Li v The Queen - [2000] WASCA 340

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: LI -v- THE QUEEN [2000] WASCA 340

CORAM: KENNEDY ACJ
WALLWORK J
ANDERSON J

HEARD: 14 JULY 2000

DELIVERED : 8 NOVEMBER 2000

FILE NO/S: CCA 198 of 1997
CCA 274 of 1999

BETWEEN: LI CHUN SHEUNG
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Abandonment of application for leave to appeal against sentence - Notice of abandonment a nullity

Criminal law and procedure - Sentencing - Two counts of attempted murder - Sentence of 10 years' imprisonment on each count, to be served concurrently, with eligibility for parole - Whether new evidence throws light on circumstances existing at time of sentence - Prisoner developing schizophrenia and suffering from language and cultural barriers and lack of social support

Legislation:

Nil

Result:

Notice of abandonment of application for leave to appeal against sentence declared a nullity
Leave to appeal granted
Appeal allowed
Sentences reduced to 8 years and 6 months

Representation:

Counsel:

Applicant: Mr R W Cannon
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Su & Co
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bridges v The Queen (1998) 20 WAR 59
R v Anderson (1997) 92 A Crim R 348
R v Babic (1997) 93 A Crim R 254
R v Bailey (1988) 35 A Crim R 458
R v Eliasen (1991) 53 A Crim R 391
R v La Rosa (1999) 105 A Crim R 362
R v Medway [1976] QB 779
R v Morgan (1996) 87 A Crim R 104
R v Rostom [1996] 2 VR 97
R v WEF [1998] 2 VR 385
Smith v R (1987) 44 SASR 587

Case(s) also cited:

Bailey v DPP (NSW) (1988) 35 A Crim R 458
Paparone v The Queen [2000] WASCA 127
R v Attard (1999) 105 A Crim R 431
R v Bekink (1999) 107 A Crim R 415
R v DVG (1999) 109 A Crim R 145
R v Sheean (1999) 106 A Crim R 38
R v Vasich (1998) 99 A Crim R 262
R v Zehir (1996) 104 A Crim R 109

KENNEDY ACJ: On 14 August 1997, the applicant pleaded guilty in the Supreme Court to two counts of attempted murder. In respect of each offence he was subsequently sentenced to 10 years' imprisonment, those sentences being directed to be served concurrently. Having regard to the period which the applicant had spent in custody up to the time of his sentencing, those sentences were backdated to 22 October 1996. The learned sentencing Judge ordered that the applicant be eligible for parole in respect of each sentence.
The applicant is of Chinese descent and was a resident of Hong Kong. His former wife is also of Chinese descent and before their marriage she lived with her parents in Perth. The applicant met his former wife in Hong Kong, where they were later married. In January 1996, the applicant came to Perth on a tourist visa for a period of one year. The victims of the two offences were the applicant's former parents-in-law. The applicant has since been divorced.
The applicant claimed that he had gone to the victims' house armed with a long knife because he had been told by his then wife that her father had sexually interfered with her when she was younger. His Honour was not able to make any finding of fact as to whether or not the allegation was true, but he was satisfied that the applicant honestly believed that it was true, and that this was the motive for his going to the house.
The applicant entered the house, without the knowledge of the occupants, through a closed but unlocked downstairs door. He waited for his father-in-law to appear. His father-in-law indicated that he first knew of the applicant's presence when he felt an arm go around his chest and under his armpit. The applicant stabbed his father-in-law with a knife and a struggle ensued. The applicant's mother-in-law then came into the room where the attack had taken place and she went to her husband's aid. The applicant grasped her jumper and prevented her from leaving. He stabbed her in the back four times. Shortly afterwards a neighbour arrived and took possession of the knife which had been used in the attacks.
His Honour accepted for the purposes of sentencing that, initially, the applicant had only intended to frighten his parents-in-law. However, when the confrontation took place, as his plea of guilty established, the applicant formed the intention of killing both of them.
Amongst the materials before the learned sentencing Judge were a report dated 30 November 1996 by Mr R L Smith, a clinical psychologist, and a report dated 7 August 1997 by Dr A Groves, a consultant psychiatrist.
Mr Smith's conclusions were as follows:
"In my opinion Mr Li has developed a paranoid personality disorder (not classed as a mental illness) in reaction to his belief that his wife-to-be has been abused by her father. He has felt frustrated in seeking to confront and work through issues with his father-in-law and has become increasingly agitated and concerned that when he returns to Hong Kong [in order to secure a visa], abuse that he believes has taken place might recommence. This has motivated him to do what he did. He claims that he did not intend to harm, only to warn off Mr Lam [his father-in-law] but matters got out of control.
In the absence of normative test data and direct conversation with Mr Li [without the intervention of an interpreter] it is not possible to submit opinions at a high level of confidence. However there does appear to be sufficient grounds to venture a view that he has developed an increasing paranoia towards his father-in-law, due to his belief that Mr Lam has abused and might continue to abuse his daughters in the future. This has ultimately led him to the violent acts with which he now stands charged.
Considering that issue from another perspective, it might be argued that if the abuse has in fact taken place, the stresses and strains of feeling that he has not been able to reduce the threat has traumatised Mr Li and precipitated what might be taken as a paranoid-like character reaction; which may be in fact a perfectly natural response to the circumstances that he perceives as a threat to his wife. If however, it be that an abusive father-in-law is a figment of Mr Li's imagination then it would indeed oblige the opinion that he is suffering from a paranoid character disorder.
It may be of particular relevance and significance that his wife stated that she did not regard him as suffering from any significant abnormalities."
Dr Groves made the following findings:
1.It was his opinion, on the grounds of reasonable medical certainty, that the applicant did not suffer from a diagnosable psychiatric disease (mental disease). In particular, there was no evidence that the applicant currently, or had ever, suffered from schizophrenia.
2.The applicant had a personality which is characterised by the development of paranoid ideas at times when he is placed under considerable stress or threat. In using the psychiatric term "paranoid", he said, he referred to what should be understood as a marked over-sensitivity and personal attribution of behaviour by other people being intended to cause him distress.
3.The applicant's perception of the allegations made by his wife of sexual abuse by her father was highly significant and had made a profound impact on him, sensitised as he was to a threat against what he perceived as the singularly most important thing in his life - his wife and his family. He had become preoccupied about his father-in-law's previous behaviour, as alleged by his wife, and what he considered to be the likelihood that this would continue when he had to return to Hong Kong once his tourist visa had expired.
4.In this context, the applicant formed a belief that the only solution was to confront his father-in-law with the express aim of threatening him in an attempt to frighten him away from the applicant's wife.
5.To complicate matters even further, the applicant felt entirely unsupported in dealing with this issue. It was the applicant's opinion that, if his family discovered the alleged abuse by his father-in-law against his wife, they would take a narrow view and would not accept his wife within their family unit in a situation where he believed that he and his wife would eventually return to become resident in Hong Kong.
6.The applicant was reluctant to disclose the nature of the abuse of his wife, as he believed that using this matter in mitigation for him at trial was likely to lead to its becoming public knowledge and to his family in Hong Kong becoming aware of the allegations made about his wife and the subsequent impact this would have on his marriage. He believed that his family might react in an adverse manner towards his wife if they discovered she had been sexually abused, and that this would leave him in a position where he and his wife would not be accepted by either family.
7.The applicant had a clear perception of the seriousness of his actions. He expressed both regret and remorse for them.
8.The applicant was unlikely to re‑offend. There was no history of any previous violent or criminal behaviour of any nature by the applicant. His actions occurred in the context of what he perceived as an intolerable threat to the safety of his wife and family, which he clearly perceived as the most important element in his life.
9.In considering the length of any custodial sentence, Dr Groves commented that two of the applicant's sisters clearly suffered from well diagnosed and reasonably severe schizophrenia. It is known, he said, that where two first degree relatives of a person suffer from schizophrenia, that person's relative lifetime risk of developing that condition is 20 per cent. While the applicant had not at that time developed schizophrenia, Dr Groves believed that he was clearly vulnerable to developing a condition which, characteristically, commences in one's twenties (the applicant was born on 19 February 1972).
Following his sentencing, the applicant filed, within the prescribed time, an application for leave to appeal against his sentences. However, on 19 July 1999, he signed a notice of abandonment of his appeal. He now seeks to set aside the notice of abandonment on the ground that it is a nullity. In the event of that application succeeding, he seeks to amend the grounds of his application for leave to appeal by substituting the following grounds:
"1.That since the imposition of sentence the 31st day of October 1997 my mental health has deteriorated to such an extent that the sentence has become more onerous.
2.Further and in the alternative fresh evidence has become available regarding my mental health which had it been available at the time of sentencing would have had a significant effect on the sentencing process."
The applicant has deposed that he did not understand the contents of the notice of abandonment of his appeal, as he does not read or speak English competently. He also claimed not to know whether it had been the prosecution or the Supreme Court which had sent the notice to him by post. His signature on the notice was witnessed by a prison warden. He denied that it had been translated for him.
At the time of his signing the notice, the applicant claimed he had been refused legal aid and that he was getting advice from his fellow prisoners. He said he had been to the Supreme Court, presumably before a single Judge, on a number of occasions, but that nobody seemed to understand him. He could not explain to the Court what he wanted to say. He became confused and frightened and decided to take the matter no further at that stage because he did not feel well and he did not understand what was going on. He said he thought he would wait until he felt better and less confused and hoped that he could then get legal advice, because his mother was trying to help him. He said a fellow prisoner told him that he could appeal up to three times, so he did not think he would be abandoning his appeal for ever. He did not, he said, intend to abandon his appeal. The Crown has not challenged any of the facts asserted in the applicant's affidavit.
In further support of the application, two reports from Dr J W Y Lee have been placed before the court. In the first report, dated 13 January 2000 addressed to the Consulate‑General of the Peoples Republic of China, Dr Lee, who speaks Cantonese, the language of the applicant, and who shares a similar cultural background to that of the applicant, reached the following conclusion:
"[The applicant] has been suffering from schizophrenia, which, in my opinion, developed after the offence while he was serving his prison sentence. His genetic predisposition to schizophrenia and the pressure of imprisonment compounded by social and cultural isolation would have contributed to his developing the psychosis. He is in need of long term psychiatric follow up and rehabilitation. He was described in prison as a very lonely prisoner with no visitors and no social support. He was unable to communicate properly with inmates and prison staff because of language barriers. Such an environment is not conducive to his psychiatric care. It is my opinion that his request that he be transferred to Hong Kong to continue with his prison sentence there is justified on medical grounds."
The suggestion regarding the transfer of the applicant to Hong Kong in order to continue with his prison sentence is misconceived. The information placed before us on behalf of the applicant indicates that, for transfers to be able to take place between Australia and Hong Kong, a bilateral transfer treaty would first be required to be in place. No decision, however, has yet been made on whether Australia will seek to conclude such a treaty with Hong Kong, and any such development is said to be unlikely to take place in the near future. It is also to be noted that Dr Lee, in his first report, expressed an opinion as to the applicant's state of mind at the time of his committing the offences. For the reasons noted later, the earlier reports of Mr Smith and of Dr Groves are the significant reports in the determination of this matter, because it is those reports which were before the learned sentencing Judge and upon which the later events are said to throw a different light.
Dr Lee did, however, express an opinion regarding the applicant's mental condition at the time of his signing the notice of abandonment, based upon his own examination and on the available clinical information.
The Casuarina Prison medical notes indicate that the applicant's behaviour first became of concern in March 1999, when he was referred to a visiting psychiatrist. He refused to see the psychiatrist in that month, however, and although he was reviewed by the psychiatrist several times without the aid of an interpreter in the following two months, owing to communication difficulties, no abnormal psychiatric symptoms were noted. However, his eccentric behaviour continued to be of concern. He appeared preoccupied and was seen to be smiling inappropriately to himself. He felt scared but he failed to explain why. On 15 June 1999, the attending psychiatrist noted that the applicant appeared to have difficulties in comprehension and to have an inability to express himself. He referred to difficulties in his thinking, saying he could not control his mind. He also described hearing buzzing noises. Schizophrenia was suspected and he was commenced on anti-psychotic medication. On 19 July 2000, he signed the notice of abandonment. His mental condition became progressively worse, necessitating his transfer to the Franklands Centre in Graylands on 29 September 1999. His clinical picture was indicative of a schizophrenic psychosis, of which he had shown active symptoms for six months prior to his transfer to the Centre. Dr Lee was of the opinion that, at the time of his signing the notice of abandonment, the applicant was suffering from active symptoms of his schizophrenic psychosis. Persecutory delusions, disorganisation of thinking and speech and impaired concentration had been the core symptoms of his illness. In Dr Lee's opinion, the applicant's thought disorganisation would have rendered him unable to comprehend his situation, to process information and to think logically. His judgment was further hampered by marked linguistic difficulties and cultural barriers.
Despite intensive treatment at the Franklands Centre, only partial remission of the applicant's schizophrenic symptoms was achieved. Due to heavy admission pressure on the Franklands Centre, however, the applicant was transferred back to Casuarina Prison on 25 February 2000. There was said to be evidence that his mental condition has deteriorated still further since his transfer back to the prison. He will continue to require long term psychiatric treatment and intensive rehabilitation which could not be adequately provided in the local setting by reason of language and cultural barriers and his lack of social support. Social and cultural isolation are known factors exacerbating schizophrenia and the applicant's imprisonment would, in Dr Lee's opinion, place a greater burden upon the applicant by reason of his severe mental illness.
The Criminal Practice Rules, in O IX r 13, provide:
"An Appellant at any time after he has duly served notice of Appeal or of Application for leave to Appeal, or of application for extension of time within which such notices shall be given, may abandon his appeal by giving notice of abandonment thereof in the Form No 7 in Part IV of the Schedule to these Rules to the Registrar, and upon such notice being given the appeal shall be deemed to have been dismissed by the Court of Criminal Appeal."
That rule is essentially the same as the English rule, which was discussed in R v Medway [1976] QB 779. The Court of Appeal in its decision conducted a detailed review of the earlier case law before summarising its conclusion as follows, at 798 ‑ 799:
"In our judgment the kernel of what has been described as the "nullity test" is that the court is satisfied that the abandonment was not the result of a deliberate and informed decision; in other words, that the mind of the applicant did not go with his act of abandonment. In the nature of things it is impossible to foresee when and how such a state of affairs may come about; therefore it would be quite wrong to make a list, under such headings as mistake, fraud, wrong advice, misapprehension and such like, which purports to be exhaustive of the types of case where this jurisdiction can be exercised. Such headings can only be regarded as guidelines, the presence of which may justify its exercise. As we have said at the outset, the jurisdiction of this court and of its predecessor is based upon statute and we have been referred to and have found no authority to support the existence of a parallel inherent jurisdiction."
That decision has been applied by this Court in Bridges v The Queen (1998) 20 WAR 59 and in R v La Rosa (1999) 105 A Crim R 362.
In my opinion, there is sufficient evidence before this Court in Dr Lee's report, which has not been challenged by the Crown, to require a finding that the notice of abandonment in this case is a nullity, on the basis that the applicant did not intend to abandon his application, his mind not going with his act of abandonment, and there should be a declaration accordingly. I therefore turn to the substantive grounds of appeal, which I would grant leave to be substituted for the original grounds. It is to be noted that neither of the substituted grounds relies upon any error in the learned sentencing Judge's exercise of his discretion.
The general rule regarding the effect of ill health as a mitigating circumstance was summarised by King J in Smith v R (1987) 44 SASR 587, at 589:
"Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a greatly adverse effect on the offender's health."
Lee J, in the Court of Appeal in New South Wales in R v Bailey (1988) 35 A Crim R 458, at 462, agreed with the observations of King J and went on to point out that the provision of proper medical attention to the prisoner in the case before him was the responsibility of the prison authorities and that the court would not interfere in this regard. It is, however, now well recognised that, in certain limited circumstances, evidence of matters or events which have occurred since the date of sentencing may be taken into account by a Court of Criminal Appeal.

The evidence before the learned sentencing Judge, as previously indicated, identified in the applicant a paranoid personality disorder, but there was no evidence of schizophrenia. The possibility of the applicant developing that condition was said to be 20 per cent. There was therefore insufficient basis for the learned sentencing Judge to sentence the applicant on the footing that the applicant would develop schizophrenia.
In R v Eliasen (1991) 53 A Crim R 391, in the Court of Criminal Appeal in Victoria, Crockett J, with whom McGarvie and Phillips JJ agreed, said, at 394:
"[I]t is plain that authority now establishes that this Court may, if it considers the case an appropriate one so to do, permit evidence of matters or events that have occurred since the date of the passing of the sentence upon an applicant to be placed before this Court with a view to this Court's reconsidering the matter in the light of that additional evidence. It must follow that if the Court does think that the additional evidence should lead to the imposition of a sentence different from that imposed by the judge, then even where the Judge's sentencing discretion has not miscarried the case must be treated as one calling for appellate intervention.
It has been said by this Court that if, on the material placed before it for the hearing of an application for leave to appeal against sentence, it considers that the sentence imposed was not an appropriate sentence, then the application may be allowed and a different sentence passed in lieu of that imposed below : see Pryor [1966] VR 457; Tutchell [1979] VR 248; Martin (unreported, Court of Criminal Appeal, Vic, 19 March 1990)."
In R v WEF [1998] 2 VR 385, at 388 ‑ 389, Winneke P said:
"In normal circumstances, if it is suggested that subsequent events have made or made to appear a sentence, appropriate when passed, manifestly excessive, then that is a matter for the consideration of the Executive in the exercise of the prerogative of mercy and not a matter for an appellate court. The authorities for this proposition have been collected and explained by this court recently in the case of R v Babic [1998] 2 VR 79, per Brooking JA at 80 ‑ 1.
However, this Court has recognised that there is a rare exception to this otherwise fundamental rule. The Court will receive evidence of events occurring after sentence, in appropriate circumstances, if those events can be said to be relevant, not so much per se, but because they throw a different light on circumstances which existed at the time of sentence."
See also R v Morgan (1996) 87 A Crim R 104, per Southwell AJA at 106 ‑ 108, R v Rostom [1996] 2 VR 97, per Charles JA at 99, R v Babic (1997) 93 A Crim R 254, per Brooking JA at 256, and R v Anderson (1997) 92 A Crim R 348, per Malcolm CJ at 350.
The new evidence in the report of Dr Lee in connection with the applicant's development of schizophrenia, in my opinion, deals with an event occurring after the applicant's sentencing which throws a different light on circumstances which existed at the time of his sentencing. This is a case which warrants the intervention of this Court, in the circumstances,

to reduce the sentences so that the applicant will be eligible for parole immediately. On this basis, I would reduce each of the sentences to one of 8 years and 6 months, the orders for concurrency and eligibility for parole remaining.

WALLWORK J: I agree with the reasons for judgment of Kennedy J and to the orders proposed by his Honour.
ANDERSON J: I have had the advantage of reading the reasons for judgment of the Acting Chief Justice. I agree with those reasons and with the orders proposed.