Liu v R

Case [2023] NSWCCA 30 24 February 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: LIU v R [2023] NSWCCA 30
Hearing dates: 30 November 2022
Date of orders: 24 February 2023
Decision date: 24 February 2023
Before: Adamson JA at [1];
Campbell J at [2];
McNaughton J at [50].
Decision:
(1) Grant leave to appeal on sentence
(2) Appeal dismissed

Catchwords:
CRIMINAL LAW – appeal against severity of sentence – elderly offender – whether sentencing judge failed to properly consider the offender’s advanced age in sentencing – applying principles in Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim 539

Legislation Cited:
Crimes Act 1900 (NSW) s 27
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A; 54A

Cases Cited:
Betts v R (2016) 258 CLR 420; [2016] HCA 25
Gulyas v Western Australia [2007] WASCA 263; 178 A Crim 539
Holyoak v R (1995) A Crim R 502
House v The King (1936) 55 CLR 499
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
R v Hunter (1984) 36 SASR 101
R v Mammone [2006] NSWCCA 138
R v McLean (2001) 121 A Crim R 484
R v Simpson (2001) 53 NSWLR 704
Zreika v R [2012] NSWCCA 44 223; (2012) A Crim R 460

Category: Principal judgment
Parties: Zhiyun Liu (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Game SC with E Sullivan (Applicant)
E Balodis (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/99385
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Parramatta

Citation:

Unreported

Date of Decision:

02 July 2021

Before:

O’Rourke SC DCJ

File Number(s):

2020/00099385

HEADNOTE

[This headnote is not to be read as part of the judgment]

Zhiyun Liu (the Applicant), entered a plea of guilty to causing grievous bodily harm with intent to murder, contrary to s 27 of the Crimes Act 1900 (NSW). On 2 July 2021, the District Court of New South Wales sentenced the Applicant to imprisonment for 12 years with a non-parole period of 7 years and 3 months.

The facts of the offending were as follows. The Applicant married the victim, Ming Zhu Lu in 2014. In 2017, Ms Lu was carer to the wife of Xiao Yang. When his wife passed away, the Applicant and Ms Lu resided with Mr Yang. The applicant became jealous of what he perceived to be the victim’s attention to Mr Yang.

Sometime after midnight on 31 March 2020, on his return to bed from the bathroom, the Applicant grabbed a meat tenderiser mallet and a long kitchen knife. When he returned to bed, in a ferocious attack, he hit Ms Lu about her head and face with the mallet. During the attack, Ms Lu awoke. The Applicant stabbed Ms Lu in her sternum and then continued the attack with the mallet. Mr Yang woke from Ms Lu’s cries for help, he saw the Applicant attacking Ms Lu with the mallet and telephoned…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Liu v R

Details

AGLC: Liu v R [2023] NSWCCA 30
Case: [2023] NSWCCA 30
Decision Date: 24 February 2023

CaseChat Overview and Summary

In Liu v R, the appellant, Liu, appealed against the severity of the sentence imposed by the sentencing judge. Liu was convicted of a serious criminal offence and was sentenced to a term of imprisonment. The appellant's advanced age at the time of sentencing was a significant factor in the appeal, with the argument that the sentencing judge failed to properly consider this aspect in determining the appropriate sentence.

The primary legal issue before the court was whether the sentencing judge had appropriately taken into account Liu's advanced age when imposing the sentence. The court was required to examine the sentencing principles and whether they had been correctly applied in light of the offender's age. The appellant's legal team argued that the sentence was excessively harsh given Liu's age and that the sentencing judge had not adequately considered this mitigating factor.

The court considered the principles outlined in Gulyas v Western Australia, which emphasises the importance of taking into account the age of an offender when sentencing, particularly when dealing with elderly offenders. The court found that the sentencing judge had indeed considered Liu's age but had determined that it did not sufficiently mitigate the severity of the offence committed. The court concluded that the sentence imposed was not excessive, given the nature and circumstances of the crime. The appeal was therefore dismissed, and the original sentence was upheld.

No additional orders were made by the court beyond the dismissal of the appeal.

Orders