Lechmana v The Queen

[2019] NSWCCA 112

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Lechmana v R [2019] NSWCCA 112
Hearing dates:	11 March 2019
Date of orders:	16 August 2019
Decision date:	16 August 2019
Before:	Payne JA at [1] Bellew J at [15] Campbell J at [21]
Decision:	(1)   Time for bringing the application for leave to appeal is extended to 30 October 2018; (2)   Grant leave to appeal; (3)   Appeal dismissed.
Catchwords:	CRIMINAL LAW – Appeals – whether sentencing judge fell into Muldrock error – whether instinctive synthesis correctly undertaken – findings as to factual circumstances well founded – findings about failure of applicant to take responsibility well founded – findings about absence of contrition well founded – comparable cases not indicative of excessive sentence - lesser sentence not warranted.
Legislation Cited:	Crimes Act 1900 (NSW), s 23A Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A; 54B, Div 1A Pt 4 Criminal Appeal Act 1912 (NSW), s 6(3)
Cases Cited:	Abdulrahman v R [2016] NSWCCA 192 Aytugrul v R [2015] NSWCCA 139 Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 Davis v R [2015] NSWCCA 90 Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41 Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] Majid v R [2016] NSWCCA 289 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 R v Biles (No 2) [2017] NSWSC 525 R v DeBeyer [2017] NSWSC 1700 R v Do (No 4) [2015] NSWSC 512 R v Fesus (No 9) [2018] NSWSC 176 R v Haydar (No 4) [2017] NSWSC 615 R v Hejabian [2016] NSWSC 1692 R v Serutawke [2014] NSWSC 1762 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 Rajendran v R [2014] NSWCCA 113 Wang v R [2017] NSWCCA 61 Yun v R [2017] NSWCCA 317
Category:	Principal judgment
Parties:	Nanthagopal Nanthagopal Lechmana (Applicant) Regina (Respondent Crown)
Representation:	Counsel: Dr G.D. Woods QC with T.F. Woods (Applicant) Dr D. Kell with Ms E. Jones (Crown)   Solicitors: O'Brien Criminal & Civil Solicitors (Applicant) Officer of the Director of Public Prosecutions (Crown)
File Number(s):	2008/19511
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2010] NSWSC 849 Date of Decision: 09 July 2010 Before: Latham J File Number(s): 2008/19511

Judgment

1. PAYNE JA: I have read the judgment of Campbell J in draft. I gratefully adopt his Honour’s summary of the facts and relevant issues in the case, which I will not repeat. Whilst I agree with the orders proposed by his Honour, my reasons for joining in those orders differ.

2. Simpson J, as her Honour then was (Basten JA and Adamson J agreeing), said in Davis v R [2015] NSWCCA 90 at [33]:

“It is not lightly to be concluded that a sentencing judge during that period departed from the principles stated in Way. That is particularly so where the conviction is after trial (because Way held that standard non-parole periods did not apply to conviction following pleas of guilty, but stood as “a reference point, or benchmark, or sounding board, or guidepost” (at [122]). Even if the language of Way is not reproduced in the Remarks on Sentence, thus clearly identifying “Muldrock error” (probably more correctly called “Way error”), the strong likelihood is that the Way approach governed the sentencing. If that were not so, it would have to be concluded that the sentencing judge failed to apply the law as it was then understood and widely known. To contend otherwise, in respect of a sentence imposed for an offence to which a standard non-parole period applied between 2006 (Way) and 2011 (Muldrock) is to contend that the sentencing process miscarried and the sentencing judge failed to sentence in accordance with then established principle. As I have said above, such a conclusion is not to be lightly drawn.”

3. This passage in Davis has been followed many times in this Court: see for example Majid v R [2016] NSWCCA 289 at [47]-[49] per Davies J with whom Price J and I agreed. In Wang v R [2017] NSWCCA 61, R A Hulme (with whom Walton J and Beech-Jones J agreed) in referring to cases decided in the period between Way and Muldrock said that:

“[16] … Both the statistics and the cases derived from the post-R v Way and pre-Muldrock v The Queen era. As Simpson J (as she then was) observed in R v Davis, it may be presumed that most, if not all of them, were influenced by the erroneous R v Way principles.”

4. This was a case where there was a trial. Her Honour was required at the time of imposing sentence in 2010 to address the issues in the way prescribed by Way and in the order prescribed by that case. Whilst I accept that there is no per se presumption that cases decided in the period between Way and Muldrock were necessarily decided in a way consistent with governing authority from this Court (being a Court comprising Spigelman CJ, Wood CJ at CL and Simpson J) and inconsistent with how the High Court reasoned in 2011 in Muldrock, I would not lightly draw such a conclusion.

5. On the issue raised by the sole ground of appeal, I am unable to agree that the trial judge sentenced the applicant on a basis that would have been, in 2010, fundamentally inconsistent with what her Honour was required to do by the then governing authority in Way. It is apparent from a reading of the Remarks on Sentence that when dealing with the standard non-parole period and providing reasons why it would not be imposed, the trial judge engaged in a two-stage sentencing process contrary to Muldrock. To pose the question of what the outcome may have been if those remarks had appeared later in the Remarks on Sentence is not to the point. Her Honour was required by Way to address the issues in the order she did.

6. I am satisfied that error has been established and that this Court must consider whether to resentence the applicant. In conducting that re-sentencing I take into account the legislative guideposts of the maximum penalty and the standard non-parole period.

7. The trial judge found, and in the absence of challenge by the Crown or the applicant to those findings I see no reason to depart from those findings, that:

1. The applicant’s wife weighed about 50 kilograms and was 159 cm tall;

2. The applicant had earlier choked his wife in a violent assault and had later threatened to knife her;

3. The applicant violently assaulted his wife on the night of 25 February 2008 with the intention of killing her. The applicant punched his wife in the face causing a fracture of the nasal bone and bleeding. He pulled her violently by the hair to stop her escaping such that tufts of her hair were later found near her body. The applicant violently choked his wife having pinned her to the bed, rendering her unconscious after 15 to 30 seconds, causing a fracture of the superior horns of the thyroid cartilage in her neck and leading to her death after approximately four minutes;

4. The objective gravity of the applicant’s offending was marginally below the mid-range;

5. The offence was not premeditated although the applicant’s assertion that his wife did not appreciate the sacrifices he made for her and had “drifted from the boundaries of the marriage” were not supported by evidence. The applicant violently assaulted his wife with the intention of killing her because he was angry and frustrated and could not accept that his wife was “beyond his authority”;

6. The applicant demonstrated a complete absence of remorse;

7. The applicant was depressed but was not taking his medication. The applicant’s depression was not so serious or pervasive that it diminished his moral culpability for murder to a significant extent;

8. The subjective circumstances warranting consideration in the applicant’s favour were his difficult family upbringing, his alcoholic stepfather and the glowing personal references which indicated that the brutal murder of his wife was out of character;

9. The applicant’s prospects or rehabilitation were sound; and

10. The fact that the applicant faced imprisonment for the first time and required treatment for his depression did not warrant a finding of special circumstances.

8. I also take into account the material tendered for the purposes of resentencing. Although the details are scanty, I find that between 2012 and 2017 the applicant, who is now 48, was held in Special Management Area Protection, apparently at his own request. He is also entitled to credit for participating in employment and education activities whilst in gaol. I also note the misconduct findings made in 2011 and 2012. The applicant appears to be compliant with his treatment regime of medication and I have no reason to doubt his evidence that “currently, my mental health is good”.

9. The appellant also relied upon a number of what were said to be comparative cases. I did not find them of assistance. Each is readily distinguishable:

1. In R v Fesus (No 9) [2018] NSWSC 176, the murder was committed in 1997. An important feature of the sentence, absent here, was that the offender was sentenced in accordance with the sentencing patterns at the time;

2. In R v Haydar (No 4) [2017] NSWSC 615, unlike the present case, the psychiatric condition of the offender was an important factor lowering the offender’s moral culpability for the offence;

3. In R v Hejabian [2016] NSWSC 1692, the medical evidence established that the offender had subsequently contracted a condition known as Rhabdomyolysis which causes kidney failure. The offender was left with enduring problems with mobility, requiring the use of a wheelchair. Unlike the present case, the offender’s mental illness also significantly reduced his moral culpability for his actions;

4. R v Do (No 4) [2015] NSWSC 512 is a quite different case to the present. The offender had sustained brain damage from his time as a prisoner of war during the Vietnam War. The sentencing judge found the offender would be near his 80th birthday on release, would still have limited English skills and would be released into a community which was in many respects largely foreign to him; and

5. In R v Serutawake [2014] NSWSC 1762, the subjective circumstances found were quite different to the present case. Matthews AJ at [23] said:

“Given the various mitigating circumstances I have mentioned, together with the fact that the offence itself falls below the mid-range of offences for murder, it is, in my view, appropriate to impose a non-parole period which is significantly below the standard period.”

10. This is a more serious case and warrants a higher sentence.

11. In any event, it is the consistent application of relevant legal principles, not numerical equivalence of sentences, which is critical in sentencing: Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40]-[41]. Other cases may establish a range of sentences which have been imposed in the past, but do not establish that the range or its upper or lower limits are correct, nor do such sentences establish “the outer bounds of the permissible discretion”. Such a history provides a yardstick against which a proposed sentence may be examined, but what is important are the unifying principles which those sentences reveal and reflect: Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [53]-[54].

12. Based on the findings I have made, and taking all of the matters favourable to the applicant I have described into account, I would nevertheless have imposed a longer sentence and non-parole period upon the applicant.

13. In Abdulrahman v R [2016] NSWCCA 192 Bathurst CJ said at [3]-[4]:

“[3] It seems to me that what is required by Kentwell v The Queen [2014] HCA 37; 252 CLR 601 is that once error on the part of the sentencing judge has been established, it is necessary to re-exercise the sentencing discretion to determine whether a lesser sentence is warranted in law. The Court, however, made it clear it was not necessary to resentence the applicant if it determined that no lesser sentence was warranted, although if it determined to resentence in those circumstances, it should inform the applicant so that he or she had an opportunity to withdraw the appeal: see also Neal v The Queen [1982] HCA 55; 149 CLR 305 at 308; Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 290.

[4] In these circumstances, if on such a re-exercise the Court is of the view that no lesser sentence is warranted but determines not to resentence, then in my view it is sufficient to simply state this rather than indicating the hypothetical sentence which would have been imposed as a result of the re-exercise of the sentencing discretion.”

14. As I would have imposed a higher sentence than the sentencing judge, I simply record that matter and will not indicate the hypothetical sentence I would have imposed.

15. For the foregoing reasons I agree with the orders proposed by Campbell J.

16. BELLEW J: I have had the advantage of reading in draft the judgments of Payne JA and Campbell J. The factual background to the offending, and the applicable legal principles, are set out at length in their Honours’ respective judgments.

17. I am mindful of the necessity to read the reasons of the sentencing judge as a whole. However in my view, the passage of those reasons set out by Campbell J at [37] reflects her Honour having engaged in a two-tiered approach to sentence which afforded primacy to the standard non-parole period. In light of the decision in Muldrock such an approach reflects error. That necessitates the fresh exercise of the sentencing discretion.

18. I have considered the circumstances of the offending, and the applicant’s subjective case, all aspects of which are set out in the judgments of Payne JA and Campbell J. In the fresh exercise of the sentencing discretion, I have come to the view that the sentence imposed is appropriate. As Campbell J has pointed out, the offending involved a violent and unprovoked attack by the applicant upon his wife which was accompanied by an intention to kill, and which involved the continual application of force over several minutes. Significantly, the attack occurred in the victim’s own home, an environment in which she was entitled to feel safe and secure.

19. The applicant displayed no remorse or contrition for his actions. Whilst the applicant’s mental illness is obviously a relevant factor, there is no warrant to depart from the finding of the sentencing judge that the conduct of the applicant was not the act of a man so deep in the grip of depression that he was unable to control his actions, but rather the act of a man who could see that his wife no longer loved him, that she was beyond his authority as her husband, that she had determined to separate from him, and that there was nothing he could do to prevent that from occurring.

20. I agree with the orders proposed by Campbell J.

21. CAMPBELL J:   By Notice of Appeal filed on 30 October 2018, the applicant seeks leave to appeal from the sentence passed upon him in the Supreme Court by Latham J on 9 July 2010 following his conviction for the murder of his wife.

22. It goes without saying that the application for leave to appeal to this Court was filed well out of time. It was accompanied by a Notice of Application for Extension of Time which explained in detail the reasons for the long delay. In the event the Crown did not oppose an extension being granted (Crown Submissions ([5]; 2.5 - .10T) and an order extending time to 30 October 2018 was pronounced orally in court at the commencement of the hearing. That order will be formalised as one of the orders the Court will make by way of disposition of the matter regardless of the outcome of the leave application and appeal otherwise.

Introduction

23. When arraigned in this Court for the murder of his wife, Pharzana Nanthagopal, the applicant pleaded not guilty of murder, but guilty of manslaughter. It was made clear that the basis of his plea was the invocation of the partial defence of substantial impairment by abnormality of the mind created by s 23A Crimes Act 1900 (NSW).

24. After the trial before Latham J and a jury, he was found guilty of the murder of his wife by verdict of the jury.

25. After proceedings on sentence, her Honour sentenced the applicant to a term of imprisonment, having a non-parole period of 17 years and 3 months commencing on 25 February 2008 and expiring on 24 May 2025 with a balance of term of 5 years and 9 months expiring on 24 February 2031. The applicant is first eligible for release on parole on 25 May 2025.

Grounds of appeal

26. The applicant seeks leave to appeal on a single ground of appeal in the following terms:

The learned sentencing judge erred in sentencing the applicant contrary to the principles set out in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.

27. Murder is a standard non-parole period offence for the purpose of Division 1A of Part 4 of Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). By virtue of ss 54A and 54B Sentencing Act the murder of Ms Nanthagopal, carried a standard non-parole period of 20 years imprisonment.

28. When the applicant was sentenced by Latham J on 9 July 2010, the legal requirements to observe in complying with Division 1A of Part 4 Sentencing Act were understood by reference to the decision of this Court in R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 (Spigelman CJ, Wood CJ at CL and Simpson J) at [117] – [121]. The guidance given by this Court in Way was understood by sentencing judges as mandating a two-tiered approach to sentencing for standard non-parole period offences. This was different from the general approach to sentencing mandated by the decision of the High Court of Australia in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (especially at [51], McHugh J) and generally referred to as “instinctive synthesis”.

29. In Muldrock a seven–justice Bench of the High Court of Australia unanimously decided that Way was wrongly decided (Muldrock [25]). Their Honours affirmed that for all sentences, including sentences for standard non-parole period offences under Division 1A of Part 4 Sentencing Act the instinctive synthesis approach described in Markarian applies. In Markarian McHugh J had said (at [51]):

The judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. (Emphasis added in Muldrock)

30. The overruling of Way launched a large number of appeals by offenders who had been sentenced during the period that Way held sway. In lawyers’ shorthand, these appeals invoked “Muldrock error” rather than “Way error”; Muldrock error being short for the error identified in Muldrock.

Legal developments subsequent to Muldrock

31. The two-tiered approach in Way which the High Court overruled in Muldrock was the requirement for a sentencing judge to ask, in the first instance, whether there are reasons for not imposing the standard non-parole period: s 54B(2). This question was to be answered by considering the matters set out in Way at [118]. Only if that question was answered in the affirmative, the sentencing judge then was required to exercise the sentencing discretion in accordance with the previously established practice i.e. instinctive synthesis.

32. There developed an approach for the evaluation of appeals invoking “Muldrock error” that more or less proceeded on the assumption, “not lightly” to be departed from, that after Way and before Muldrock, judges sentenced offenders guilty of standard non-parole period offences in accordance with Way. This assumption was of some practical importance in the statutory context governing sentence appeals: s 6(3) Criminal Appeal Act 1912 (NSW). For a judge sentencing in accordance with the tiered approach mandated by Way was acting upon a wrong principle. Acting upon a wrong principle constitutes appellable error in accordance with the well-known principles established by House v The King (1936) 55 CLR 499 at 504 – 505. And an error of this nature requires this Court re-exercise the sentencing discretion afresh. In Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] French CJ, Hayne, Bell and Keane JJ said:

When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be “warranted in law”. A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not “warranted in law” unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence.

Arguments of counsel

33. Dr GD Woods QC and Mr TF Woods, who appeared for the applicant, relied upon the apparent inexorable logic of this position to argue that the sentence imposed at first instance was necessarily affected by error of principle and it was necessary for the court to re-exercise the sentencing discretion in accordance with Kentwell. It was submitted that when this was done the Court would conclude that a lesser sentence was warranted in law, quash the sentence below and pass the lesser sentence.

34. Dr Woods did acknowledge that this may be subject to the decision in Yun v R [2017] NSWCCA 317 where Latham and Bellew JJ (Campbell J agreeing) said (at [22] – [25]):

The effect of the High Court’s judgment in Muldrock is that the correct approach to sentencing an offender for an offence to which a standard non-parole period applies is that outlined by McHugh J in Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [51], namely an approach which reflects a process of instinctive synthesis, by which the sentencing court:

(a) identifies the entirety of the factors relevant to sentence;

(b) discusses their significance;

(c) makes a value judgment as to the appropriate sentence given all of those factors; and

(d) determines the sentence.

In submitting that this Court had wrongly applied the decision in Way when sentencing the appellant, counsel relied upon the observations of Simpson JA (Beazley P and Adamson J agreed) in Aytugrul v R[2015] NSWCCA 139 at [21] where her Honour said:

If judges during that period sentenced in accordance with the law as it was then understood and stated in Way, then, axiomatically, by reason of Muldrock, they were in error.

In the earlier decision of Davis v R[2015] NSWCCA 90 her Honour had observed (at [33]):

It is not lightly to be concluded that a sentencing judge during that period departed from the principles stated in Way. … To contend otherwise, in respect of a sentence imposed for an offence to which a standard non-parole period applied between 2006 (Way) and 2011 (Muldrock) is to contend that the sentencing process miscarried and the sentencing judge failed to sentence in accordance with then established principle. As I have said above, such a conclusion is not to be lightly drawn.

The obvious force of her Honour’s observations must be recognised. However, whether a conclusion can be drawn that a sentencing judge did not sentence an offender according to the decision in Way must necessarily be determined by a careful examination of the reasons given at the time. In our view, when the reasons of this Court in sentencing the appellant are examined, such a conclusion can be drawn.

35. Dr Woods argued that “a careful examination” of Latham J’s reasons at first instance in this case would lead to the conclusion that Muldrock error had occurred.

36. Dr D Kell and Ms E Jones for the Crown referred to Rajendran v R [2014] NSWCCA 113 at [34] where Bellew J (Gleeson JA agreeing; Hamill J agreeing on this point) said:

… it is necessary to review the reasons for sentence as a whole and not confine examination to one particular passage or sentence which is said to reflect error … What must be ascertained in each case is whether a reliance on Way has sufficiently infected a sentence with such error so as to enliven the court's discretion to intervene.

The Crown argued that considering Latham J’s judgment as a whole, and reading her Honour’s reasons fairly, the Court would conclude that Muldrock error has not been established.

Has error been established?

37. It is necessary to turn to the question whether Muldrock error has been established. In this regard emphasis was laid upon [22] of Latham J’s reasons:

For all of the above reasons, I assess the objective gravity of the offence as falling marginally below the mid-range. It follows that the standard non-parole period does not apply but it remains relevant to the sentence to be imposed. In any event, I would decline to apply it in circumstances where the offender is of prior good character and where the offence was committed in the context of his depressive illness.

38. Viewed in isolation one can understand the argument that this paragraph may be understood as answering the question posed at [117] of Way: “Are there reasons for not imposing the standard non-parole period?” But it must also be borne in mind that Way (at [118]) also purported to prescribe how that question was to be answered. The Court said:

That question will be answered by considering:

(a) the objective seriousness of the offence, considered in the light of facts which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid-range of seriousness for an offence of the relevant kind;

(b) the circumstances of aggravation and of mitigation, which are present in the subject case, or which apply to the particular offender as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1).

The references are to sections of the Sentencing Act. It is unnecessary to set them out for present purposes. The tiered approach comes from posing and answering the question in the way that the Court directed in Way and if answered favourably to the offender, proceeding only then to apply the instinctive synthesis to the case at hand.

39. If one considers Latham J’s judgment in the light of those matters, one immediately becomes conscious of the consideration that her Honour’s approach to her task was broader than that specified in [117] – [118] of Way. To demonstrate this it is necessary to follow the path of her Honour’s reasoning at least in summary form.

40. I interpolate to repeat, the principal issue at the trial was whether the applicant had made good on the balance of probabilities the partial defence of substantial impairment by abnormality of the mind based upon the applicant’s depressive psychiatric illness. Her Honour was satisfied to the requisite standard that the applicant’s depression was not considered so substantial that it warranted reduction of the verdict from murder to manslaughter (ROS [1]).

The circumstances of the offending

41. It was not in dispute at the trial that the applicant had killed his wife by manual strangulation. The killing had occurred in the bedroom they shared in their home. It occurred against the background of a previous incident of choking from which the applicant desisted before any serious harm ensued. After that incident he approached Ms Nanthagopal holding an orange and a knife saying “How would you feel if I put this knife into your stomach? Do you want me to do that?”

42. The applicant and Ms Nanthagopal met in 1997 while the applicant was on holiday in Australia. They married in 2002 when the applicant emigrated from Malaysia to Australia. The killing occurred on 25 February 2008, by which time the applicant and his wife had a 5 year old daughter.

43. For the purpose of sentencing, Latham J found that the applicant had not settled well in Australia and while he had no trouble finding work (he was a university graduate in Malaysia) he had some difficulty maintaining it. He was also overly self-conscious and worried about what workmates thought of him.

44. The course of the marriage was not smooth. The applicant struggled with his wife’s sense of independence particularly her friendships with other men. He convinced himself that she was having an affair with a male work colleague. Ms Nanthagopal and the male colleague were friendly but there was no evidence of any affair, let alone an affair involving a sexual relationship. His wife, her family, the male colleague and the receptionist at her place of work all sought to re-assure the applicant that there was no affair. But as her Honour put it, the applicant “remained unshaken in his belief that his wife was being unfaithful to him” (ROS [7]).

45. The applicant was on antidepressants in 2007, but he was not compliant, notwithstanding his wife’s encouragement. His wife had also enlisted the assistance of his mother to support him to take his medication (ROS [6]).

46. Ms Nanthagopal declined to report the October 2007 incident to the police. Rather she encouraged the offender to attend counselling with her at a well-known marriage counselling organisation (ROS [6]).

47. Her Honour observed that the duration and severity of the applicant’s assault upon Ms Nanthagopal was the subject of considerable evidence at the trial. This evidence included forensic evidence, photographic evidence and the expert evidence of Dr Langlois, forensic pathologist. There was also lay evidence from a neighbour who heard three or four loud bangs and a murmuring noise emanating from the home the applicant shared with his wife.

48. On the basis of this body of evidence, her Honour made the following findings [19] – [20]:

I have concluded that the offender commenced his assault upon the victim in the bedroom by striking her to the face, causing the fracture to the nose and bleeding, thus resulting in the dispersion of blood drops around the room. Either before, during or after striking her, he pulled her by the hair to prevent her escape. After striking her, the offender applied consistent pressure to the victim’s neck, whilst she fought to remove his hands. The position of the victim, clothed, on top of the bed when her parents arrived is consistent with strangulation occurring after the offender had pinned her there. I reject the proposition, advanced during [counsel’s] address, that the offender and the victim were engaged in sexual activity, that they argued and that the argument and/or the compression of the victim’s neck resulted in the victim somehow falling to the floor, thus sustaining the injuries to the nose and the other abrasions noted by Dr Langlois. That scenario does not take account of the number of loud bangs heard by the neighbour, nor is it consistent with the tufts of the victim’s hair lying about the room.

However long the offender maintained pressure on the victim’s neck, it was obvious to him that she was in mortal danger if he did not loosen his grip, yet he persisted. He understood the consequences of his conduct, because he had previously attempted to choke her and he had, in effect, threatened to kill her. The victim was of very slight build. All of these factors support the conclusion that the offender assaulted the victim on 25 February 2008 with the intention of killing her.

49. There is no challenge to any of her Honour’s findings of fact relevant to sentencing (7.15-20T). In my own view, her Honour’s findings about the factual circumstances of the offending were well justified by the evidence she recorded. The evidence included photographs depicting clumps of Ms Nanthagopal’s hair and stains of her blood on the floor of the bedroom where she was discovered by her parents after her death. The forensic pathologist, Dr Langlois, provided evidence that the cause of death was compression of the neck due to manual strangulation involving a fracture to both of the greater horns of the voice box. But there was also bruising to the right side of the jaw and minor injuries to the left angle of the jaw, blunt trauma of the head with bruising and a fracture of Ms Nanthagopal’s nose and general bruising associated with it.

50. Dr Langlois said that substantial or significant compression involving about 5 kilograms of pressure was necessary to fracture the superior horns of the thyroid cartilage. This was described as a moderate degree of force. This pressure was enough to stem the flow of blood to the brain causing unconsciousness within 15 to 20 seconds and death after 4 minutes. From the nature of the injuries, the photographs of the scene and evidence of defensive wounds, as it were, on Ms Nanthagopal’s neck and fingers, there had obviously been a struggle during which the applicant had inflicted blows upon Ms Nanthagopal and while she was conscious she had attempted to relieve the pressure on her neck by pulling at the applicant’s hands. In my judgment these findings of fact which are not disputed, fully justify her Honour’s finding beyond reasonable doubt (at ROS [3] and [20]) that the applicant had assaulted his wife on the night of 25 February 2008 with the intention of killing her. Her Honour was satisfied, however, that the offence was not premeditated (ROS [3]), but was the spontaneous expression of the applicant’s frustration and anger at what he perceived to be the prospect of losing his wife and child (ROS [2]).

51. Before reaching the conclusion expressed (at ROS [22]) her Honour also considered matters which may be properly regarded as referable to the personal characteristics of the offender. These extended beyond the matters I have already referred to in relation to his failure to settle in Australia and his jealousy of his wife. As I have said, the applicant was being treated for depression. Her Honour observed (ROS [8]):

It is difficult to determine whether the offender’s mistaken view of his wife’s fidelity was a product of his depression or whether it was simply an expression of a possessive nature. The difficulty arises because of the offender’s post-conviction accounts of his wife’s behaviour towards him in the marriage that have been provided to a number of professionals responsible for the preparation of reports for the purposes of sentence.

These professionals included a probation and parole officer and Dr Nielssen, forensic psychiatrist, who was qualified to provide a report for the purpose of sentencing. The applicant also wrote a letter to the Court apologising to those who have been “affected by this accident” (ROS [10]).

52. It was quite clear from this material that the applicant did not accept responsibility for the murder of his wife. To the probation and parole officer he asserted, contrary to her Honour’s findings, that Nanthagopal had admitted to an affair which had progressed to a sexual relationship sometime in January 2008. He asserted his wife had been obsessive and controlling. He said that his wife did not reciprocate the sacrifices he had made for her and that she had “drifted from the boundaries of the marriage” (ROS [10]). Her Honour found that the statements were against the weight of the evidence at the trial and completely contradicted observations made by family members and friends (ROS [11]).

53. Her Honour did not regard the applicant’s false assertion as a manifestation of his depression (ROS [12]). In his report dated 26 February 2010, Dr Nielssen expressed the opinion that the applicant was not “especially depressed and [was receiving adequate treatment for depression]”, notwithstanding an initial cessation in medication because the applicant was hording tablets in apparent preparation for a suicide attempt.

54. Her Honour found at [13]:

In my view, the offender’s conscious and deliberate misrepresentation of his marriage since his conviction demonstrates a willingness to go to considerable lengths to avoid responsibility for his offence. It does not augur well for his prospects of rehabilitation. More importantly, it tends to undermine the proposition that his depression was at the root of his violent outburst towards his wife. If that were so, one would expect an improvement in his mental health to lead to an acceptance on his part that his view of the marriage and of his wife’s behaviour was the product of a distortion in his thinking, brought about by his illness. Yet, that is far from the case.

55. Her Honour also referred to post-offending conduct by the applicant involving the consumption of a large quantity of whiskey and sleeping tablets. Her Honour found that that was equally consistent with the realisation that he was facing arrest and imprisonment and bringing dishonour upon members of his own family (ROS [14]).

56. At [15] her Honour made findings in relation to the applicant’s moral culpability in the following terms:

For these reasons, I incline to the view that the offender’s depression had some, albeit limited, bearing on the commission of the offence, in that it exacerbated the traits of a pre-existing rigid and possessive personality. It cannot be doubted that the offender suffered from depression and that there was a history of depressive illness in his family, but in many respects the offender was the author of his own misfortune, in that he was reluctant to obtain treatment, did not follow up on appointments and did not consistently take prescribed medication. There is an absence of reliable evidence supporting a diagnosis of Attention Deficit Hyperactivity Disorder. The offender’s depression was not so serious or pervasive that it diminishes his moral culpability for murder to a significant extent.

57. All of this analysis of the evidence and statement of her Honour’s reasons preceded the finding at (ROS [22]) which is impugned as betraying Muldrock error. It’s true enough that matters relating to the applicant’s family background, schooling, education and references from the community were dealt with after the finding at (ROS [22]) was made. I interpolate that on the basis of those factors, and those factors alone, her Honour found that prospects of rehabilitation “are sound”, but “the complete absence of remorse … is a matter of some concern”. Her Honour declined to find special circumstances on the basis that the applicant was imprisoned for the first time and required treatment for his depression. On the evidence, her Honour was satisfied that the treatment being afforded him in custody was “more than adequate” (ROS [30]). His mental condition had been taken into account to some extent in her Honour’s general assessment and she was concerned about the prospect of double counting.

58. I accept that her Honour dealt with the purely subjective factors relating antecedent circumstances of life after she had made her finding about objective seriousness, but I am not persuaded that that matter alone suggests that her Honour adopted a two-tiered approach to the sentencing task. Had ROS [22] appeared after ROS [31] and before the pronouncement of the sentence at ROS [32], no complaint could possibly have been mounted about the structure, content and substance of her Honour’s reasons. Muldrock error is not established through the demonstration of accidents or infelicities of composition or compilation of the reasons. Muldrock error may be seen to consist of giving primary or determinative significance to the standard non-parole period. But it remains then and now that a sentencing court is required to apply the provisions of Division 1A of Part 4 Sentencing Act when sentencing for an offence to which they apply. How they are to be applied is discussed in Muldrock at [27] – [31]. Principally, these provisions “require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”. And this approach is to be followed, amongst other things, whether the offence might be characterised as falling in the low, middle or high range of objective seriousness for such offences (Muldrock at [29]), always bearing in mind that the maximum penalty and the standard non-parole period provide legislative guideposts for the performance of the task.

57. In my judgment, carefully considering Latham J’s reasons as a whole and reading them in a fair way, I am not persuaded that her Honour gave primary or determinative significance to the standard non-parole period. In my judgment her Honour’s approach “reflects an application of the process of intuitive synthesis … in which [her Honour] arrived at a sentence by taking into account the objective seriousness of the offending and [the applicant’s] subjective circumstances”: Yun [27]. As I have said, had her Honour structured her reasons such that (ROS [22]) became the penultimate paragraph there could have been no possible complaint levelled of Muldrock error.

Re-sentencing

60. Error not having been made out, it is unnecessary to re-exercise the sentencing discretion. Were I wrong in my assessment that the applicant has not established error of principle, on the basis of the facts as found by Latham J and exercising my own discretion, I would conclude that no lesser sentence is warranted in law.

61. This was a violent, unprovoked attack by the applicant on his wife, whom he was bound to protect, in her own home, not having the slightest justification other than his own unfounded jealousy.

62. The attack may have been spontaneous and unpremeditated but it was accompanied by an intention to kill. Even accepting, as Latham J found, that Ms Nanthagapol was a slight person, manual strangulation of a fellow human being is no easier matter. Moderate force may be sufficient to cause the victim’s death. But, causing that death requires continuous application of that force for at least four minutes. This is not a short time in a charged environment where the victim is struggling to save her own life. Fulfilling the intention to kill requires determined persistence, especially in these circumstances. Adjudging objective seriousness solely by reference to the nature of the offending, I would have assessed it as more serious than her Honour did on the facts as she found them to be.

63. I accept that the applicant’s moral culpability was reduced somewhat by the findings Latham J made about the applicant’s mental illness, but her Honour who had the benefit of hearing and seeing all of the witnesses give evidence at the trial firsthand also found (at ROS [2]), as I have said before:

The offender’s violence towards his wife on the night she died was not the act of a man so deep in the grip of a depression that he was unable to control himself. It was the act of a man who could see that his wife no longer loved him, that she was beyond his authority as her husband, that she had determined to separate from him, taking their child with her, and there was nothing he could do to prevent it.

64. The findings her Honour made about the failure of the applicant to take responsibility for his offending and the absence of any remorse or contrition were well justified. His background may suggest that he had prospects of rehabilitation but this must be balanced against the finding her Honour made (at ROS [13]) that “the offender’s conscious and deliberate misrepresentation of his marriage since his conviction demonstrates willingness to go to considerable lengths to avoid responsibility for his offence”.

65. The violence he was subjected to at the hands as his step-father as a child (ROS ([25]) is a factor which may also serve to attenuate his moral culpability to some extent. His prior good character too is a mitigatory factor but in the context of this most severe domestic violence, its usual relevance is diminished, particularly having regard to the previous incident of choking.

66. I have borne in mind the affidavit sworn on 6 February 2019, read at the hearing on the usual basis. I accept (at least since 2012) the applicant has been fully compliant with prison discipline and has participated well and willingly in such employment as has been made available to him. He continues to receive treatment for his mental health issues and is compliant with the prescribed regime of medication. He has undertaken such educational and rehabilitative courses as have been made available to him. A number of certificates of attainment are attached but it must be observed most of these are from his early years in custody, although he is currently working towards a Certificate III in hospitality. He is enrolled in a MBA course which as at the hearing was currently deferred. From this material, I am prepared to infer that the applicant is making good progress towards rehabilitation. Some of that progress may have been impeded by the consideration that at his own request, because he is fearful of conditions in prison, he has been in protective custody.

67. The Court was provided with a number of comparative sentences for murder in the context of a domestic relationship involving an intention to kill. They are: R v Fesus (No 9) [2018] NSWSC 176; R v Haydar(No 4) [2017] NSWSC 615; R v Hejabian [2016] NSWSC 1692; R v Do (No 4) [2015] NSWSC 512; and R v Serutawke [2014] NSWSC 1762. Each of these sentences involved a non-parole period between 15 years and 9 months and 16 years and 6 months and a total sentence between 21 years and 23 years. It was argued that employing these comparators as a yardstick, the sentence passed by her Honour on the applicant, having a non-parole period of 17 years and 3 months and a total term of 23 years, was excessive. I understand the submission to be that the sentence in the case at hand is demonstrative of Muldrock error by reference to the other matters decided since Way was overruled.

68. As Gageler and Gordon JJ observed in Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41 at [83]:

Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.

With respect, this dictum is apposite to the present case. That the sentence passed is somewhat longer than the comparable cases provided does not establish either that the sentence is excessive, or that it is infected by Muldrock error.

69. It is important also to bear in mind, as the Crown submits, that each of the cases proffered is different from the case at hand at the factual level. No inconsistency of principle calling the sentence in the present case into question is demonstrated by a consideration of the different outcomes in these five cases. As the Crown further argued, five cases do not provide a complete picture of sentencing practices. Other examples where sterner sentences have been imposed can be proffered: R v DeBeyer [2017] NSWSC 1700; and R v Biles (No 2) [2017] NSWSC 525.

70. Having sought to exercise the sentencing discretion afresh, albeit on a contingent basis, I am satisfied that the sentence passed by Latham J is an appropriate sentence for the offender and the offence. I am not satisfied that a lesser sentence is warranted in law.

71. The orders I propose are:

1. Time for bringing the application for leave to appeal is extended to 30 October 2018;

2. Grant leave to appeal;

3. Appeal dismissed.

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Amendments

26 August 2019 - Text cited removed

10 September 2019 - Applicant's solicitors amended

Decision last updated: 10 September 2019