evidence is sought to be adduced of facts or circumstances which existed at the time of sentencing, even if not then known, or imperfectly understood, where the interests of justice have so dictated the Court has admitted additional evidence in order to correct the misunderstanding. The basis for this position has been that although on the state of the evidence before the sentencing judge no error could be identified, the sentencing proceeded upon an erroneous view of the factual circumstances: R v Smith (1987) 44 SASR 587; Khoury v R at [113]. [46] Simpson J referred to the judgment of King CJ in R v Smith at 588 where he said that "it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence".
4. ZZ v R [2019] NSWCCA 286 is an example where the true significance of material before a sentencing judge was not appreciated at the time. A drug importer had provided police with the name, description and whereabouts of the person who had recruited her but at the time of sentencing it was not known whether the information was truthful because the Australian Federal Police had not sent the information to police in the offender's home country for assessment. The sentencing judge did not provide any allowance for assistance to authorities. It was subsequently confirmed that the information was truthful and thereby of value. Evidence of the true position, only generated post-sentencing, was allowed on the appeal and the offender was resentenced.
5. At the end of her summary and discussion of the relevant principles in Khoury v R, Simpson J said the following (at [118]-[121]): One question which has arisen, but not, so far as I am aware, finally decided, concerns the proper identification of the evidence that is said to have been unavailable, or not presented, at the time of sentencing. That was expressed by Basten JA in Einfeld in the following way: "45 Whether the relevant 'event or circumstance' is the psychological condition, or the diagnosis, is one of the matters which has not been definitively resolved. There are fine distinctions to be drawn, in a practical way, between susceptibility to and suffering from a particular condition, different degrees of a known condition and the development of a syndrome (such as AIDS) from an infection (with HIV). ... 50 ... there is a fine line between a psychiatric condition which existed at the relevant time and a diagnosis which occurred subsequently." In Fordham , Howie AJ (as he then was) referred to a psychological report that had been prepared after sentencing. He held, accordingly, that the report was either fresh or new evidence (and admissible only if proper grounds were established). For myself, I would question the too ready acceptance that a psychological report post dating sentencing, is, because it is prepared after sentencing, fresh or new evidence. The substance of the evidence is not the existence of the report, but the history and opinions expressed in the report concerning the applicant's psychological condition. That may or may not be something of which the offender was (or his legal representative were) aware at the time of sentencing, but it is almost certainly evidence that, in the ordinary course, could with reasonable diligence have been obtained prior to sentencing. That the evidence may cast light on circumstances known, but not fully appreciated, at sentencing, does not dictate that it will be admitted. The judgment remains a discretionary one. It is proper for the Court [to] examine the circumstances of, and any explanation for, the non-production of the evidence - a deliberate decision on the part either of the applicant, or his or her legal representatives, ignorance in the applicant of the significance of the evidence, resulting in its not being communicated to the legal representatives, incompetent legal representation. At the outer limits, the cases also include those in which post sentencing circumstances are taken into account as relevant to known pre-sentencing circumstances (for example, Springer ). Also relevant will be the potential significance of the evidence to have affected the outcome at first instance (for example, Ashton). (Emphasis added)

Consideration

1. In the present case there is no explanation for the opinion provided by Dr Furst in his third report not having been provided in either of his earlier reports except to say that it is nothing new or different; it is simply a "clarification" or "supplementation" of what he had already said.
2. In response to questions from the bench at the hearing of the application, Mr Odgers SC accepted as a fair summary the following: [47] 1. The opinions in the terms in which they are expressed in Dr Furst's report of 7 May 2021 could have been provided in his reports tendered to the sentencing judge. 2. Very experienced senior counsel seemingly had no concerns about the content and terms of the two reports he tendered and used to argue the applicant's case. 3. The judge said in his judgment, in effect, that he did not accept certain things were established by the reports. 4. The applicant subsequently told the psychiatrist of the judge's non-acceptance of certain matters and the psychiatrist wrote a further report, saying things he could have said before. 5. As a result of this process, this Court was now being asked to quash the sentence imposed by the primary judge and exercise the sentencing discretion afresh.
3. These circumstances are, to my mind, a very good reason for the Court to exercise its discretion to reject the third report of Dr Furst. The applicant's approach is antithetical to this Court being one of error, not of rehearing pleas in mitigation of sentence.
4. Mr Odgers also indicated he was unaware of any case in which what was being attempted here has been done before. Undeterred, however, he submitted it was only since obtaining the report of 7 May 2021 that it had become clear that Dr Furst's opinions had not previously been articulated clearly: "Nothing has changed in terms of his opinion, it is the clarity with which he conveyed it". [48]
5. Ultimately, it was submitted to be in the interests of justice that the further report of Dr Furst be received and that this ground be upheld.
6. It is necessary to keep in mind in the consideration of this ground that it is concerned with opinions expressed by a psychiatrist that are based upon an untested and unverified history provided by the applicant. The Crown at first instance took exception to the psychiatric reports being tendered to the sentencing judge who responded that it was a matter of weight.
7. The major thrust of the defence case at first instance in relation to the applicant's mental condition was directed to her ability to control herself at the critical time. So much is clear from the summary of the submissions made by Mr Bellanto QC provided above. It was open to the sentencing judge to conclude that the genesis of the applicant's decision to kill Ms Zhou was not to be found in her mental condition. It was not incumbent upon him to accept the contrary opinion of a psychiatrist in the face of clear evidence of the applicant appearing to make a considered decision about her actions. The killing was not carried out spontaneously or immediately by way of impulse or lack of inhibition, beyond the scope of reasonable self-control. The actions of the applicant, as described in a statement of facts with which she expressly agreed and as depicted on CCTV footage, were borne of contemplative thought.
8. The sentencing judge was alive to the entirety of what Dr Furst had said, not merely that which concerned the question of self-control. His Honour had regard to all of what was said that potentially bore upon whether there was a causal link between the mental condition and the offending. It was open to the judge to reject that there was.
9. There was nothing ambiguous or lacking in clarity in the way Dr Furst expressed his opinion as to this potential link. The fact is it was not a link that was established in a compelling way. That may explain the rather muted way in which submissions were advanced on the subject beyond the loss of control aspect.
10. The judge was prepared to find, nonetheless and as the Crown had conceded, a degree of diminution of the applicant's moral culpability. That did not dictate any significant reduction in the emphasis to be given to general deterrence. As Hunt CJ at CL observed in R v Wright (1997) 93 A Crim R 48 at 51, where an offender acts with knowledge of what they are doing and with knowledge of the gravity of their actions, the moderation of the need for general deterrence need not be great.
11. It is not in the interests of justice and nor otherwise is there any principled basis upon which this Court should receive a further expression of Dr Furst's opinion which is to the same effect, albeit possibly in more emphatic terms.
12. The second limb of the applicant's argument relates to the influence of her childhood experiences. The manner in which the sentencing judge rejected the submissions that sought to characterise the applicant's childhood experiences as warranting a reduction of moral culpability on the basis identified in Bugmy v R was well open to him. There was no firm evidentiary basis for otherwise concluding that such a finding was warranted.
13. The tenuous basis of the applicant's argument on this second-limb issue was exposed by Mr Odgers' concession that Dr Furst had not expressly asserted a causal link between the childhood experiences and the offending but that "it may reasonably be inferred" that Dr Furst had at least thought about it (see above at [81]).
14. The tender of the report of Dr Furst of 7 May 2021 should be rejected. It follows that this ground must fail.

Ground 2 - error as to the term of imprisonment imposed in a "comparable" case

1. The parties referred the judge to sentences imposed in some other cases. They acknowledged the limitations in doing so but referred to the cases as providing a "yardstick". The defence provided a "schedule of [seven] comparative sentences for guidance as to the appropriate penalty". The cases involved sentences (or starting points before discounting where there was a plea of guilty) ranging from 21 years to 28 years. The Crown referred to three cases that "may assist to some degree in that they all involve stabbing murders in the context of a prior domestic relationship". The cases were R v Villaluna [2017] NSWSC 1390 (a starting point of 40 years); R v Cullen [2015] NSWSC 768 (a sentence of 30 years); and R v Mulvihill [2014] NSWSC 443 (a sentence of 29 years). [49] While the Crown selected cases on the basis of the characteristics referred to, it did not suggest that they established a "range" of sentencing for murder offences of this particular type.
2. The Crown's written submissions erroneously referred to the sentence in R v Cullen as being 30 years and 6 months instead of 30 years. The judge inadvertently repeated the error in his sentencing remarks. [50]
3. Mr Bellanto QC made submissions about each of the cases relied upon by the Crown and referred to the Crown's written submissions about them. It appears he did not notice the error. [51]
4. The judge acknowledged the limitations on using sentences imposed in other cases, citing Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]-[54]. In relation to the cases referred to by the defence he said that "most of them involved a spontaneous, albeit very violent, act and did not display the level of deliberateness shown by this offender". He then made comments about the three cases referred to by the Crown. He said there were some similarities between the present case and R v Villaluna, but it was not as serious. He referred to R v Cullen and R v Mulvihill and said: I have found these cases of assistance. The relevant findings that I have made make this case slightly more serious than Mulvihill and comparable to Cullen. However, no two cases are the same and individual sentencing outcomes do not establish binding sentencing principles (Hili at [54]).
5. The applicant now contends that the error in referring to the sentence imposed in R v Cullen as being one of 30 years and 6 months instead of just 30 years was one that may have affected the exercise of the sentencing discretion, in part because the judge said it was "comparable". It was submitted that this requires the Court to engage in a fresh exercise of the sentencing discretion in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].
6. This ground is sadly lacking in merit and it is unnecessary to dwell upon it. Having regard to the limited utility in referring to sentencing in other cases, a point which the judge well recognised, such a trivial error cannot conceivably have had any bearing upon the exercise of the sentencing discretion: Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255. [52]
7. This ground must be rejected.

Ground 3 - failure to ensure reasonable consistency of sentence

Ground 4 - manifest excess

1. The applicant's contention in respect of Ground 3 is that the judge "erred in taking into account these 3 cases [i.e. those referred to by the Crown] in failing to ensure reasonable consistency of sentence". It was submitted that the offenders in those cases did not have subjective factors operating in mitigation of penalty as there were in the present case, namely prior good character, mental health issues, remorse, low risk of serious reoffending, and onerous conditions of incarceration. It was submitted that giving inadequate account to the applicant's favourable subjective matters led to the imposition of a manifestly excessive sentence. [53]
2. The applicant sourced the requirement for "reasonable consistency" to Hili v The Queen; Jones v The Queen at [47] and [49].
3. In submissions at the hearing of the application, Mr Odgers argued that the judge gave excessive importance to the objective seriousness of the offending in comparing the cases. His Honour regarded the present case as "not as serious" as R v Villaluna, "comparable" to R v Cullen, and "slightly more serious" than R v Mulvihill. It was contended that error was apparent when the starting point for the sentence in the present case, with the favourable findings as to subjective matters, was 34 years, whilst, absent those subjective matters, the starting point or sentences in the other cases were 40 years, 30 years and 29 years respectively. [54]
4. Mr Odgers SC confirmed at the hearing of the application that Ground 4 was based solely upon the applicant's sentence being assessed in the light of R v Villaluna, R v Cullen and R v Mulvihill. [55]
5. The Crown submissions involved analysis of features of the three cases with comparison to the applicant's case in support of its contention that the applicant's sentence was not manifestly excessive.

Consideration

1. The premise underlying the applicant's argument in relation to both grounds is that a requirement for "reasonable consistency" obliged the judge to determine upon a sentence with the relative sentences imposed in two or three other cases in mind and with an allowance made in the applicant's favour for the subjective mitigation to which she was entitled.
2. The applicant's argument is to the effect that the starting point for her sentence should have been less than that imposed in R v Cullen because that case was found by the judge to be of "comparable" seriousness and the applicant had some subjective matters in her favour. In other words, the fact that the starting point for her sentence (34 years) was higher than the sentence in R v Cullen (30 years) means that there has been a failure to comply with a requirement for reasonable consistency and/or a misapplication of principle in some respect which cannot be precisely identified.
3. The reference in Hili v The Queen; Jones v The Queen at [47] to "reasonable consistency" was in the plurality's quotation from the judgment of Gleeson CJ in Wong v The Queen (2001) 207 CLR 584 at 591[6]; [2001] HCA 64. Their Honours immediately stated (at [48]) that, "[c]onsistency is not demonstrated by, and does not require, numerical equivalence". It may be noted as well that "comparable" does not mean "identical"; it is defined in the Macquarie Dictionary as meaning "capable of being compared" or "worthy of comparison".
4. The Crown did not refer to the three cases as establishing a "range" of sentences. It referred to the limitation of comparisons with other cases, cited Hili v The Queen; Jones v The Queen at [53]-[54], and said "nevertheless the [three] cases may assist to some degree in that they all involve stabbing murders in the context of a prior domestic relationship". The judge considered the cases in that way, concluding his remarks in relation to the exercise by saying: [56] However, no two cases are the same and individual sentencing outcomes do not establish binding sentencing principles (Hili at [54]).
5. There was no error in the way in which the judge considered the cases to which he had been referred. He would have fallen into error if, for example, he had identified some other case as identical in objective seriousness and then made adjustments based upon differences in subjective cases in order to arrive at the sentence he would impose. (See RCW v R (No 2) [2014] NSWCCA 190; (2014) 244 A Crim R 541 where this Court quashed a sentence assessed in that way.) Such an approach is the antithesis of instinctive synthesis: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.
6. Mr Odgers did not suggest that the foregoing was the approach the judge ought to have taken. However, it is the practical effect of the "reasonable consistency" approach his Honour is alleged to have erroneously breached. But just as such an approach is erroneous at first instance, it is equally so in an appellate context in assessing whether a sentence is unreasonable or unjust and thereby manifestly excessive (or inadequate).
7. These grounds must be rejected.

Orders

1. I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal against sentence dismissed.
2. DAVIES J: I agree with R A Hulme J.

Endnotes

1. Remarks on sentence (ROS), i.e. R v Wang [2020] NSWSC 1335, [2]
2. The first in the list is from ROS, [41]; the balance are from the Applicant's written submissions (AWS), [4]
3. AWS, [9]
4. Defence written submissions (DWS), [77]; Report of Dr Richard Furst, 28 August 2020, p 10.1, referred to and quoted by his Honour at ROS, [78]
5. ROS, [81]
6. ROS, [83]
7. Tcpt, 14 September 2020 (POS), pp 15-6
8. Report of Dr Furst, 23 July 2019, pp 5-6
9. The section has since been amended. The defence remains but is now termed substantial impairment by mental health or cognitive impairment.
10. Report of Dr Furst, 23 July 2019, p 7
11. Report of Dr Furst, 28 August 2020, pp 2-3
12. Report of Dr Furst, 28 August 2020, p 3
13. Report of Dr Furst, 28 August 2020, pp 6-7
14. ROS, [53]
15. ROS, [54]
16. Report of Dr Furst, 28 August 2020, p 10.1
17. Report of Dr Furst, 28 August 2020, p 10.3-5
18. DWS, [17]
19. DWS, [32]-[33]
20. DWS, [71]-[72]
21. Report of Dr Furst, 28 August 2020, p 10; DWS, [77]
22. POS, p 21.40
23. POS, p 22
24. POS, p 23
25. POS, p 24
26. "Further Submissions (Mental Health) - Crown", [17]-[19] (AB 213-4)
27. POS, p 18
28. ROS, [47]
29. ROS, [48]-[49]
30. ROS, [50]
31. ROS, [51]
32. ROS, [61]-[63]
33. ROS, [78]-[81]
34. ROS, [105]
35. Report of Dr Furst, 7 May 2021, p 3
36. Report of Dr Furst, 7 May 2021, pp 4-5
37. Quoted above at [54]
38. AWS, [18]
39. For example: AWS, [26]; Applicant submissions in reply (AWS Reply), 1-(b); Tcpt, 1 November 2021 (T), pp 4.3, 8.44
40. AWS, [26]; AWS Reply, 1, [2]; T4.10, 6.9, 7.12, 10.30
41. AWS, [19]-[20]
42. DWS, [77]
43. AWS, [21]-[23]
44. AWS, [24]-[25]
45. AWS, [26]
46. Crown's written submissions (CWS), [14]
47. T6
48. T7.39
49. DWS [95]; Crown written submissions at sentence (CWSS), [21]-[22]
50. CWSS, 22; ROS, [102]
51. POS, pp 26-7
52. Curiously, the applicant's submissions include reference to unreported decisions of this Court that refer to, or emanate from, other unreported decisions that are traced to the judgment of Basten JA in Newman v R [2019] NSWCCA 157, while making no reference to Lehn v R, a five-judge bench case published in the authorised reports.
53. AWS, [31], [34]
54. T12.20-12.43
55. T13.6
56. ROS, [104] 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: 01 December 2021