R v Dong

[2021] NSWCCA 82

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

R v Dong [2021] NSWCCA 82

Hearing dates:

19 March 2021

Date of orders:

30 April 2021

Decision date:

30 April 2021

Before:

Bathurst CJ at [1];
Bellew J at [2];
Beech-Jones J at [3]

Decision:

(1)   Appeal allowed;

(2)   Set aside the sentence imposed by Hidden AJ on 18 September 2020 and in lieu thereof sentence the respondent to a term of imprisonment of 21 years commencing on 9 June 2018 and expiring on 8 June 2039 with a non‑parole period of 15 years 8 months and a balance of term of 5 years and 4 months;

(3)   The respondent will be first eligible for release on parole on 8 February 2034.

Catchwords:

SENTENCING — Crown appeal against inadequacy of sentence — murder – House v R error - purposes of sentencing – failure to consider protection of the community from the offender – Veen (No 2) – proportionality of sentence – offender suffering mental illness – offence committed without apparent motive – manifest inadequacy – objective seriousness of offence – poor subjective case – appeal allowed – respondent resentenced

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Criminal Appeal Act1912

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

CMB v Attorney General for the State of NSW (2015) 256 CLR 346; [2015] HCA 9

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

DPP v Burton [2020] NSWCCA 54

Elturk v R [2014] NSWCCA 61; 239 A Crim R 584

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

House v The King (1936) 55 CLR 499

Manojlovic v R; R v Manojlovic [2020] NSWCCA 315

Murray v R [2019] NSWCCA 235

R v Dong [2020] NSWSC 1277

R v Edwards (No 3) [2019] NSWSC 1815

R v Engert (1995) 84 A Crim R 67

R v Fantakis; R v Woods [2018] NSWSC 1700

R v Hiroki [2015] NSWSC 496

R v Ly [2018] NSWSC 197

R v Marcus John Lee [2012] NSWSC 1240

R v Qingin Chen [2010] NSWSC 64

R v Ruttley (No 7) [2017] NSWSC 1582

R v Shepherd [2020] NSWSC 141

R v Stonestreet [2020] NSWCCA 212

Roff v R [2017] NSWCCA 208

Veen (No 2) (1987) 164 CLR 465

Veen v The Queen (No 1) (1979) 143 CLR 458

Wong v R (2001) 207 CLR 584; [2001] HCA 64

Category:

Principal judgment

Parties:

Regina (Appellant)
Shuo Dong (Respondent)

Representation:

Counsel:
P McGrath SC; C Young (Crown)
M Johnston SC (Respondent)

Solicitors:
Solicitor for Public Prosecutions (Crown)
Mardini Defence Lawyers (Respondent)

File Number(s):

2018/182685

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

[2020] NSWSC 1277

Date of Decision:

18 September 2020

Before:

Hidden AJ

File Number(s):

2018/182685

Judgment

1. BATHURST CJ: I agree with the orders proposed by Beech-Jones J and with his Honour’s reasons.

2. BELLEW J: I agree with Beech-Jones J and the orders that his Honour proposes.

3. BEECH-JONES J: This is an appeal by the Director of Public Prosecutions (the “Crown”) pursuant to s 5D of the Criminal Appeal Act1912 against a sentence imposed on the respondent for murder.

4. On 6 August 2020, the respondent appeared before Hidden AJ for sentence consequent upon his plea of guilty to an indictment charging him with the murder of Qi Yu at Campsie on Friday, 8 June 2018. On 18 September 2020, Hidden AJ sentenced the respondent to a term of imprisonment of 18 years, commencing 9 June 2018 with a non‑parole period of 13 years and 6 months (R v Dong [2020] NSWSC 1277; “Dong”). Subject to any intervention by this Court, he is eligible for release on parole on 9 December 2031.

5. To succeed in an appeal under s 5D, the Crown must demonstrate error of the kind identified in House v The King (1936) 55 CLR 499, 504 to 505 (see CMB v Attorney General for the State of NSW (2015) 256 CLR 346; [2015] HCA 9 at [54] per Kiefel, Bell and Keane JJ; “CMB”). Even if error is established, to justify resentencing an offender, the Crown must also “negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised” (CMB at [34] per French CJ and Gageler J and at [56] per Kiefel, Bell and Keane JJ).

6. In DPP v Burton [2020] NSWCCA 54 at [33], Basten JA noted that it is not necessary for the Crown on an appeal of this kind to also establish that the sentence was manifestly inadequate, although that is a factor in addressing both resentencing and the residual discretion. In Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 at [242] to [243], N Adams J queried this before stating that “[f]or my part, it seems doubtful that this Court would ever decline to exercise its residual discretion and go on to intervene to increase a sentence in a Crown appeal before first being satisfied that the sentence imposed was manifestly inadequate”. Both Hoeben CJ at CL (at [159]) and Button J (at [161]) agreed with her Honour.

7. It is not necessary to address this issue further because one of the Crown’s grounds of appeal is the manifest inadequacy of the sentence appealed from and I would uphold this ground. The Crown also contends that the sentencing judge erred in failing to consider the protection of the community when sentencing the respondent. I would also uphold this ground and consider that the residual discretion not to interfere should not be exercised. To explain the reason for these conclusions it is necessary to set out the background to the appeal and the sentencing judge’s findings.

The Murder of Ms Yu

8. Tendered before the sentencing judge was an agreed statement of facts which the sentencing judge described as “setting out the circumstantial case against the offender if the matter had proceeded to trial” (Dong at [2]). The following is taken from the agreed statement.

9. At the time of her death, Ms Qi Yu was 28 years old. She was born and raised in the Peoples Republic of China, came to Australia in 2009 when she was 18 and studied engineering. Ms Yu worked as an accounts manager and lived in an apartment in Campsie. She used one of the bedrooms upstairs and a flatmate, Ms Wu, used the other.

10. On 20 May 2018, the respondent moved into the unit. He used the downstairs bedroom and was apparently not allowed to go upstairs. On 2 June 2018, Ms Yu told her mother that the respondent had initially paid four weeks’ rent but then told Ms Yu he wanted to move out and sought the return of two weeks rent. She agreed. He was due to leave on 9 June 2018.

11. At about 6pm on Friday 8 June 2018, the respondent entered the unit while Ms Yu was present. At 7.16pm, Ms Yu was communicating with her mother on the “WeChat” application. She sent her mother a message stating “OMG. We’re having a power outage… something is not right, only our household is having a power outage”. Ms Yu did not send her mother any further message. The agreed facts record Ms Yu’s mother becoming distressed. She contacted a neighbour and asked her to check on her daughter.

12. At around 7.45pm, the neighbour called at the unit. She made a number of attempts to attract the attention of someone inside. Eventually, the respondent answered the door and gave her access. The unit was in darkness. The neighbour entered and checked the fuse box. She discovered the main switch had been turned off. Hidden AJ found that the respondent had turned it off (Dong at [3]). The neighbour turned the mains back on and spoke to the respondent. The respondent told the neighbour that Ms Yu was out to dinner. The neighbour returned to her unit. Her husband observed that Ms Yu’s car was still in the carpark.

13. At around 8.30pm that evening, Ms Wu returned home from work. As she walked upstairs, she noticed a red mark about 13 cm in diameter on the carpet on the stairs. She also noticed the door to Ms Yu’s bedroom was closed.

14. At about 8.45am on 9 June 2018, the neighbour returned to the unit at the request of Ms Yu’s mother. Ms Wu was woken by the neighbour’s knocking. Ms Wu noticed that the door to Ms Yu’s bedroom was unlocked and she was not in her room. Ms Wu met the neighbour at the door and let her inspect Ms Yu’s bedroom. Ms Wu rang “000”. By this time, Ms Yu’s car was no longer in the carpark. The police arrived just after 9.00am. They noticed bloodstains on the stairs and wooden floor. They saw further bloodstains in Ms Yu’s bedroom and in the downstairs bathroom. They established a crime scene.

15. The respondent arrived at the unit in his friend’s car at about 9.25am. He told police that he last saw Ms Yu at about 5.00pm the previous evening.

16. Later that day, the respondent attended Campsie Police Station and voluntarily took part in an interview. He told police he had never been upstairs in the unit or in Ms Yu’s car. He said the rent was too much for him and so he had given Ms Yu notice about one week earlier. He said they had not argued. The respondent referred to the power outage and the neighbour attending and turning the power back on. He said he had been in his room watching TV when he heard someone leave the house. He said he went out for dinner at about 8.30pm and came home between 11.00pm and midnight. He denied having anything to do with the Ms Yu’s disappearance.

17. The respondent was then arrested. According to the agreed facts he appeared to faint and was admitted to Concord Hospital. The agreed facts record that the doctors at Concord Hospital concluded that it was “highly likely that [the respondent’s] behaviours are malingering or factitious”. He was released into police custody on 12 June 2018. He was arrested and, when interviewed again, generally responded, “I don’t know” and “I don’t remember.” He was then charged.

18. On 9 June 2018, the police found the key to Ms Yu’s car under the driver’s side floor mat in the offender’s friend’s car. After examining the data on the respondent’s mobile phone, the police located Ms Yu’s car outside the house of the respondent’s friend. The police found blood drops and smears inside the car. The offender’s fingerprints and DNA were found in various places inside her car.

19. The respondent was interviewed again on 11 July 2018. The police told him that his fingerprints and DNA had been found inside Ms Yu’s car. He responded, “I will explain that in the court and to my solicitor”.

20. The police analysed the data from the offender’s mobile phone and discovered that it had travelled on the M1 Motorway north of Sydney to an area near Ku Ring Gai Railway Station on the night of her disappearance. On 25 July 2018, police travelled to the spot indicated by the data being an emergency stopping area, close to Ku Ring Gai Railway Station. Within a short distance of the road, police discovered Ms Yu’s remains. Her body was lying at the bottom of a gully amongst dead branches and shrubbery. The bottom half of her body was undressed and exposed, as was most of the torso. A shirt was tied around her neck.

21. The offender’s DNA was found on the mid-forearm area of both of the sleeves of the shirt tied around Ms Yu’s neck and on two other areas of one of the sleeves. A post mortem report described the direct cause of death as “unascertained.” Although the ligature was tight around Ms Yu’s neck, the report noted that the hyoid was intact, and no injuries were noted with the neck dissection. There was extensive decomposition to Ms Yu’s body. The report noted that the “extent of the decomposition, with subsequent tissue loss, could mean that underlying injuries which may have been present in the muscles or soft tissue, cannot be visualised”. It also noted that the absence of underlying factures to bones such as the hyoid “does not exclude instrumental strangulation”.

22. The police search of the data on the respondent’s phone revealed that he made a number of searches on Google between 3.44pm and 3.52pm on 6 June 2018, being two days prior to Ms Yu’s murder, using the words “How would Homicide be sentenced in Australia”. He also visited webpages with the following titles:

“Legal knowledge, how many years would intentionally (sic) homicide be given in Australia”.

“The sentencing criteria for intentional homicide. What expenses must be compensated for after intentional homicide”.

“What are the characteristics of intentional homicide? And how to properly determine intentional homicide”.

“Australian Chinese life knowledge, our steps, life and other staff, comparison of underage criminal offence sanction between China and Australia”.

23. The police analysis of the respondent’s phone also revealed that on 8 June 2018 from 9.33pm, the respondent made about 18 searches of different areas around Sydney including the Royal National Park, St Ives, St Ives Chase, Mount Colah and Berowra. At 11.42pm and at 6.46am the following morning, the respondent searched for the address of his friend whose car he used that day.

24. Consistent with the respondent’s plea and the above facts, the sentencing judge found that sometime between 7.16pm and 10.00pm the respondent murdered Ms Yu and that between 10.00pm and 10.30pm he took her body in her car, and left it in a gully at the side of the M1 Motorway near Ku Ring Gai Railway Station (Dong at [7]).

25. His Honour also made two further factual findings of particular relevance to the respondent’s culpability, neither of which were challenged on appeal. First, his Honour found that he was “satisfied beyond reasonable doubt that the murder was premeditated” (Dong at [64]). Second, his Honour found that “on the night of the offence the [respondent] turned off the power so as to lure Ms Yu from her bedroom, with the intention of killing her” (Dong at [65]). In so finding, his Honour rejected an account given by the respondent to a psychologist to the effect that the killing was a spontaneous reaction to offensive comments Ms Yu made about his mother and her refusal to pay him money he was owed. The finding of premeditation was largely based on what was revealed by the police analysis of the respondent’s phone especially the searches that were made on 6 June 2018. His Honour made these finding notwithstanding that he also noted the “lack of any clear evidence as to how Ms Yu met her death” and “the paucity of evidence of the offender’s motive for the killing” (Dong at [68]). In relation to the latter, his Honour concluded that no positive finding about the respondent’s motive could be made (Dong at [68]).

The Sentencing Judgment

26. In the sentencing judgment, his Honour summarised the agreed facts and made the findings just noted. Ultimately, his Honour found that it was a murder of “considerable objective seriousness” and it was aggravated by having been committed in Ms Yu’s home and the “degree of callousness on the part of the [respondent]” in disposing of her body (Dong at [69]). Otherwise, I note the following four matters about the sentencing judgment.

27. First, his Honour addressed the respondent’s subjective case. At the time of the offence, he was 19 years of age. He is a Chinese national who came to Australia in September 2017 on a tourist visa and subsequently applied for a protection visa which was refused. He had no criminal record. He was described as having a very low IQ and having grown up as a reclusive child with little or no friends. The respondent told his psychiatrist that about a year prior to coming to Australia he was violently assaulted. Further, according to his Honour, his mother told the psychiatrist that “he had a dispute with his father over a trivial matter” in which he “picked up a kitchen knife and cut his father on the arm” (Dong at [32]).

28. Second, his Honour noted the respondent’s plea of guilty and reduced his sentence by 25% (Dong at [78]). His Honour declined to make a finding of special circumstances concluding that “no lesser non-parole period would be sufficient to reflect the offender’s criminality” (Dong at [76]).

29. Third, his Honour noted the effect of victim impact statements from Ms Yu’s parents describing them as “powerful and eloquent expression of their grief and outrage at the brutal and untimely death of their daughter” (Dong at [63]).

30. Fourth, his Honour addressed the evidence from two psychiatrists, Dr Dayalan and Dr Allnutt, in detail. Dr Dayalan’s evidence was adduced on behalf of the offender. He interviewed the offender twice. Dr Dayalan recounted the respondent telling him that when he was 14 years old, he was diagnosed with a depressive disorder (Dong at [36]) and that he had a history of psychotic symptoms from the age of 13 (Dong at [37]). Dr Dayalan reviewed the respondent’s medical records since his arrest on 9 June 2018 which his Honour described as “disclos[ing] persistent complaints of auditory hallucinations and persecutory delusions” (Dong at [41]). Dr Dayalan described the respondent’s history and presentation as “suggestive of intellectual impairment from an early age”. Dr Dayalan noted “instances of [the respondent] exaggerating symptoms and presenting in an affected manner” but nevertheless concluded that he “would be regarded as suffering from schizophrenia” (Dong at [51] to [52]).

31. The sentencing judge noted that Dr Dayalan addressed the relationship between the respondent’s mental condition and offending behaviour (Dong at [53] to [54]). The relevant conclusion of Dr Dayalan was that his “psychotic disorder in conjunction with his intellectual impairment probably impacted on his judgment and ability to consider the consequences of his behaviour” but added that “[t]here is no evidence to suggest that the offending behaviour was directly influenced by his psychotic symptoms”.

32. On this appeal, Senior Counsel for the appellant, Mr McGrath SC, emphasised the following part of Dr Dayalan’s report:

“[The respondent] has been involved in physical altercations within the prison setting… he presents with poor impulse control and poor frustration tolerance…He displays limited insight into his mental illness and has ongoing psychotic symptoms. He would be regarded as posing a high risk of reoffending and this risk may be partially mitigated by effective treatment of his psychiatric conditions. I would have a guarded risk on his prospects of rehabilitation.” (emphasis added)

33. Dr Allnut’s evidence was adduced by the Crown. The respondent refused to participate in an interview with him. Instead, Dr Allnut’s opinions were based on his review of the medical records and Dr Dayalan’s reports (Dong at [35]). Dr Allnut described how the limited and conflicting material affected his ability to assess the respondent. Dr Allnut ultimately opined that the respondent “probably has got schizophrenia” but was “less convinced” that the respondent was affected by a cognitive impairment. He agreed with Dr Dayalan that there was no evidence that at the time of the offence he was driven by psychosis (Dong at [58] to [59]).

34. Hidden AJ described the reports of Dr Dayalan and Dr Allnut as “measured and carefully considered” and stated that he had given “the question of the bearing of mental illness upon the sentencing exercise careful consideration” (Dong at [70]). His Honour found that he was “satisfied that the offender suffers from schizophrenia and did at the time of the offence” and that it was “likely that the condition is of long standing” (Dong at [71]).

35. In light of the grounds of appeal, it is necessary to set out the balance of Hidden AJ’s dispositive findings and reasons as follows:

“72   ... In the light of Dr Dayalan’s evidence, and despite the paucity of evidence about the circumstances of the offence, I have concluded that the offender’s behaviour was likely to have been influenced to some extent by the impaired judgement characteristic of schizophrenia even when the person suffering that condition is not experiencing positive symptoms. I accept Dr Dayalan’s conclusion that he is of subnormal intelligence, and this also may have had a part to play. However, to what extent these factors impaired his judgement I cannot say. Nevertheless, this must have some bearing on the assessment of the offender’s moral culpability and the need for general deterrence, although not to any marked degree. Deterrence, both specific and general, remain important considerations.

73   I take into account the offender’s age, his lack of any criminal history, and his difficult background, including his mental illness and his intellectual deficit. He has pleaded guilty, but I am not persuaded that he is remorseful for his crime. I accept that he expressed shame about his behaviour to Dr Dayalan and was genuinely distressed but, in the light of his refusal to disclose how and why he killed Ms Yu, he does not demonstrate the acceptance of responsibility for his crime which is an essential aspect of remorse. The plea of guilty would appear to be a recognition of the inevitable, given the strength of the Crown case. However, it has the utilitarian value of having been entered early and entitles the offender to a 25% discount of sentence in accordance with the current statutory regime.

74   His prospect of rehabilitation is uncertain. In his report, Dr Dayalan referred to the Justice Health records concerning the offender’s physical altercation with an inmate and his experience of voices urging him to engage in violence. The doctor noted his limited insight into his mental illness and ongoing psychotic symptoms, and considered that he would be “regarded to pose a high risk of reoffending”. He added that this risk might be “partially mitigated by effective treatment of his psychiatric conditions”, but expressed a “guarded view on his prospects of rehabilitation”. I share that view. However, this is not to say that there is no prospect of rehabilitation. The offender is young, he is receiving treatment in custody, and there is evidence that he has been complying satisfactorily with prison routine.

75   As to his experience of incarceration, I accept Dr Dayalan’s opinion that the offender is “quite vulnerable within the correctional environment on account of his intellectual impairment, language barrier and ongoing psychotic symptoms”. Dr Dayalan added that, given “his ongoing persecutory beliefs, interpersonal skill deficits and history of traumatic experiences,” incarceration would be more onerous for him. I am also mindful that, as a foreign national, he would have no family, and probably no friends, to visit him.”

36. Three related matters should be noted about this extract.

37. First, of the various purposes of sentencing that are specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the “Sentencing Act”) the only ones that were expressly mentioned in this extract were general and specific deterrence (s 3A(b)) as well as the rehabilitation of the offender (s 3A(d)). The object of protecting the community from the offender (s 3A(c)) was not expressly referred to.

38. Second, Hidden AJ only expressly referred to the passage from Dr Dayalan’s report set out above (at [32]) in the context of addressing the respondent’s prospects of rehabilitation.

39. Third, in oral argument Mr McGrath SC accepted that the finding about the respondent’s prospects of rehabilitation at the end of [74] was not challenged, although he contended that the finding was “not … properly balanced” with prison records about the respondent’s violent behaviour in prison that were commented on by Dr Dayalan and Dr Allnut as noted above. As I understand this submission, it involved an acceptance of the (very limited) finding of rehabilitation made by the sentencing judge, but also a contention that the failure of the sentencing judge to acknowledge the material about the offender’s violent conduct in prison supports the Crown’s argument that the sentencing judge failed to consider the protection of the community.

Ground 1: Protection of the Community

40. Ground 1 of the Crown appeal contends that the sentencing judge failed to take into account the protection of the community.

41. The Crown’s submissions in relation to this ground focus attention on that part of the sentencing judgment which is extracted above. The submissions take as their starting point s 3A(c) of the Sentencing Act which, as already noted, designates protecting the community from the offender as one of the purposes of sentencing and its end point the failure of the sentencing judge to expressly refer to community protection in the above passages in circumstances where, according to the Crown, “the need to protect the community should have been a critical consideration in sentencing”. Between those two points, the Crown’s submissions referred to various authorities concerning the countervailing effects of an offender’s mental illness on the various purposes of sentencing, specifically that it may reduce an offender’s moral culpability and the need for general deterrence but also result in them representing a danger to the community warranting the attachment of greater weight to specific deterrence and community protection (see DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] per McClellan CJ at CL; “De la Rosa”; Elturk v R [2014] NSWCCA 61; 239 A Crim R 584 at [46] per Beazley P; R v Stonestreet [2020] NSWCCA 212 at [44] per Davies J; Murray v R [2019] NSWCCA 235 at [58] per Price J).

42. Senior Counsel for the respondent, Mr Johnston SC, noted that the sentencing judge did not expressly refer to community protection but pointed to the otherwise carefully balanced approach his Honour adopted in addressing the relevance of his client’s mental illness to the sentencing exercise, including specific and general deterrence. He submitted that these matters showed that “his Honour was aware that he was required to balance sentencing factors that pointed in favour of the protection of the community”.

43. Section 3A of the Sentencing Act, specifies the purposes for which a Court may sentence an offence as including ensuring the offender is adequately punished for the offence (s 3A(a), the prevention of crime “by deterring the offender and other persons from committing similar offences”, that is specific and general deterrence (s 3A(b)), promoting the rehabilitation of the offender (s 3A(d)), denouncing their conduct (s 3A(f)) and recognising the harm their conduct occasioned (s 3A(g)). As already noted, it includes protecting the community from the offender. Section 3A is consistent with the common law. Hence, in Veen (No 2) (1987) 164 CLR 465 (“Veen (No 2)”) at 476, Mason CJ, Brennan, Dawson and Toohey JJ referred to the purposes of sentencing as “various” and identified them as the “protection of society, deterrence of the offender and others who be tempted to offend, retribution and reform”. Their Honours noted that the “purposes overlap and none of them can be considered in isolation” and “sometimes they point in different directions” (id). The observation that sometimes the purposes point in different directions is illustrated by the approach adopted in the authorities noted above concerning the interaction between mental illness and the purposes of sentencing (see also R v Engert (1995) 84 A Crim R 67).

44. As stated in Veen (No 2), although “sometimes” the purposes of sentencing point in different directions, sometimes those purposes point in the same direction; ie “overlap”. Hence, in many if not most cases, the giving of a substantial weight to specific and general deterrence can also serve to further the protection of the community, including protection from the offender. However, deterrence and community protection are not co-extensive. As its name implies, deterrence is directed to the ameliorating the conduct of this particular offender, other offenders and would be offenders while they are in the community, although the concept includes the object of deterring the commission of crimes in custody. The concept of the protection of the community from the offender includes the effective protection of the wider community by their incarceration for a designated period, something that specific deterrence cannot ensure.

45. The limits on the utilisation of this aspect of the protection of the community emerge from Veen v The Queen (No 1) (1979) 143 CLR 458 (“Veen (No 1)”) and Veen (No 2). In Veen (No 1), the offender was convicted of manslaughter on the basis of substantial impairment (Crimes Act 1900, s 23A). The sentencing judge found that he suffered from some form of brain damage which made it “likely sooner or later [he would] kill or seriously injure one or more human beings” (at 487) and that, although “[p]unishment will not deter him” he had to be imprisoned “for the protection of the community from his own uncontrollable urges” (at 487). The sentencing judge imposed a life sentence. The High Court unanimously held that a sentence could not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of the offender reoffending (at p 467, 468, 482-483 and 495; Veen (No 2) at 472). Stephen, Jacobs and Murphy JJ were satisfied that the life sentence was too severe and resentenced the offender to a term of twelve years imprisonment (at 490, 496), whereas Mason and Aickin JJ proposed that the sentence be remitted to be reconsidered with further evidence (at 472, 498).

46. The risk of the particular offender reoffending that was identified in Veen (No 1) tragically materialised when on his release from prison the same offender killed someone else. He pleaded guilty to manslaughter on the basis of substantial impairment and was again sentenced to life imprisonment. His second appeal to the High Court was dismissed. Mason CJ, Brennan, Dawson and Toohey JJ restated the proportionality principle in Veen (No 2) (at 472) but also confirmed that an appropriate sentence, that is one which is proportionate to the crime, is one which includes consideration of the protection of society (at 473 to 474):

“It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible … the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society's protection in determining the sentence calls for a judgment of experience and discernment.”

47. While this statement countenances considering the protection of the society by the imprisonment of a dangerous offender that is limited by the principle that a “consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality” (Veen (No 2) at 477).

48. The proposition that the purposes of sentencing often overlap means that, for many cases, if a sentencing judge gives proper consideration to general and specific deterrence then, in doing so, they will have addressed the protection of the community, including protection from the offender, or put another way, there will be no residual component of community protection that remains to be considered. However, in some cases, such as those where the offender’s mental illness or other circumstances makes them a potential danger but also a poor candidate for general deterrence and unresponsive, or at least less responsive, to specific deterrence, then the need to protect the community from them may be a very significant factor that needs to be separately and expressly considered by the sentencing judge, albeit in a manner consistent with Veen (No 2). Further, a finding of error on the part of the sentencing judge based on the absence of an express reference to the protection of the community is more likely if the parties adverted to the potential danger posed by the offender in their submissions.

49. In this case, the issue of community protection was referred to in the Crown’s submissions before the sentencing judge, although it was not given any particular prominence. In its written submissions before the sentencing judge, the Crown referred to the absence of any evidence of motive from the respondent as to why he killed Ms Yu and then referred to a statement by Price J in Murray v R [2019] NSWCCA 235 at [58] to the effect that the absence of a motive is not a matter that can be taken in account in determining the objective seriousness of a crime but it can be considered in assessment of the need for community protection (and the offender’s rehabilitation). Mr Johnston SC submitted that this submission was only directed to an assessment of objective seriousness but I take it as directed to the sentencing exercise generally.

50. The Crown’s written submissions before the sentencing judge also included a general submission that, given the gravity of the offence, “retribution, deterrence and the need to protect society should not cede to the interests of rehabilitation”. The written submissions of the respondent addressed the need for community protection by referring to the limiting principle articulated in Veen (No 2), that the sentence cannot exceed that which is proportional to the crime. In oral submissions before the sentencing judge, the Crown Prosecutor referred to the “danger that the offender poses to the community”.

51. In considering the significance of the references to community protection in the submissions before the sentencing judge to the ultimate question of whether House v R error is established, it must be borne in mind that the parties were not aware of what findings the sentencing judge would make and how they would be related to the other sentencing factors. Even so, the overall theme of the Crown’s submissions was that, even if allowance is made for the respondent’s mental illness as ameliorating some of the factors in sentencing, then other factors, especially protecting the community from him, should come to the fore.

52. The sentencing judge ultimately accepted the existence of the respondent’s mental illness and its causal effect on his offending (Dong at [72]). His Honour then considered those findings but only in a manner that was favourable to the respondent. His Honour found that his moral culpability was reduced (Dong at [72]) and his mental illness made him especially vulnerable in custody (Dong at [75]). Further, while his Honour noted that specific and general deterrence “remain important considerations”, implicit in that statement is that, consistent with the authorities noted above, they were of reduced significance compared to that of an equivalent offender who was not so affected. His Honour had regard to his mental illness in the assessment of the respondent’s prospects of rehabilitation. While the ultimate conclusion reached was pessimistic, it appeared to be more favourable than Dr Dayalan’s assessment.

53. As noted by the Crown in its submissions in this Court, the effect of his Honour’s findings was that the respondent committed premeditated murder for no apparent motive while under the operative effect of a mental illness. His prospects of rehabilitation were poor, he had limited insight into his condition and while in custody he had been involved in violence and on some occasions not taken his medication. While the respondent was not in the same position as the offender in Veen (No 2), to only treat his mental condition in the manner that the sentencing judge did meant that community protection in the sense discussed above was not taken into account. In this case, the need to protect the community against the potential danger posed by a respondent who committed a premediated and apparently motiveless murder, and who has poor prospects of rehabilitation, was a matter that had to be expressly addressed in the sentencing exercise, albeit in a manner consistent with Veen (No 2).

54. I am satisfied his Honour’s failure to address that amounted to House v R error. Ground 1 is made out.

Ground 2: Manifest Inadequacy

55. Ground 2 of the Crown’s appeal contends that the sentence imposed was manifestly inadequate.

56. A finding that a sentence is manifestly inadequate does not follow from a conclusion that the result below was markedly different from sentences imposed in other like or similar cases but instead is warranted only if “the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons" (Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [72] cited in Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58] to [59]; “Hili”). Ultimately, what “reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence” (Hili at [59]).

57. The Crown’s written submissions in support of this ground pointed to the objective seriousness of the offence, the respondent’s poor subjective case and the necessity to give proper weight to sentencing considerations, including the need to protect the community, as matters demonstrating the manifest inadequacy of the sentence imposed. Mr McGrath SC contended that the sentencing judge’s finding that the offence was of “considerable objective seriousness” was the equivalent of a finding that the offence was “well above the middle of the range” or “towards the upper end of the scale”. I do not agree. His Honour was not obliged to locate the offence by reference to the hypothetical range of offending for murder. Instead, his Honour’s conclusion should be taken at face value. Nevertheless, this was a premediated, apparently motiveless murder that resulted in the body being dumped in a callous fashion.

58. The parties also debated a number of potentially comparable cases that were raised before the sentencing judge which were said to involve the disposal of a body by an offender and unknown motivations for their actions. Their effect can be illustrated by discussing four of them. Thus, in R v Ly [2018] NSWSC 197 (“Ly”) the offender bashed his partner on the way home from a hotel and left her body under a hedge. The killing was found to be “spontaneous and unplanned” (Ly at [14] to [15]). The sentencing judge found the offence was “at about the mid-point of objective seriousness” (Ly at [15]). It was also found that the offender’s Post Traumatic Stress Disorder materially contributed to the offending (Ly at [32]), but the offender was “most unlikely to reoffend” (Ly at [35]). The offender was also found to be remorseful (Ly at [36]). Prior to any discount for the offender’s plea of guilty, the head sentence was 22.5 years with a non-parole period of 16.5 years.

59. In R v Edwards (No 3) [2019] NSWSC 1815 (“Edwards”), the offender was sentenced to 24 years imprisonment with a non-parole period of 18 years, following a trial. He killed his wife by unknown means and disposed of her body which was never found (Edwards at [25]). Neither a finding of intention to kill or of premeditation could be made (Edwards at [45] to [46]). The offence was found to fall marginally below the middle range (Edwards at [50]). It was found that the offender was unlikely to reoffend on his release but that was principally on account of his age (Edwards at [68]).

60. In R v Marcus John Lee [2012] NSWSC 1240 (“Lee”) the offender killed his ex-partner as she made her way home from a hotel late at night. She died due to the “combined effects of neck compression, gagging and plastic bag asphyxia” (Lee at [44]). He then placed her body in the boot of his vehicle intending to dispose of it in bushland but his car broke down (Lee at [45]). The sentencing judge found that it was not a planned offence (Lee at [61]) and found that it fell “squarely in the mid-range of objective seriousness” (Lee at [69]) and involved an intention to kill (Lee at [53]). The offender was found to be remorseful (Lee at [72]) and entitled to some discount on account of his voluntarily surrendering to police and making admissions (Lee at [76]). Prior to any discount for his pea, the offender was sentenced to 24 years imprisonment with a non-parole period of 18 years.

55. In R v Shephard [2020] NSWSC 141 (“Shephard”), prior to any discount, the sentence imposed on the offender was 29 years. The offender was a drug dealer who shot a customer who had offended his partner and disposed of the deceased’s body. The killing was planned. The sentencing judge described it as “an extremely grave example” of murder (Shephard at [27]). No subjective case was presented on behalf of the offender (Shephard at [28]). The sentencing judge described him as “a very dangerous person” but added that the sentence that imposed “does not reflect any contingent incapacitation for future dangerousness” (Shephard at [43]).

56. The other cases referred to by the parties were largely similar to Ly, Edwards and Lee, namely relatively motiveless murders that were not premeditated, where a combination of findings were made in the offender’s favour concerning some of remorse, rehabilitation, the principles stated in De La Rosa or those stated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (see R v Hiroki [2015] NSWSC 496; “Hiroki”; R v Fantakis; R v Woods [2018] NSWSC 1700; “Fantakis”; R v Ruttley (No 7) [2017] NSWSC 1582; “Ruttley”; R v Quinglin Chen [2010] NSWSC 64). All these cases involved undiscounted sentences of around 24 years. Another case, Roff v R [2017] NSWCCA 208, involved a premeditated murder for which the offender received a 25 year sentence. However, he had a strong subjective case including a finding of good prospects of rehabilitation (at [9]) and physical disability making custody more onerous (at [37]).

57. In this case, prior to any discount for the respondent’s plea of guilty, the head sentence imposed was 24 years and the non-parole period was just over 18 years and 1 month. In his written submissions, Mr Johnston SC submitted that this sentence “sits comfortably within the middle of [the] range” established by these cases. To the extent that this submission refers to the “range” suggested by cases such as Ly, Edwards and Lee (and the other cases just noted), then it should be accepted. However, this case is not comparable to but is significantly worse than those cases. Not only is it an apparently motiveless (and senseless) murder with significant contempt for the deceased being shown by the manner in which her body was disposed of, this case involved a premediated killing and those cases did not. Moreover, the respondent’s subjective case was especially poor compared to those cases, with the only matter in his favour being his youth and what benefit he could derive from the application of the principles stated in De La Rosa to the findings about the state of his mental health. However, as explained in relation to ground 1, that was offset to a significant degree by a consideration of the danger he posed to the community. If anything, Shephard is a much closer comparable case rather than Ly, Edwards and Lee.

58. Given the agreed facts, the undisputed findings and the analysis undertaken in relation to ground 1, I am satisfied that there was a “misapplication of principle” and the sentence imposed was manifestly inadequate. I would uphold ground 2.

Residual Discretion and Resentencing

65. The respondent was notified of the Crown’s intention to appeal the sentence relatively promptly. Ground 1 of the appeal raises both an issue of principle and a matter that warrants resentencing given the potential danger posed to the public by the respondent. The imposition of an increased sentence would serve that objective and serve to maintain public confidence in the administration of justice. I do not consider that the residual discretion not to intervene should be exercised.

66. Having regard to the undisputed findings and the analysis under ground 1, I consider that a sentence of 28 years imprisonment is warranted prior to the allowance of any discount for the respondent’s plea. After allowance for the plea and rounding, the sentence becomes 21 years with a non-parole period of 15 years and 8 months.

67. Accordingly, I propose the following orders:

1. Appeal allowed;

2. Set aside the sentence imposed by Hidden AJ on 18 September 2020 and in lieu thereof sentence the respondent to a term of imprisonment of 21 years commencing on 9 June 2018 and expiring on 8 June 2039 with a non‑parole period of 15 years 8 months and a balance of term of 5 years and 4 months;

3. The respondent will be first eligible for release on parole on 8 February 2034.

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Amendments

17 May 2021 - [54] - Minor typographical amendment

Decision last updated: 17 May 2021