Shen v The King

[2024] NSWCCA 252

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Shen v R [2024] NSWCCA 252

Hearing dates:

23 October 2024

Date of orders:

23 October 2024

Decision date:

20 December 2024

Before:

Kirk JA at [1];
Rothman J at [2];
Yehia J at [35]

Decision:

(1) Grant leave to appeal;

(2) Allow the appeal;

(3) Quash the sentence imposed on the applicant by the District Court on 17 November 2023;

(4) Sentence the applicant to a non-parole period of 2 years and 3 months commencing 11 September 2022 and concluding 10 December 2024 with a remainder of term of 2 years and 3 months concluding 10 March 2027;

(5) The applicant is first eligible for parole on 10 December 2024.

Catchwords:

Crime – appeals – appeal against sentence – manifest excess

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Director of Public Prosecutions (Commonwealth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

House v The King (1936) 55 CLR 499

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category:

Principal judgment

Parties:

Zhang Shen (Applicant)
Rex (Respondent)

Representation:

Counsel:
S Goodwin (Applicant)
P Hogan (Respondent)

Solicitors:
Broaden Legal (Applicant)
Office of the Director of Public Prosecutions
(Respondent)

File Number(s):

2022/271182

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

17 November 2023

Before:

N Williams DCJ

File Number(s):

2022/271182

JUDGMENT

1. KIRK JA: The reasons given by Rothman J accord with my own reasons for joining in the orders made on 23 October 2024.

2. ROTHMAN J: On 23 October 2024, the Court dealt with an application for leave to appeal and the appeal of the applicant, Zhang Gen Shen, at the conclusion of which the Court issued orders granting leave to appeal, allowing the appeal, quashing the sentence imposed on the applicant by the District Court on 17 November 2023, and sentencing the applicant to a non-parole period of 2 years and 3 months commencing 11 September 2022 and concluding 10 December 2024 with the remainder of the term of 2 years and 3 months concluding 10 March 2027. The applicant, on the orders issued by the Court, was first eligible for parole on 10 December 2024. The Court reserved reasons. The following are the reasons that I joined in the orders issued by the Court on 23 October 2024.

3. The applicant raised one ground of appeal, namely, that:

4. The sentence is manifestly excessive.

Facts

5. The applicant was charged with one charge of aggravated detain, intending to commit a serious indictable offence (assault occasioning actual bodily harm), causing actual bodily harm, contrary to s 86(2)(b) of the Crimes Act 1900 (NSW). The applicant pleaded guilty in the Local Court and was committed for sentence to the District Court, where the sentencing judge, after recording the conviction, sentenced the applicant to a term of imprisonment of 5 years 6 months, inclusive of a non-parole period of 2 years 10 months, to date from 11 September 2022.

6. The victim in the offence was the ex-wife of the applicant. They had been married in China in 1975 and divorced about nine years prior to the commission of the offence. They were both 73 years of age and lived next door to each other in an apartment in Gordon at the time of the offence.

7. On 10 September 2022, at night, the applicant, after consuming a bottle of Chinese wine during the day, knocked on the victim’s door with mooncakes and armed with an 84 cm long and 3 cm wide solid wooden stick. The victim allowed him to enter the apartment, and the applicant proceeded to strike her with a stick and with his fists. The applicant struck the victim to her face and body.

8. The applicant disconnected the victim’s landline by pulling it out of the wall, took her mobile phone, tied her feet together, covered her with a blanket and left her there. The victim escaped about 3-4 hours later, after she had been able to free herself sufficiently to plug her landline back into the wall and to call an ambulance. The victim was taken to the hospital where her injuries were assessed as: significant swelling and bruising to the face, neck and eyelids; bruising to both arms, hands and upper back; a 3 cm forehead laceration, requiring three sutures; and a falcate subdural haematoma (a curved bruise or accumulation of blood in the subdural space, the outermost and most fibrous membrane surrounding the brain).

Submissions of the Applicant

9. The applicant provided the Court with a schedule of cases in which sentences were imposed on appeal for similar offences committed within a domestic violence context in the last five years. The applicant submitted that each of the circumstances relating to those sentences was more serious than those that applied to the applicant or were committed by offenders with a significantly more serious prior criminal history.

10. The applicant concedes that manifest excess is not established simply by comparison to sentences imposed in other cases but submitted that taking into account the applicant’s age, his plea of guilty, his criminality and subjective circumstances, the cases demonstrate the existence of an inconsistency in the application of sentencing principles. Essentially, the applicant relies on the manifest nature of the unreasonableness of the sentence imposed and/or that it is plainly unjust.

Submissions of the Crown

11. The Crown relies upon the principles relating to the circumstances in which a court on appeal will intervene in a sentence imposed in a court below and the necessity to show that the sentence imposed was outside the range available and, in that sense, “unreasonable” or “plainly unjust”. There is, as the Crown correctly points out, no single correct sentence, and the process is not mathematical.

12. The Crown submitted that the sentence was within the range appropriate to the seriousness of the offending. The sentence imposed reflected, on the submission of the Crown, an appropriate balance between the objective seriousness of the offending and the subjective features of the applicant. The applicant lacked insight into the offending and, therefore, there was an attendant risk of reoffending. The applicant’s previous head injury was not shown to be causative of the offending. Nor was there a psychological condition which was said to be causative. The Crown relied upon what it described as a “generous adjustment” to the non-parole period for special circumstances, including hardship in custody.

13. As admitted by the applicant, the Crown referred to the cases upon which the applicant relied and submitted that they failed to disclose that the sentence imposed falls outside the range of sentences appropriate to this offending. According to the Crown’s submission, the sentence is neither “unreasonable” nor “plainly unjust”.

Consideration

14. The learned sentencing judge assessed the objective seriousness of the offence as “at the top end of the mid-range of seriousness”, considering both the ferocity of the attack and the use of a weapon, and that the applicant bound the victim’s legs in order to detain her. Her Honour also took into account the nature and extent of the injuries inflicted and the fact that the applicant left the victim in a particularly vulnerable state without recourse to a phone or any means by which the victim could contact and obtain assistance.

15. The applicant gave evidence at the sentencing hearing and referred to an incident in which he was beaten and lost consciousness. The lack of consciousness lasted for over two weeks and the applicant was in rehabilitation for over six months. The applicant continued to suffer from headaches, and his memory was deficient to the extent that he sometimes could not remember his own name.

16. The sentencing judge had before her a report of Mr Anthony Diment, consultant psychologist. The report is dated 14 September 2023. The interview by the psychologist was over an audiovisual link to the gaol. The psychologist suggested that there was no evidence of severe psychopathology and that his cognitive systems, even though not assessed, were relatively intact. During the interview, the applicant was generally even in mood but was visibly agitated at times. The applicant reported symptoms of anxiety and depression and that he was “scared being in gaol”.

17. The applicant does not take drugs and does not consume alcohol. The psychologist performed a formal psychological assessment and concluded that the applicant was at a marked risk of experiencing clinical and behavioural problems because he disclosed negative affect, social withdrawal, alienation and health problems. Further, he is at a moderate risk in terms of acting out and psychotic features. On the other hand, he is at a normal risk in terms of suicidal thinking and mild risk in relation to anger control, hostile control, and problems with alcohol.

18. The psychologist concluded that the applicant was above average for clinical anxiety and depression. The applicant did not reveal any major antisocial personality or criminal eugenic traits. The applicant, in accordance with the criteria in DSM-5, was thought to suffer from Persistent Depressive Disorder with Anxiety (Chronic Depression).

19. The psychologist referred to the exacerbating and disinhibiting feature of alcohol, which was relevant at the time of the applicant’s offending and noted that, even without the stated effects of alcohol, both anxiety and depression “can significantly impair an individual’s thought processes and normal decision-making especially in times of perceived emotional distress as existed for [the applicant] at the time he was involved in these offences and this provides a nexus in relation to his behaviour at the time.” [1]

    1. Report of Mr A Diment, 14 September 2023, p 6-7; Appeal Book p 106-107.

20. Further, the psychologist’s report expresses the view that the applicant required “more regular on-going monitoring both (sic) medically…, psychiatrically and psychologically.” The psychologist proposed a treatment plan, which it is unnecessary to recite or summarise.

21. The principles applicable to intervention by the Court in a sentence imposed upon an offender are well-known but should be recited. In order to intervene on appeal from a sentence imposed by a sentencing judge, there has to be disclosed identifiable error involving the sentencing judge acting upon a wrong principle, allowing extraneous or irrelevant matters to guide or affect the sentence imposed, mistaking facts, or not taking into account some material consideration. [2]

    2. House v The King (1936) 55 CLR 499 at 505.

22. If identifiable error is not disclosed, then the Court may still intervene in circumstances where the result of the exercise of the sentencing discretion, taking into account the facts before the Court, is unreasonable or plainly unjust. In the latter situation, even though the error may not be identified, the plainly unjust or unreasonable result implies that there has been a failure properly to exercise the discretion reposed in the sentencing judge. [3]

    3. Ibid.

23. The foregoing classic statement of principle has been applied invariably and expanded upon from time to time. [4] Ultimately, the issue before the Court is whether the sentence imposed is indicative of manifest error in that it is “plainly unjust” or “unreasonable”.

    4. Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221.

24. The applicant has significant subjective circumstances relevant to the sentencing exercise. Not all of the subjective circumstances pertinent to the applicant were ameliorating. At least initially, and to some extent thereafter, the applicant did not display a level of insight that one would hope would be present in a person of such advanced age. The applicant was 73 at the time of the offending and 75 at the time that the sentence was imposed. He had no criminal record and was not otherwise known to the police or law enforcement authorities.

25. Further, there was no known offending in China. There were no earlier complaints of domestic violence.

26. Domestic violence is a particularly pernicious and serious class of offending. It invariably involves a vulnerable victim and repeat offending. Further, given the incidence of domestic violence, it requires, ordinarily, significant attention to general deterrence.

27. It is necessary to point out that the purpose of sentencing is prescribed by s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The provision reflects the common law and expands upon it. The purposes prescribed by the Act, and by the common law, often, if not always, point in different directions, but each is a guideline to the fixing of an appropriate sentence. Those purposes include “the protection of society, the deterrence of the offender and of others who might be tempted to offend, retribution and reform.” [5]

    5. Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.

28. In her remarks, the learned sentencing judge referred to the psychologist’s report but was not satisfied that there was any “real evidence” of the existence of the depression and anxiety at the time of the offending. Her Honour was not satisfied that there was a causal link between the depression and anxiety or the traumatic brain injury and the offending such as to reduce moral culpability.

29. Instead, her Honour took into account the traumatic brain injury “as part of the general mix of matters affecting [the applicant’s] health, particularly when considering the diabetes and other health issues that the [applicant] has referred to, including the self-diagnosed bleeding from the bowel.”

30. The learned sentencing judge is an experienced criminal practitioner. Yet the foregoing statement of the manner in which the learned sentencing judge took into account the brain injury and diagnosed psychological impairments does not give full effect to the principles that are established in that regard.

31. The Court summarised the principles to be applied when sentencing an offender who is suffering from a mental illness, intellectual handicap or other mental problem. While not exhaustive or exclusive, the Court said:

“Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28].

It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28]. It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].” [6]

6. Director of Public Prosecutions (Commonwealth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (McClellan CJ at CL, with whom Allsop P, Basten JA, Simpson J and Barr AJ agreed).

32. The foregoing principles are not exhaustive. The advanced age of the applicant, both at the time of the offence and at the time of sentencing, together with the traumatic brain injury and significant psychological conditions, rendered the applicant an inappropriate vehicle for general deterrence, notwithstanding the seriousness of domestic violence and the need, ordinarily, for general deterrence to loom large.

33. Further, the custodial sentence will inevitably weigh more heavily on the applicant, which affects the length of the prison term that is appropriate to be served. Further again, the condition suffered by the applicant reduces the significance of specific deterrence, although it plays some role in the current circumstances. Lastly, given the absence of any previous criminal record and in the absence of any complaint about prior domestic violence perpetrated by the applicant, it cannot be said that the mental conditions of the applicant present more of a danger to the community and require, as a consequence, condign punishment in order to protect the community.

34. Over and above the foregoing, the applicant is entitled to the leniency associated with a first-time offender who is necessarily spending his first time in prison. For those reasons and given the comparisons that have been provided by the applicant or on his behalf, I was satisfied that manifest error had been disclosed and that the sentence imposed upon the applicant was both “plainly unjust” and “unreasonable”.

35. It is for the above reasons that I joined in the orders made on 23 October 2024.

36. YEHIA J: The reasons for judgment of Rothman J accord with my own reasons for joining in the orders made on 23 October 2024.

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Endnotes

Decision last updated: 20 December 2024