DPP v Zhuang
[2015] VSCA 96
•13 May 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0191
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| HUAJIAO ZHUANG | Respondent |
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| JUDGES: | REDLICH, PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 April 2015 |
| DATE OF JUDGMENT: | 13 May 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 96 |
| JUDGMENT APPEALED FROM: | [2014] VSC 371 (Kaye J) |
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CRIMINAL LAW – Sentence – Director’s appeal – Murder – Whether sentence of 18 years with non-parole period of 13 years and 6 months manifestly inadequate – Principles to be applied in Director’s appeals – Comparable cases – Use of ‘like’ cases – Relevance of likelihood of deportation at conclusion of sentence – Sentence manifestly inadequate – Residual discretion – Onus of proof – CMB v Attorney-General (NSW) (2015) 317 ALR 308 considered – Appeal allowed – Respondent resentenced to 22 years with non-parole period of 17 years – ss 289, 290 Criminal Procedure Act 2009.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr G J C Silbert QC with Ms D I Piekusis | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the Respondent | Mr D D Gurvich with Mr P J Smallwood | Victoria Legal Aid |
REDLICH JA
PRIEST JA
BEACH JA:
Introduction
On 5 June 2014, following a trial in the Supreme Court, the respondent was found guilty of the murder of Selina Lin. Following a plea hearing that was conducted on 12 June and 1 and 8 August 2014, on 13 August 2014 the respondent was sentenced to a term of imprisonment of 18 years with a non-parole period of 13 years and six months.
The Director of Public Prosecutions has appealed against the respondent’s sentence on the ground that the sentence imposed and the non-parole period are manifestly inadequate in all the circumstances.[1] The Director has particularised this ground as follows:
[1]Criminal Procedure Act 2009, s 287.
In fixing a term of 18 years imprisonment and a non-parole period of 13 years 6 months, the sentencing Judge —
(a)failed to impose a sentence that properly reflects a grave example of the most serious offence known to the law;
(b)failed to sufficiently punish the offender to an extent which is just in all the circumstances;
(c)failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged;
(d) failed to give sufficient weight to the principle of general deterrence;
(e)failed to have sufficient regard to the maximum penalty prescribed for the offence;
(f)failed to have sufficient regard to the impact of the offence upon the family of the deceased victim;
(g)failed to have sufficient regard to aggravating features of the offending, and in particular —
·The two prior incidents of violence committed against the deceased;
· The steps taken by the Respondent to conceal the deceased’s body;
· The absence of remorse by the Respondent
(h)gave to much weight to mitigating factors concerning the offender, in particular —
·her absence of prior convictions;
·her unlikelihood of reoffending;
·her previous good character;
·her prospects for rehabilitation;
·the risk of deportation.
Circumstances of the offending
Selina Lin was born in the Fujian province of China on 10 September 1990. At the time of her death, she was 21 years of age. Ms Lin came to Australia on her own at the age of 16 in order to complete her secondary school education. She was the only child of Ms Shui Weng Cheng.
Shortly after leaving school, she met and subsequently became engaged to the respondent’s son, Rong Ping (otherwise known as Peter). They married in February 2010 and their son, Alfred, was born on 21 May 2010.
The respondent is also from the Fujian province. She was born on 19 July 1963. In addition to Peter, the respondent has two daughters, Guimei (May) and Xuemi (Suki). They both migrated from China to Australia in about 2002. The respondent remained in China with her husband at the time. Subsequently, the respondent came to Australia in January 2010 to look after Ms Lin during her pregnancy. The respondent lived with her daughter May, and her family, in Reservoir, although she returned to China from time to time to visit family.
When Peter and Ms Lin were engaged, the respondent supported their marriage. The respondent assisted Ms Lin during the latter stages of her pregnancy, and helped with household duties. After the birth of Alfred, the respondent stayed with Peter and Ms Lin for one month, and looked after Alfred. At that stage, the relationship between the respondent and Ms Lin had been quite good.
However, approximately one month after Alfred’s birth, the relationship between the respondent and Ms Lin deteriorated badly. As part of the respondent’s culture, she expected Ms Lin to call her ‘mother’ and be deferential to her. The respondent also expected that Peter, being the eldest son, and his wife, would live with her after they were married.
Shortly after Alfred’s birth, Ms Lin reported to a close friend that she felt that the respondent interfered too much in her marriage and was causing difficulties in it. As a result, she sought to distance herself, and Peter and Alfred, from the respondent.
The relationship had deteriorated to a point there were two reported incidents of physical violence by the respondent towards Ms Lin. On one occasion in July 2011, as a result of an argument the respondent had with Ms Lin, the respondent cut the back of Ms Lin’s hair with scissors. The respondent also assaulted Ms Lin by striking her to the face. Police attended the scene of this incident. On another occasion in 2011, Ms Lin telephoned a close friend in a distressed state reporting that she had been assaulted by the respondent. When the friend arrived at the house, the respondent reported to him that Ms Lin was not a good daughter-in-law and deserved to be beaten.
In 2012, Ms Lin, Peter and Alfred were living in premises in Bundoora. In the early part of 2012, the respondent had travelled to China for a visit. She had returned approximately one week before the incident in which Ms Lin died.
On 3 May 2012, the respondent requested her daughter, May, drive her to the premises in Bundoora so she could visit her grandson. The respondent was taken to the Bundoora premises, arriving there at about midday. Subsequently, in the middle of the afternoon, an argument developed between the respondent and Ms Lin. In the course of that argument, the respondent took hold of a hammer and struck Ms Lin’s face and head with more than 30 blows with it. The respondent also inflicted a number of blows to Ms Lin’s arms and hands while she was trying to defend herself. As a result of that beating, Ms Lin died. Post-mortem investigations revealed that Ms Lin had sustained 33 separate injuries to her head and face. There were more than 30 lacerations to the scalp and face. She also had a depressed fracture to the rear of the skull thought to be caused by more than one blow to the head in that area. Ms Lin also sustained a fractured jaw and fractured nose. She also had a number of defensive injuries to her arms and fingers, including bruising and lacerations and a fractured finger on the right hand.
Almost immediately after killing Ms Lin, the respondent took possession of a zip-up nylon suitcase and placed Ms Lin’s body in it. The respondent cleaned parts of the premises. She then removed a wheelie bin from a neighbour’s property and placed the bag containing Ms Lin in it together with the cloth and towels used to clean up the premises. The respondent then returned the bin to its position outside the neighbour’s house. Having done so, the respondent departed the house, leaving her two year-old grandson alone and unattended.
The respondent made telephone contact with her eldest daughter, May, and arranged for her to meet her at the nearby Bundoora Shopping Centre. In response, May collected the respondent from the shopping centre and drove her home. At the respondent’s request, she later drove her to the home of her other daughter, Suki, in Coburg, where she stayed overnight. At approximately 2:00am the next morning, the respondent woke Suki and requested that she drive her back to the Bundoora premises. When they arrived, the respondent took possession of the wheelie bin containing Ms Lin’s body, and pushed it, some 800 metres, to Darebin Creek. There, the respondent tipped the bag containing the body down a steep bank into the creek, and hid the bin in some nearby bushes. The respondent then returned to Suki’s vehicle and Suki drove her back to her home in Coburg.
Later that same morning, the respondent spoke to both her daughters and told them in brief terms that she had to defend herself and Alfred from Ms Lin. Ultimately, on the morning of 4 May 2012, the respondent surrendered herself to police. She told police that she and Ms Lin had an argument when Ms Lin was preparing to place Alfred in the bath. The respondent considered that Selina had put in too much water and that the water was too hot. The respondent told police that Ms Lin took the hammer and tried to assault her. The respondent told police that she managed to grab the hammer from her daughter-in-law and that she struck her to in order to protect herself and Alfred from her.
The respondent was examined by a medical practitioner during the evening of 4 May 2012. The respondent did not complain of any pain or injury, other than a sore back which occurred when she fell over during the incident. The doctor could not find any sign of injury sustained by the respondent. The principal issue at trial was one of self-defence.
The judge’s reasons
The judge commenced his reasons with a detailed recitation of relevant background facts and the circumstances of the murder.[2] The judge described the respondent’s conduct immediately after murdering Ms Lin as doing the respondent ‘no credit at all’.[3] The judge described that conduct as an aggravating feature of the respondent’s offending.[4] However, the judge accepted that this conduct was ‘to a reasonable degree’ offset by the respondent’s conduct of voluntarily attending at the police station and confessing that she had killed Ms Lin.[5]
[2]DPP v Zhuang [2014] VSC 371 (‘Reasons’).
[3]Reasons, [26].
[4]Ibid [27].
[5]Ibid.
The judge then dealt with the impact of the respondent’s crime upon her primary victim, Ms Lin, and Ms Lin’s mother, Ms Lin’s two year old son and Ms Lin’s husband.[6]
[6]Ibid [28]–[30].
Next, the judge dealt with the respondent’s personal circumstances, including the evidence of a consultant psychiatrist who had examined the respondent while she was in prison.[7] The respondent was born in China in 1963 and lived there until 2010. Her life in China was, as the judge put it, ‘marked by an ongoing struggle with hardship, in which [the respondent had] made great sacrifices for [her] family’.[8] Food was scarce when the respondent was young, and she lived an impoverished life. The respondent’s mother committed suicide at the age of 18 years. After the respondent married, she fell foul of China’s one child policy. This involved further significant hardship for the respondent.
[7]Ibid [31]–[44].
[8]Ibid [32].
The judge concluded that the respondent’s period of imprisonment would be additionally burdensome for her because of psychological issues (diagnosed either as an adjustment disorder with depressed mood, or a major depressive episode), the respondent’s limitations in the English language, the respondent’s limited education, her lack of cultural adaption, and the fact that it would be a restricted family circle who would visit her over the years of her imprisonment.[9]
[9]Ibid [45].
The judge then dealt with the risk that the respondent would be deported following the serving of any sentence of imprisonment. The judge said:
In addition, it is relevant that, at the conclusion of your sentence, you may be liable to be deported as a result of your conviction in this case. In particular, in those circumstances, the Minister of Immigration possesses a discretion to order your deportation on the grounds of your character. The question, whether you will be deported, will be a matter for the exercise of ministerial discretion at the conclusion of your sentence. Neither your representatives, nor the prosecution, have been able to obtain any information, or data, relating to the manner in which that discretion is currently exercised. Nevertheless, taking into account the provisions of the Act, and the ministerial direction that was provided to me in the course of your plea, I am satisfied, for the purposes of sentencing you, that there is a realistic risk that you might be deported at the conclusion of your term of imprisonment.
That conclusion is relevant for two reasons. First, I accept that, during the term of your imprisonment, you will face the possibility that you might be deported upon your release. I have no doubt that that matter will weigh heavily on your mind, and will add to the burden of a sentence of imprisonment on you. Secondly, if you are deported, that would constitute a serious punishing consequence to you resulting from your offending in this case.
In light of the length of your term of imprisonment, it is not feasible to sensibly quantify the level of the risk that you may be deported. However, given the seriousness of your offending, and other matters referred to in the ministerial direction, I am satisfied that there is a realistic risk that you may be deported at the conclusion of your term of imprisonment. To that extent, it is appropriate that I take into account that risk as a potential additional punishing consequence resulting from your conviction in this case.
The prospect of deportation for you is a most serious matter. Your two daughters, and their families, have settled in Australia. By the time of your release, it is most unlikely that either of them would be able, or wish, to uproot themselves and their families, and return to China, in order to be with you. You have few family members living in China. If you were required to return to China, that would occur after you had lived in this country for a substantial period of time. In all those circumstances, it would be extremely difficult for you to adjust to your return to China. Hopefully all of those matters would be given sympathetic consideration by the Minister, in the exercise of his or her discretion, at the relevant time. However, for the purposes of sentencing you, I have no doubt that the matters that I have just discussed will weigh most heavily on you during the term of your imprisonment. They also satisfy me that, if you were deported at the conclusion of your term of imprisonment, that would be a particularly grave additional punishing consequence to you resulting from your offending.[10]
[10]Reasons, [46]–[49].
While the judge did not expressly say anything about remorse, he expressed himself satisfied that it was most unlikely that the respondent would reoffend upon the completion of her sentence. To that extent, the judge concluded that the respondent’s prospects for rehabilitation were ‘particularly good’.[11]
[11]Ibid [50].
In imposing the sentence he fixed, the judge said:
In summary, then, you have been convicted of a most serious crime, namely the brutal murder of your daughter-in-law in her own home in the presence of her two year old son. The amount of violence involved in the attack, and the fact that you used a weapon to kill Selina, are serious features of your crime. The gravity of your offending was aggravated by your conduct in removing and seeking to dispose of Selina’s deceased body, in order to conceal your own guilt.
On the other hand, there are important mitigating circumstances in your case. I am satisfied that your offending was not premeditated, but, rather, was the result of an outburst of uncontrollable anger on your behalf which arose from the difficult relationship between yourself and Selina. Your subsequent conduct in reporting the death of Selina to the police, and assisting the police to locate and recover Selina’s body, substantially offset your earlier conduct in seeking to dispose of her body.
In addition there are a number of mitigating factors arising from your personal circumstances. Despite the fact that you have lived a most difficult life, you have devoted yourself to the welfare of your family. You are a person of otherwise good character, with no previous convictions. Apart from the two incidents involving Selina to which I have referred, you have no history of violence and you have not displayed any proclivity to violence during your time in custody. Further, for the reasons which I have already outlined, I am satisfied that a term of imprisonment will be substantially more burdensome for you. You have good prospects of rehabilitation, in that I am satisfied that there is little risk of you re-offending. You face a realistic risk of deportation at the conclusion of your term of imprisonment.[12]
[12]Ibid [51]–[53].
The appellant’s submissions
The appellant submits that the sentence imposed and the non-parole period are manifestly inadequate in all the circumstances. The appellant contends that the offending was grave, and points to the judge’s conclusions that the murder was an unpremeditated murder on a defenceless woman in her own home in the presence of her two year old son; was brutal, callous and cowardly; and was aggravated by the respondent’s post offence conduct. The mitigatory circumstances are said to be ‘meagre’, no discount being available for a plea of guilty. Further, no discount was available for remorse. Additionally, the appellant contended that such mitigatory matters as could be taken into account were limited to the respondent voluntarily attending the police station and confessing to the killing; matters personal to the respondent that would make imprisonment more burdensome; and the risk of deportation at the conclusion of the respondent’s sentence.
The appellant submits that the sentence is ‘illogical’ given its description as ‘a most serious crime’. Several cases — R v Wu,[13] R v Constantinou,[14] R v Xypolitos[15] and DPP (Vic) v Borg[16] — were relied on as supporting the proposition that the sentence imposed in this case is ‘palpably below murder sentences imposed after jury verdict’. The sentence was submitted to be ‘palpably below murder sentences imposed after jury verdict’. Further, it was contended that the sentence was ‘plainly below the permissible range’, given that the maximum penalty for murder is life imprisonment; and that this was a very serious example of murder; and that the sentence was imposed after a contested trial; and that there was no contrition, and otherwise very little by way of mitigation.
[13][2013] VSC 375.
[14][2013] VSC 474.
[15][2013] VSC 485.
[16][2013] VSCA 181.
The respondent’s submissions
The respondent submits that the appeal should be dismissed. On her behalf, it was contended that the trial judge’s sentencing remarks were comprehensive and carefully reasoned. There was no specific error. Relevant aggravating features and sentencing principles were not overlooked.
The respondent contends that the mitigating factors taken into account by the sentencing judge were important and substantial. Specifically, the respondent points to the following matters. The offending was not premeditated. The respondent reported the death to police and assisted police in locating and recovering Ms Lin’s body. The respondent had lived a very difficult life, yet had devoted herself to the welfare of her family. The respondent was a person of otherwise good character with no previous convictions. A term of imprisonment would be substantially more burdensome for the respondent because of continuing psychological issues, limitations with English, limited education, lack of cultural adaption and the restricted family circle who would visit her over the years. The respondent’s prospects for rehabilitation were particularly good, with little risk of the respondent reoffending. The respondent had been under ‘substantial psychological stress while in custody’, and there was a ‘realistic risk’ that the respondent will be deported at the conclusion of her sentence.
Further, the respondent submitted that there ‘is no general principle that establishes that a sentence of longer than 18 years imprisonment must be imposed upon a conviction for murder following a jury trial’. In support of this submission, the respondent referred to R v Karageorges,[17] R v Athuai,[18] R v Lam,[19] R v Rattya,[20] Romero v R,[21] Zaim v The Queen[22] and Dunne v The Queen.[23] In each of these cases, head sentences for individual counts of murder were either 18 years or, in some cases, a little lower.[24] The respondent cited these cases to demonstrate that sentences of the magnitude passed in the present case had previously been imposed following conviction for murder by jury.
[17][2006] VSCA 49.
[18][2007] VSCA 2.
[19](2008) 185 A Crim R 453; [2008] VSCA 109.
[20][2008] VSCA 149.
[21](2011) 32 VR 486.
[22][2011] VSCA 80.
[23][2011] VSCA 387.
[24]The shortest sentence for one count of murder was 14 years and six months, given to one of the accused in R v Lam (2008) 185 A Crim R 453; [2008] VSCA 109.
Additionally, the respondent submitted that the primary purpose of Crown appeals remains ‘to lay down principles for governance and guidance of courts having the duty of sentencing convicted persons’. It was contended that something more than manifest inadequacy was needed before a Crown appeal could succeed.[25] Further, it was contended, even if this Court was to find error, it was submitted that the residual discretion should be exercised and the appeal dismissed.[26] Moreover, the respondent contended that the burden of persuading the Court that the residual discretion should not be exercised, so as to defeat the appeal, rested on the DPP.
[25]Citing DPP v Bright (2006) 163 A Crim R 538, 542 [10] (Redlich JA) (‘Bright’).
[26]DPP v Chatterton [2014] VSCA 1, [84]–[85].
Comparable cases in sentencing
Before discussing some of the principles which guide the Court on a Crown appeal, given that both ends of the Bar table sought to derive comfort from cases that they cited as ‘comparable’, it is again necessary that this Court address the use — and limited role — of what are said to be comparable cases in sentencing at first instance and on appeal against sentence.
Sentences passed in other cases are not precedents which must be followed unless they are capable of being distinguished.[27] Every sentence must be the product of the intuitive synthesis of all factors relevant to the particular case, including the circumstances of the offender and the offence, and the aggravating and mitigating features. A general overview of sentences imposed for offences of a similar character may, however, play a part in informing the instinctive synthesis,[28] particularly insofar such an overview may provide a general guide to current sentencing practices.
[27]DPP v Adajian [1999] VSCA 105, [28] (Callaway JA).
[28]R v Giordano [1998] 1 VR 544, 549 (Winneke P); cf DPP (Cth) v Edge [2012] VSCA 289, [60] (Priest JA).
The selection of a sentence involves the exercise of a judicial discretion which is informed by the nature of, and circumstances in which, the offence was committed; and by the character, antecedents and circumstances of the offender. As to the identification of an appropriate range, by reference to ‘comparable’ cases concerned with the relevant category of seriousness of an offence, Redlich JA said in Ashdown:[29]
Cases are likely to be comparable where the objective seriousness of the offender’s conduct is similar to that of the subject offence. Decisions which involve conduct which fall outside the relevant category of seriousness for the subject offence may occasionally provide assistance in identifying indicative outer limits of the appropriate sentencing range. However it is [current sentencing practice], as revealed by those comparable cases concerned with the relevant category of seriousness of the offence, that will generally inform the range of sentences that are reasonably open to the sentencing judge. Hence appellate courts, including the High Court, may seek to identify the applicable range by characterising the objective seriousness of the offence as falling within the low, mid or the high range of seriousness of the offence. Hayne J described this range as the ‘permissible range of disposition’ in AB v R. There may also be a further narrowing of the range by asking whether the offence falls towards the lowest end, the middle or the upper end of that applicable range. Such focus upon the relevant range of sentences, or in times gone by, to the ‘tariff’ or ‘going rate’, provides guidance as to an indicative range for the category of seriousness of the subject offence and implies that the range is not unlimited.[30]
[29]Ashdown v The Queen (2011) 37 VR 341 (‘Ashdown’).
[30]Ibid 400–1 [174] (citations omitted).
Further, in Hudson,[31] the Court (Ashley, Redlich and Harper JJA) made a number of observations concerning the use of ‘like’ or ‘comparable’ cases, and made it plain that, at best, they can only provide a general guide or impression as to the appropriate range of sentences:
Sentences imposed in ‘like’ cases provide some indication of the range that is open in the proper exercise of the discretion. They will indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. A general overview of sentences imposed for offences of a similar character will play a part in informing the ‘instinctive reaction’ when a court is asked to consider whether a sentence is manifestly inadequate or excessive. They are an indicator of ‘current sentencing practices’ which is one factor that the court must consider under s 5(2) of the Sentencing Act 1991. By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law.
‘Like’ cases can only, at best, provide a general guide or impression as to the appropriate range of sentences. In that context it has been said on many occasions that ‘comparable cases’ can only provide limited assistance to this court. They may however be used in search of unifying principles. That was not the use to which counsel sought to employ them here.[32]
[31]Hudson v The Queen (2010) 30 VR 610 (‘Hudson’).
[32]Ibid 616–17 [27]–[29] (citations omitted). See also Hili v The Queen (2010) 242 CLR 520, 536–7 [53]–[54] (‘Hili’); Hasan v R (2010) 31 VR 28; FD v R [2011] VSCA 8.
The task of sentencing, or of assessing on appeal whether a sentence that has been imposed is manifestly excessive or inadequate, will on occasions be assisted by reference to ‘like’ cases. As Gleeson CJ said in a different context in Wong,[33] as a general principle ‘[l]ike cases should be treated in like manner’.[34] Sentences imposed for offences of a like character may play a part in informing the instinctive
synthesis,[35] particularly, as we have noted, insofar as such an overview may provide a general guide to current sentencing practices. They may provide an indication as to whether a particular sentences is or is not of the order ‘that might be expected to be attracted by a certain type of offender who commits a certain type of offence’.[36] Reference to such comparable cases can enhance ‘consistency in the application of the relevant legal principles’.[37]
[33]Wong v The Queen (2001) 207 CLR 584.
[34]Ibid 591 [6].
[35]R v Giordano [1998] 1 VR 544, 549 (Winneke P); cf DPP (Cth) v Edge [2012] VSCA 289, [60] (Priest JA).
[36]Ashdown (2011) 37 VR 341, 400 [174] (Redlich JA).
[37]Hili, 535 [49], 536 [53].
Recourse to other cases will, however, only provide some guidance as to the appropriate sentence where, having regard to the offending conduct, those cases may be seen to fall broadly within the same category of seriousness as the subject offence, and where the circumstances of the offender are not dissimilar. If that cannot be said, the cases will not be ‘like’ cases. Cases that are unlike may be useful only to a very limited extent, in that they may assist the court to identify ‘indicative outer limits of an appropriate sentencing range’.[38] Sentencing statistics for particular offences may serve a similarly limited function. Their citation will, save in unusual cases, be unhelpful in the sentencing task.
[38]Ashdown (2011) 37 VR 341, 401 [174] (Redlich JA).
The final observation in the quoted passage in Hudson[39] is apposite to the present case. Here, the respondent referred to the cases cited as cases in which a not dissimilar sentence for murder was imposed after a jury trial. On the other hand, the appellant referred to different cases where greater sentences were imposed following pleas of not guilty. But there were no commonalities between the cases cited and the instant case apart from the offence and the lack of a plea of guilty. The cases were selected by reference to the sentence imposed rather than the nature of the offending. Those relied on by the appellant involved offending for a different category of seriousness of the offence, being at the highest end of the spectrum. The comment by the sentencing judge in one of the cases that he had not in his career ‘encountered a crime as appallingly and gratuitously violent’ as that for which he then imposed sentence is sufficiently illustrative of the nature of the cases cited by the appellant.[40] On the other hand, the cases cited by the respondent involved offending at the lowest end of seriousness for the offence of murder. In those cases, because of the circumstances of the offence or the presence of powerful mitigating factors not present here, the cases fell within the lowest category of seriousness of the offence. When each party was pressed on the hearing of the appeal, it was conceded that the cases each cited were not ‘like’ cases, but were cases selected solely by reference to the sentences that were imposed therein. The cases were entirely unhelpful and should not have been cited. They deflected the parties from what should have been their focus: like cases that fell within the present category of seriousness of the offence and which informed current sentencing practice for such a case.
[39]Above, [32].
[40]R v Wu [2013] VSC 375, [5] (T Forrest J).
It should be emphasised that whilst like cases provide some insight as to the relevant current sentencing practice, as we have said, sentences passed in other like cases are not precedents which must be followed unless they are capable of being distinguished. The question whether a sentence is manifestly excessive or inadequate cannot be answered by a numerical comparison with other sentences imposed in other cases.[41] As the High Court explained in Munda,[42] past sentencing decisions do not define the limits of the sentencing discretion. Every case must turn on its own facts — including the particular features of aggravation and mitigation, and the individual circumstances of the offender and the offence — and be the product of the intuitive synthesis of those facts. And as was further said by the Court in Hudson:[43]
The selection of a sentence involves the exercise of a judicial discretion which is informed by the circumstances in which the offence was committed and the character, antecedents and conditions of the offender. It is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty. The method of instinctive synthesis will by definition produce outcomes upon which reasonable minds will differ. For that and other reasons, counsel are precluded from submitting that a specific sentence should be imposed.
[41]Hili, 358–9 [59].
[42]Munda v Western Australia (2013) 249 CLR 600, 631 [95].
[43]Hudson, 616 [27].
Resort to so-called comparative sentencing cases must not be permitted to obscure the essential sentencing task, which is, in the exercise of discretion, to craft a sentence which reflects all factors relevant to the individual case.
We turn to the principles that govern an appeal such as the present.
Governing principles
By virtue of s 287 of the Criminal Procedure Act 2009 (‘CPA’), the Director of Public Prosecutions (‘DPP’) may appeal against a sentence if he considers that there is an error in the sentence imposed and that a different sentence should be imposed, and he is satisfied that an appeal should be brought in the public interest. Section 289(1) provides that the Court must allow the appeal if satisfied that there is ‘an error in the sentence first imposed’, and that ‘a different sentence should be imposed’. Double jeopardy is addressed by sub-s (2), which provides that in considering whether an appeal should be allowed, the Court ‘must not take into account any element of double jeopardy involved in the respondent being sentenced again, if the appeal is allowed’. Unless the Court is satisfied that there is an error in the sentence, and that a different sentence should be imposed, s 289(3) requires the Court to dismiss the appeal.
Both before and after the promulgation of the CPA, the complaint of ‘error in the sentence first imposed’ has more often than not been embodied in a ground (or grounds) of appeal which asserts that a sentence is manifestly inadequate. The CPA provisions governing appeals by the DPP were considered in Karazisis,[44] in which the majority (Ashley, Redlich and Weinberg JJA) observed:[45]
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances.[46] As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge.[47] Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.
The Court will be astute to enforce the stringency of this test. As the High Court has emphasised:
The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[48]
[44]DPP v Karazisis; DPP v Bogtstra; DPP v Kontoklotsis (2010) 31 VR 634 (Warren CJ, Maxwell P, Ashley, Redlich and Weinberg JJA) (‘Karazisis‘).
[45]Ibid 662–3 [127]–[128] (emphasis added).
[46]R v MacNeil-Brown (2008) 20 VR 677, 680.
[47]R v Boaza [1999] VSCA 126, [42] (Winneke P).
[48]Lowndes v The Queen (1999) 195 CLR 665, 672 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
As was explained by Gleeson CJ and Hayne J in Dinsdale,[49] manifest inadequacy is a conclusion, not an expression of the reasons for that conclusion. Their Honours said:[50]
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at that conclusion. …
[49]Dinsdale v The Queen (2000) 202 CLR 321 (‘Dinsdale’).
[50]Ibid 325–6 [6] (emphasis added). See also DPP v Werry (2012) 37 VR 524, 534 [52]–[53] (Warren CJ, Maxwell P, Buchanan, Weinberg and Bongiorno JJA).
Kirby J, in whose judgment Gaudron and Gummow JJ agreed, made some pertinent observations concerning the kind of ‘error’ which justify appellate intervention on a DPP appeal. His Honour observed:[51]
The legal process before the Court of Criminal Appeal was, as described, an appeal. This is a creation of statute.[52] An appeal may take several forms, the precise nature in a particular case depending upon the legislation in question.[53] Here, that legislation, by providing for an appeal, required the demonstration of error before the appellate court enjoyed the authority to disturb the decision subject to appeal. In Lowndes v The Queen,[54] this Court remarked that:
‘a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. ... The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.’
The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence.[55] … Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it.[56] As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.[57]
[51]Ibid 339–40 [57]–[60] (emphasis added).
[52]State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306, 322 [72]; 160 ALR 588, 609.
[53]Fleming v The Queen (1998) 197 CLR 250, 258–260 [17]–[21]; cf Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, 297–298 (Glass JA).
[54](1999) 195 CLR 665, 671–672, [15].
[55]See eg R v Tait (1979) 24 ALR 473, 476; Allpass (1993) 72 A Crim R 561, 562; R v Clarke [1996] 2 VR 520, 522.
[56]Cf House v The King (1936) 55 CLR 499, 504–505.
[57]House v The King (1936) 55 CLR 499, 505; Cranssen v The King (1936) 55 CLR 509, 519–520; Harris v The Queen (1954) 90 CLR 652, 655.
As we have mentioned, counsel for the respondent submitted that ‘something more’ than manifest inadequacy is required before appellate intervention is warranted at the suit of the DPP. In our view, however, the respondent seeks to read too much into what the Court in Bright intended when speaking of ‘something more’. Redlich JA (with whom Chernov and Vincent JJA agreed) set out the relevant principles as follows:[58]
A number of the principles which govern appeals by the Director of Public Prosecutions are set out in R v Clarke[59] and Director of Public Prosecutions (Vic) v Johnston.[60] One is that an appeal should not be brought unless the sentence reveals such ‘manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle’.[61] An examination of authorities suggests, as was conceded by the Director in argument, that manifest inadequacy alone will not be sufficient to warrant appellate intervention. Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges.[62] The inadequacy of the sentence must be ‘clear and egregious’,[63] the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience[64] and ‘undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes’.[65] …
[58]Bright, 542 [10].
[59]R v Clarke [1996] 2 VR 520 at 522; (1996) 85 A Crim R 114 at 116-117.
[60]Director of Public Prosecutions (Vic) v Johnston (2004) 10 VR 85 at 96.-97.
[61]R v Clarke [1996] 2 VR 520 at 522 85 A Crim R 114 at 116 per Charles JA; Everett v The Queen (1994) 181 CLR 295 at 300; 74 A Crim R 241 at 244 per Brennan, Deane, Dawson and Gaudron JJ; Griffiths v The Queen (1977) 137 CLR 293 at 310 per Barwick CJ; Malvaso v The Queen (1989) 168 CLR 227 at 234; 43 A Crim R 451 at 456 per Deane and McHugh JJ; Director of Public Prosecutions (Vic) v Wilson (2000) 1 VR 481 at 488 per Winneke P.
[62]R v Osenkowski (1982) 30 SASR 212 at 212–213; 5 A Crim R 394 at 394 per King CJ.
[63]Director of Public Prosecutions (Vic) v Oversby [2004] VSCA 208.
[64]R v Clarke [1996] 2 VR 520 at 522; (1996) 85 A Crim R 114 at 116; R v Osenkowski (1982) 30 SASR 212 at 213; 5 A Crim R 394 at 394.
[65]Everett v The Queen (1994) 181 CLR 295 at 306; 74 A Crim R 241 at 249-250 per McHugh J.
Thus, in Hudson, the Court observed that where the error complained of by the Crown was one of manifest inadequacy, the appeal could not succeed unless it possessed those qualities that warranted intervention on a Crown appeal.[66] It is plain, in our view, that ‘something more’ will be present when the manifest inadequacy is such as to constitute error in principle. That approach is to be adopted in resolving the present appeal.
[66]Hudson, 627 [65].
Since Bright was decided, however, in its application to Crown appeals, double jeopardy has been abrogated.[67] Notwithstanding that this is so, however, in Karazisis, Ashley, Redlich and Weinberg JJA made clear that the residual discretion to refuse the appeal and alter the sentence survived the abolition of double jeopardy. Their Honours said of the residual discretion:[68]
It follows that, in our opinion, save for the abolition of the element of double jeopardy as a factor that can be taken into account in dealing with Crown appeals, the new provisions do not interfere in any way with the Court’s residual discretion to dismiss such appeals, even if satisfied that the sentence below was inadequate. Nor, save for the abolition of double jeopardy, do these new provisions interfere with the Court’s discretion in imposing a fresh sentence if the appeal is allowed. That conclusion derives both from the construction of the Act, and the long tradition in the common law of viewing Crown appeals as fundamentally different from appeals by convicted persons.
[67]CPA, s 289(2).
[68]Karazisis, 661 [119].
In Green,[69] the High Court reached the same view with respect to s 68A of the Crimes (Appeal and Review) Act 2001 (NSW), citing Karazisis with apparent approval.[70]
[69]Green v The Queen (2011) 244 CLR 462.
[70]Ibid 471–2 [26], n 69 (French CJ, Crennan and Kiefel JJ).
Given the burden of authority, it is not surprising that the Crown accepts that the relevant provisions of the CPA do not extinguish the residual discretion. As to the burden of persuasion, however, with respect to the exercise of the residual discretion, the respondent argued that the burden lay on the appellant to persuade the Court that the discretion should not be exercised so as to lead to dismissal of the appeal. Senior counsel for the appellant submitted to the contrary that, having regard to the terms of s 289 of the CPA, and in particular sub-s (1)(b), the onus rested upon the respondent to show reason why the discretion should be exercised in his favour to have the appeal dismissed. In our view, the respondent’s submission ought be accepted. It is supported by the long standing approach to such appeals in this State, and by the recent decision of the High Court in CMB.[71]
[71]CMB v Attorney-General (NSW) (2015) 317 ALR 308 (‘CMB’).
Section 5D of the Criminal Appeal Act 1912 (NSW) provides that the Attorney-General or the Director of Public Prosecutions ‘may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceeding to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper’. And s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) provides that an appellate court must not ‘dismiss a prosecution appeal against sentence’, or ‘impose a less severe sentence on any such appeal than the court would otherwise consider appropriate’, because of ‘any element of double jeopardy involved in the respondent being sentenced again’. In CMB, an appeal against sentence by the Attorney-General had succeeded in the Court of Criminal Appeal. The Court of Criminal Appeal had determined that the sentence passed at first instance was manifestly inadequate. When it then turned to the discretion in s 5D, the Court stated that it took the law to be that the respondent to an appeal under the section had the onus of establishing that the discretion should be exercised in his or her favour. Ultimately, the Court said that it was not satisfied that there was any reason why it should exercise the discretion not to intervene. The High Court concluded that the Court of Criminal Appeal had erred in its approach. French CJ and Gageler J said:[72]
[72]Ibid 315–177 [32]–[36]. See also 321–2 [54]–[58].
Section 5D of the Criminal Appeal Act serves the dual function of conferring capacity on the Attorney General or the DPP to appeal against a sentence pronounced by a court of trial in proceedings to which the Crown in right of New South Wales was a party, and of conferring power on the Court of Criminal Appeal in such an appeal to impose a different sentence. That power is conferred by the concluding words of s 5D(1) in terms that ‘the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper’.
Descriptions of the discretion expressly so conferred on the Court of Criminal Appeal as ‘residual’ ought not to be misunderstood. To enliven the discretion, it is incumbent on the appellant in an appeal under s 5D to demonstrate that the sentence pronounced by the court of trial turned on one or more specific errors of law or of fact, or, in the totality of the circumstances, was unreasonable or plainly unjust.[73] The discretion is residual only in the sense that its exercise does not fall to be considered unless that threshold is met. Once the discretion is enlivened, it remains incumbent on the appellant in an appeal under s 5D to demonstrate that the discretion should be exercised.
[73]Markarian v The Queen (2005) 228 CLR 357; 215 ALR 213; [2005] HCA 25 at [5]; Carroll v The Queen (2009) 83 ALJR 579; 254 ALR 379; [2009] HCA 13 at [7], 381 citing House v The King (1936) 55 CLR 499 at 504–5; [1936] HCA 40; Bugmy v The Queen (2013) 249 CLR 571; 302 ALR 192; [2013] HCA 37 at [51] (Bugmy).
Accordingly, as Heydon JA succinctly put it in R v Hernando (at [12]):[74]
[74](2002) 136 A Crim R 451 [12]; [202] NSWCCA 489 at [12] (Hernando).
… if [the Court of Criminal Appeal] is to accede to the Crown’s desire that the respondent be sentenced more heavily, it must surmount two hurdles. The first is to locate an appellable error in the sentencing judge’s discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised.
The Court of Criminal Appeal, in this case … was wrong to depart from that statement of the law.
The second of the two hurdles to which Heydon JA referred in R v Hernando has a statutory foundation and a systemic significance. Before s 5D of the Criminal Appeal Act was amended to add reference to the DPP, Barwick CJ said in Griffiths v The Queen:[75]
On my view of the proper meaning of s 5D in the context of the Criminal Appeal Act, an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.
With the clarification that the reference to ‘matter of principle’ by Barwick CJ ‘must be understood as encompassing what is necessary to avoid ... manifest inadequacy or inconsistency in sentencing standards,[76] his Honour’s explanation of the nature of an appeal under s 5D has since been said to represent ‘general and authoritative guidance to the Courts of Criminal Appeal of this country’.[77] It expresses the ‘limiting purpose’ of an appeal under s 5D, and in so doing provides ‘a framework within which to assess the significance of factors relevant to the exercise of the discretion’.[78]
Having found the sentence pronounced by [the sentencing judge] to be manifestly inadequate, the critical error of the Court of Criminal Appeal in the present case was to treat the residual discretion thereby enlivened as a hurdle for CMB to surmount rather than as the second of the hurdles for the Attorney General to surmount.[79]
[75](1977) 137 CLR 293 at 310; 15 ALR 1 at 17; [1977] HCA 44.
[76]Everett v The Queen (1994) 181 CLR 295 at 300; 124 ALR 529 at 532; [1994] HCA 49. See also Munda v Western Australia (2013) 249 CLR 600; 302 ALR 207; [2013] HCA 38. At [68]–[69] (Munda).
[77]Malvaso v The Queen (1989) 168 CLR 227 at 234; 89 ALR 34 at 38; [1989] HCA 58 (Malvaso).
[78]Green v The Queen (2011) 244 CLR 462; 283 ALR 1; [2011] HCA 49 at [36]. See also Malvaso at CLR 234–5; ALR 37.
[79]Our emphasis.
The joint reasons of Kiefel, Bell and Keane JJ emphasised that the twin hurdles identified by Heydon JA in Hernando that must be surmounted before the Court of Criminal Appeal proceeds to impose a heavier sentence on the respondent to a prosecution appeal accords with both authority and the statutory text. Though the wording of ss 289 or 290 of the CPA differs from that of s 5D of the Criminal Appeal Act 1912 (NSW), there is, in our opinion, nothing in the text that militates against the conclusion reached in CMB that the burden lies upon the Crown to show that the residual discretion should not be exercised. CMB reflects the long standing approach to Crown appeals in this State, that the Crown is expected to demonstrate why, as a matter of discretion, the court should not refuse to intervene.
With those principles in mind, we turn to a consideration of the merits.
Analysis
In our view, this appeal must be allowed. Notwithstanding the evident care and attention to detail that the judge’s reasons for sentence disclose, the sentence imposed was, with respect, outside the permissible range for this offender in respect of this offending. Indeed, and again with respect, in our view the sentence imposed is so inadequate as demonstrate that there has been an error in point of principle.
While the respondent’s submission that there is no principle that mandates a sentence of longer than 18 years’ imprisonment for a conviction for murder following a jury trial may be accepted, for the reasons already given the cases relied upon by the respondent in support of this submission are of no assistance. They throw no light upon the adequacy — or, perhaps, the inadequacy — of the subject sentence. The resolution of this appeal falls to be determined by the application of settled principles to the objective gravity of the respondent’s offending and a proper consideration of all of the circumstances pertaining to the respondent.
As the judge noted, this was a brutal murder that involved an amount of violence (in excess of 30 blows from a hammer to the victim’s face and head) that was a serious feature of the respondent’s crime. The murder was committed in the victim’s own home (where she was entitled to feel safe), and in the presence of the victim’s two year old son. The gravity of the respondent’s offending was aggravated by her conduct in removing and seeking to dispose of Ms Lin’s body.[80] Her subsequent conduct in reporting Ms Lin’s death and assisting the police to locate and recover her body, could not, in our view, be said to ‘substantially offset’ her earlier conduct.[81] This is particularly so having regard to the respondent’s version of what occurred in the lead-up to Ms Lin’s death.
[80]Reasons, [51].
[81]Ibid [52].
The issue of deportation and the consequences for the respondent were identified by the judge in a passage in his reasons that we have already set out above.[82] His Honour took a very favourable approach to the issue so far as the respondent was concerned. No complaint of specific error is made by the appellant in relation to the judge’s treatment of the issue of deportation. The judge’s conclusion, however, appears inconsistent with authority that deportation cannot be treated as a mitigatory factor if, as the trial judge found, it is ‘not feasible to sensibly quantify the level of the risk that [the respondent] may be deported’.[83] That said, since the sentencing of the respondent, the Migration Act 1958 (Cth) has been amended by the insertion of s 501(3A).[84] That section requires the relevant Minister to cancel a visa of the kind possessed by the respondent[85] if the visa holder is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory, or if the person has been sentenced to a term of imprisonment of 12 months or more.[86] Absent some further amendment to the Migration Act between now and the completion of the respondent’s sentence, the respondent can now expect, with some certainty, to be deported upon her release from custody. That prospect presently being capable of quantification, it is now a mitigatory factor which, as the judge had already found, would increase the burden of her sentence. Whether the approach explicated in the authorities of Guden and Peng[87] will continue to apply in the light of the amendment to the Migration Act which renders deportation certain in the case of certain offences, is not a matter we need to consider.
[82]Reasons [46]–[49].
[83]Cf Guden v The Queen (2010) 28 VR 288, 295 [28]–[30] (Maxwell P, Bongiorno JA and Beach AJA) (‘Guden’). See further, DPP(Cth) v Peng [2014] VSCA 128 [21]-[24] (Nettle and Redlich JJA, Priest JA agreeing) (‘Peng’).
[84]With effect from 11 December 2014.
[85]Contributory Parent visa (subclass 143).
[86]See s 501(3A)(a) and (b), s 501(6)(a) and s 501(7)(c) of the Migration Act 1958.
[87]See n 83, above.
The personal circumstances of the respondent that were required to be taken into account in mitigation of sentence were, as the judge noted, not insignificant. On the appeal counsel for the respondent submitted that the fact the respondent had grown up in circumstances of abject poverty in a rural part of China, that she was illiterate and had received no education, and was of borderline intelligence together were all matters in mitigation as they potentially bore upon her moral culpability. As was said in Marrah:[88]
Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.
[88]Marrah v The Queen [2014] VSCA 119, [16] (Redlich and Tate JJA).
The judge rightly identified these personal circumstances as mitigatory. His Honour also referred to the fact that despite the respondent’s difficult life she had devoted herself to her family and was a person of otherwise good character. But the need to give full weight to an offender’s deprived background[89] is not to say that an offender’s background and disadvantage has the same mitigatory relevance for all of the purposes of punishment. Though it may in part explain the offender’s conduct so that the offender’s moral culpability may be reduced, yet it will not diminish the need for the sentence to vindicate the dignity of a victim, reflect the community’s disapproval of the offending and call for a sentence that satisfies other punitive principles of punishment such as general deterrence.
[89]See Bugmy v The Queen (2013) 249 CLR 571, 589 [44].
Counsel for the respondent also pointed to the fact that she faced intractable cultural differences in the context of her disputation with her daughter in law. The judge said in his sentencing remarks that that the respondent’s outburst of violence which resulted in Ms Lin’s death was
the product of the complex dynamics of the difficult relationship which you had with her daughter in law based upon intractable cultural differences between them.[90]
[90]Reasons, [25].
The respondent’s cultural norms played a part in the instinctive synthesis. That said, the fact that she fell within a different cultural group would not justify resort to a different and otherwise inappropriate range of sentences.[91]
[91] HAT & Ors v The Queen (2011) 35 VR 109, [90].
As we have observed, this was a brutal murder. The respondent has not expressed contrition. Her offending was significantly aggravated by her treatment of the victim’s body. The fact that she later reported the death, and assisted police to locate and recover Ms Lin’s body, bore upon the degree to which the respondent’s conduct with respect to the victim’s body elevated the objective gravity of her offending. We are, with respect, unable to accept that it could be viewed as having ‘substantially offset’ that earlier conduct.[92]
[92]Reasons, [52].
Conclusion
Giving full effect to all of the mitigatory factors adverted to by the respondent which were emphasised by the sentencing judge in his sentencing remarks, we have concluded that the sentence imposed was of such manifest inadequacy as to constitute error of principle. Further, we are persuaded that the appellant’s contention that there is no reason why we should exercise the residual discretion, so
as to decline to intervene, must be accepted.[93]
[93]See generally, Green v The Queen (2011) 244 CLR 462, 465–6 [1]–[3], 477 [36], 479–80 [43] (French CJ, Crennan and Kiefel JJ); Munda v Western Australia (2013) 249 CLR 600, 622–624 [64]–[69] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ); and CMB v Attorney-General (NSW) (2015) 317 ALR 308, 316 [33] (French CJ and Gageler J) and 321–325 [53]–[69] (Kiefel, Bell and Keane JJ).
The appeal must be allowed, and the sentence imposed set aside. In lieu of the sentence first imposed, we would resentence the respondent to a term of imprisonment of 22 years, with a non-parole period of 17 years.
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