Sun v R

[2011] NSWCCA 99

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

SUN, Yee Sing v Regina [2011] NSWCCA 99

Hearing dates:

15 April 2011

Decision date:

28 April 2011

Before:

Campbell JA at [1], RS Hulme J at [52], Adams J at [53]

Decision:

1.Grant leave to appeal.

2.Allow the appeal.

3.Set aside the sentence imposed on the Applicant in the court below.

4.In lieu thereof, order that he be sentenced to a non-parole period commencing 11 August 2008 and expiring 25 February 2011, with a balance of term expiring 11 November 2012.

Catchwords:

CRIMINAL LAW - sentencing - appeal against sentence - s 61K(b) Crimes Act 1900 - threaten to inflict actual bodily harm with intent to have sexual intercourse - incorrect finding that applicant had not expressed remorse - weight to be placed on offender's unverified statement of remorse - objective seriousness of offence - effect of offender having unusual and irrational motive - effect of court not being satisfied there was an intention to inflict actual bodily harm

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Summary Offences Act 1988

Cases Cited:

Alvares v R [2011] NSWCCA 33
Baxter v The Queen [2007] NSWCCA 237; (2007) 173 A Crim R 284
O'Donnell v Regina (Court of Criminal Appeal, 12 May 1997, unreported)
Pfitzner v R [2010] NSWCCA 314
R v Butters [2010] NSWCCA 1
R v Capar [2002] NSWCCA 285; (2002) 132 A Crim R 160
R v Elfar [2003] NSWCCA 358
R v McGourty [2002] NSWCCA 335
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v Storey [1998] 1 VR 359
R v Tsokos (Court of Criminal Appeal, 19 June 1995, unreported) (incorrectly cited as [1995] NSWCA 388)
TS v R [2007] NSWCCA 194
Webster v Regina [2006] NSWCCA 346

Category:

Principal judgment

Parties:

Yee Sing SUN (Applicant)
The Crown (Respondent)

Representation:

Counsel:
C Loukas (Applicant)
S Dowling (The Crown)
Solicitors:
Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions (The Crown)

File Number(s):

2009/4880

 Decision under appeal 

Date of Decision:

2010-04-16 00:00:00

Before:

Sorby DCJ

File Number(s):

2009/4880

Judgment

1. The Applicant pleaded guilty to a charge that on a date in August 2008 at Killara he, with intent to have sexual intercourse with a person who I shall refer to as DE, threatened to inflict actual bodily harm on her by means of an offensive weapon, being a knife. That charge arises under s 61K Crimes Act 1900. The penalty that s 61K prescribes for it is imprisonment for 20 years. No standard non-parole period is prescribed concerning it.

1. The Applicant asks to have taken into account, on a Form 1, a charge that on the same day in August 2008 at Killara he, without reasonable excuse, had in his custody a box cutter knife in a public place, namely Killara railway station. That offence arises under s 11C(1) Summary Offences Act 1988. At the time of the offence, that section imposed different penalties depending on whether the person charged had not been dealt with previously for a knife-related offence; had been dealt with previously once; or had been dealt with previously more than once. In circumstances where the Applicant had not been previously dealt with for a knife-related offence, the penalty was 5 penalty units. Applying the formula in s 17 Crimes (Sentencing Procedure) Act 1999, that works out as a penalty of $550.

1. The Applicant was arrested and charged on the day of the offence. He was refused bail and was continually in custody until the date that the sentencing hearing concluded in the District Court, 16 April 2010. On that date, his Honour Judge Sorby imposed a penalty, taking into account the charge on Form 1, of imprisonment for 6 years commencing on the date of his arrest, with a non-parole period of 4 years from the date of his arrest. As explained below, the sentencing hearing started on 29 June 2009, was adjourned, and did not resume until 16 April 2010.

1. The Applicant seeks leave to appeal against the sentence, on two grounds, namely:

"1. His Honour erred in his finding that the applicant did not express any remorse in his offending.

2. The sentence imposed is manifestly excessive."

1. The Applicant had no previous convictions, either in New South Wales or overseas.

Circumstances of the Offence

1. DE was, at the time of the offence, a 24-year-old nursing assistant. Around 10:50 pm on the night of the offence she arrived by train at the Killara railway station, on her way to commence work at 11:00 pm at a nearby nursing home in Greengate Road, Killara. From the railway station she walked in a northerly direction along Culworth Avenue, which runs parallel to the railway line. Culworth Avenue, going in that direction, terminates at a cross street, Powell Street. Greengate Road runs parallel to Powell Street, and one street to its north. A pedestrian pathway too narrow for cars runs parallel to the railway line, connecting Powell Street and Greengate Road. The Applicant followed her along Culworth Avenue, for 200 or 300 metres. DE's account of the events, the correctness of which the Applicant accepted, continued:

"I then walked off the road way and onto the footpath. The Chinese male followed me onto the footpath. He said, 'How are you?' I tried to ignore him but he kept asking how I was, I said, 'Yeah okay'. He said 'You are very beautiful, you are very sexy, I want you to come with me and I will pay you $2,000'. I said, 'I don't want to go anywhere, I am going back to my home, don't follow me, let me go'. He said, 'It's okay, don't be angry or like that, I am just trying to help you, come I will pay you $2,000, it's not a small amount, it's a good amount'.

The Chinese male tried to touch me by putting his left arm around me. I pushed his arm away with my right arm. The Chinese male said 'I got big steak, if you want to feel I can show you'. The Chinese male said, 'You are very beautiful, you have good figure'. I said, 'Yeah, I know, you don't need to tell me, don't follow me, let me go home'. The Chinese male said, 'Do you got boyfriend?' I said, 'Yeah, if you want to meet him he is waiting for me at the corner'. The Chinese male said 'Why are you getting scared, I will pay you, I will pay you'. The Chinese male kept trying to put his arm around me and I kept pushing it away. I said, 'Let's go to my place, it does not look good on the street'. I said this because I was scared the Chinese male was going to attack me and rape me.

I walked along Culworth Street to the corner of Powell Street. I crossed Powell Street and began walking up the alleyway to the Greengate Road. We walked about 20 to 30 metres in silence. The Chinese male again tried to halt me by walking in front of me and holding out two hands in front of me. I stopped walking. The Chinese male grabbed my right shoulder by the bag strap and my scarf with his left hand. I saw him reach into the front left side of his coat jacket pocket, I saw him take out a black handled knife with a silver coloured blade that was about 25 centimetres long. The male put his arm around me and put the knife to my throat from behind me as he was holding me. As he was doing this he was holding the knife with his right hand to my throat and he had his left hand on my left breast and was pressing my breast with an open hand for a few seconds. I kicked him in the leg at this time because he was touching my breast and he stopped touching my breast when I kicked him.

The Chinese male said 'I will kill you, I will kill you'. I grabbed hold of the blade of the knife with my right hand to stop the blade getting into my neck. I then grabbed the knife with both hands to stop him. I said 'Kill me, I'll do it myself'. He said, 'Leave the knife, you are very confident'. I was very scared at this time, I was fearful that he might try to kill me but I thought that he might not be able to do so because he did not seem very confident. I was scared that I might get hurt because he was holding a knife to my throat. I pushed the knife away from my throat and hit the male with my bag and kicked him with my feet in his leg, I then ran down the lane towards Greengate Road. I yelled out 'help me, help save me', over and over. I could hear dogs barking as I ran.

I got to the corner of the alley at Greengate Road and the Chinese male stopped following me. I turned left into Greengate Road and ran to Killara Gardens Nursing Home. I looked back once or twice to see if he was following me, but he was not there".

1. On arrival at the nursing home she immediately spoke to the nurse in charge, who called the police.

1. There was no victim impact statement, or other evidence of the incident having had an ongoing effect on DE. The statement of the nurse in charge at the nursing home makes clear that, immediately after the incident, DE was upset and scared, with her voice shaking:

"She was trembling as I held her and she became very hot and took off three layers of clothing. I touched [DE's] hand and felt that her skin was cold and clammy. As a nurse this meant that she was going into the onset of shock as her body temperature was rising and the other signs that I had noticed."

1. The Applicant evidently returned to Killara railway station, as he was found by a police officer sitting in a bus shelter just outside the station at about 11:30 pm. He was then arrested. Upon being searched, he was found to have in his possession not only the knife that had been used in the attack, but also the box cutter that was the subject of the Form 1 charge.

1. In a police interview to which he consented the following day he said he did not have any money with him. He also said that the box cutter was one that he always carried with him, because he worked in a supermarket and used it to open boxes.

The Applicant

1. Evidence before the judge showed that he came to Australia from Hong Kong in 2006 and supported himself by working in two jobs, one of them as a waiter at a restaurant in Chatswood. He lived alone at Chatswood. On the night of the offence he had walked from Chatswood to Killara.

1. At the first of the sentencing hearings, the evidence before the judge included a report from Alex Sevitt and Norman Rees, psychologists. They reported on some psychological tests that they had carried out on the Applicant. They included a finding that the Applicant had "a level of fluid intelligence in the High Average Range (86 th percentile for age)" and that on a mental arithmetic subtest of an adult intelligence scale he had performed in the High Average Range (84 th percentile for age). Their report included:

"His emotional functioning both currently and at the time of the offence needs more thorough assessment and this was not possible in the brief time available with him. Initial impression is that he was suffering from thought disorder and delusions at the time of the offences, and was irrationally attempting to shame his parents for what he perceived as their poor treatment of him."

1. They also expressed the view that the Applicant displayed features of "thought disorder" , that he "appears to have been motivated by an irrational need to punish his parents" and also that "his state of mind at the time of the offence seems to be either dominated by obsessive ruminations or possibly delusional thinking" .

1. The judge was troubled about the lack of psychiatric evidence, particularly in light of the failure of the Applicant to flee. In consequence, the sentencing hearing was adjourned to enable a psychiatric report to be obtained. By the time of the adjourned hearing, a report of Dr Peter Klug, forensic psychiatrist, was available.

1. Dr Klug concluded:

"In summary, there is no known prior forensic history and no prior appearance before the courts. There is no history of prior violence or aggression. There is no clear history that he suffers from a severe personality dysfunction, nor does he suffer from a psychiatric illness. His behaviour is a grossly maladaptive response to a psychosocial crisis in the context of a long-standing sense of being devalued by his immediate family. He was able to empathise with the victim but, however, did not express any spontaneous remorse."

1. He specifically disagreed with the views that Mr Sevitt and Mr Rees had expressed, which I have set out at [13] above. Dr Klug's own view was:

"The thinking that Mr Sun described as leading to the act of violence was, in my view, logical but nevertheless grossly unacceptable. There is no indication that he suffers from a formal thought disorder. There is no indication that he suffers from psychotic phenomena such as delusions, perceptual disturbances or even pre-psychotic phenomena such as over-valued ideas or a delusional mood."

The Remarks on Sentence

1. The judge said, concerning objective seriousness:

"These matters are objectively serious. A knife was held to the throat of [DE] and the offender threatened to kill her. The offender did not know [DE], she was a random victim. [DE] was a person going about her everyday business, on this occasion going to work and was entitled to do so in safety. She was alone and vulnerable. It was late in the evening. Both specific and general deterrence are important in this sentencing exercise. [DE] was put in fear for her life and a violation of her body. In my opinion this offence falls into the mid-range of objective seriousness for such offences."

1. The judge made the following findings about the personal history of the Applicant:

"The offender was born in Shanghai [in August 1986]. His parents separated when he was very young and he was brought primarily by his grandmother until he was about seventeen years of age. He attended high school in Hong Kong leaving before completing his final qualifications. He did not attend the English classes at TAFE in Australia but wanted to attend Macquarie University and, according to a Probation and Parole Service report, his mother's unwillingness to pay for this tertiary preparation course caused considerable friction and resentment. The Probation and Parole report records at p 2:

'Mr Sun claimed that his reason for his offending was to upset his mother who had initially promised to pay for a tertiary preparation course at Macquarie University. He indicated that she later reneged on her offer and claimed that since she was a wealthy woman, he became upset and resentful. He indicated that he decided to commit an act which would result in his being imprisoned and consequently make his mother 'lose face' to her friends and family. Whilst it is difficult to confidently assess Mr Sun's underlying issues in his offending behaviour, it is noted that he appears to harbour significant resentment against his mother for reportedly not providing him with the necessary money that he considered himself entitled to.'

This history was supported by that obtained by both the psychologist and the psychiatrist to which I have referred. This history may help to explain his actions but in no way can it justify what he did."

The judge set out Dr Klug's findings extensively, including those I have set out at [15] and [16] above. The judge preferred the view of Dr Klug to that Mr Sevitt and Mr Rees.

1. Apart from remorse, which I deal with below, other subjective matters that the judge mentioned were that the Applicant had no criminal antecedents, that this would be his first experience of prison, and that there was a limited likelihood that he would re-offend. He said that Dr Klug had noted that the Applicant's English skills had been improved whilst in prison and should be developed. He noted a view of Dr Klug:

"Arrangements also should be made for his education to continue in order for him to have work options on release. Assisting him in sublimating his anger into constructive activities that give rise to a financial and personal independence would be wise."

The judge found that the need for rehabilitation was a special circumstance.

Ground 1

1. The totality of the judge's remarks bearing on the topic of remorse was:

"The offender did not give evidence or express any remorse for his offending. The Probation and Parole Service report also states at page 2:

'Mr Sun indicated that he has realised the potential damage which he may have caused to the psychological wellbeing of the victim. He has also realised the significant consequences of his actions upon himself.'

Dr Klug says at p 7:

'Mr Sun expressed a sense that what the victim had experienced was 'unfair' to her. This might be described as regret but he did not appear to express spontaneous remorse. In a self-referential way, however, he expressed clear regret that he is [to] suffer long term punishment for an act which occurred 'in the split second'."

1. The report of Dr Klug contains another passage, which I have not previously mentioned, but that the judge quoted as part of a lengthy quotation from the report:

"He did not spontaneously express remorse but on inquiring about how he felt he expressed regret in the sense of describing his sense of fairness to the victim. He did not express any deep denigratory remarks about the victim or about women in general".

1. The judge also noted that the offender did not plead until the day of his trial. The judge gave him a 15% discount for the plea's utilitarian value.

1. Section 21A(3)(i) Crimes (Sentencing Procedure) Act lists as a mitigating factor:

"the remorse shown by the offender for the offence, but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)"

1. The onus of establishing remorse as a mitigating factor lies with the Appellant, on the balance of probabilities. That follows from the general proposition accepted by Gleeson CJ, Gaudron, Hayne and Callinan JJ in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27], approving the statement of Winneke P, Booking and Hayne JJA and Southwell AJA in R v Storey [1998] 1 VR 359 at 369 that a sentencing judge:

"may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."

1. In R v Butters [2010] NSWCCA 1 Fullerton J (with whom McClellan CJ at CL and McCallum J agreed) said, at [16]-[17]:

"The applicant submitted, and correctly, that the prosecutor misstated the law when he submitted that s 21A(3)(i) of the Crimes (Sentencing Procedure) Act requires an offender who is claiming the benefit of remorse in mitigation of sentence to give evidence in the sentence proceedings, and that in the absence of such evidence little weight ought attach to out of court statements of remorse by the offender. Contrary to the prosecutor's submission there is no statutory requirement that an offender give evidence before remorse can be taken into account in the calculation of sentence. Furthermore, the prosecutor's reliance on R v Thomas [2007] NSWCCA 269 as authority for the proposition he advanced was in error.

On a proper construction, s 21A(3)(i) requires an offender to provide evidence that he or she has accepted responsibility for his or her actions and has acknowledged any injury, loss or damage caused by his or her actions or any reparation for such injury, loss or damage (or both), as a statutory precondition to any reliance on remorse as a mitigating factor. The requirement to provide evidence before remorse can be relied upon does not equate with a requirement that an offender give evidence either of remorse generally or of the matters set out in the section. This much is clear from Thomas at [18]-[19] per Basten JA."

1. One of the matters before the judge was the original of a letter that the Applicant had written to the Court, in Mandarin, and an English translation of that letter. It is a lengthy account (about 7 closely-typed pages in translation) of the Applicant's life, and of the numerous wrongs he feels his parents have done him. It tells how his cousins have been nurtured and encouraged and are all well educated, are doing well, "and they are likely to have a beautiful future" while he has been deprived of education through his parents' neglect and is working in a restaurant. It tells how his mother, despite an initial promise to do so, has failed to provide money to enable him to go to university. His account is that the incident occurred on the eve of his 22 nd birthday, that he had spent the day brooding over the neglect and bad treatment to which he had been subjected, and that he set out to commit a crime, so that he could prove to his mother that her failure to provide love and nurture only entitled her to have in him "a shrivelled weed, a piece of rubbish" . The statement continued:

"So, let me give you a piece of rubbish to wake you up. What constitutes trash? Being a criminal is more than adequate."

1. He says that he took the knife, intending to scare someone, that the incident with DE "was not in my plan" , that he started to follow her "[b]linded by hatred" (for his mother) and that after his encounter with DE he "sat in the booth waiting for the police to arrest me" . He explained that, since he has been in gaol, his hatred "gradually is no longer significant" . His statement continues:

"Further, what occurs in my mind is the debt I owed to so many good relationships.

I don't know how to face my workmates, my friends. When my lady boss and my workmate from the restaurant came to visit me, I was truly regretful. I ruined everything I have. All the precious human relationships I formed are being ruined by my stupidity of the time. I was so stupid, I was so irrational! So I told them not to visit me any more. I am not worth it. From that time onwards I refused all visits. This refusal naturally included visits from my mother. I truly do not know how to face her.

I cannot face the paternal grandmother who cared for me since I was two months old. She gave me the warmth, the only love from this broken family. Previously, she wanted me to ring her once a week. Sometimes I was too lazy to ring. Now how I wish I could telephone her several times a week. I don't know whether she can still forgive me, the grandson whom she spent 17 years to raise, have become a criminal.

I am truly sorry and I owe an apology to that girl. She is so innocent. But because of my foolish and stupid behaviour, her heart would have a shadow cast over it. If it is possible, I would really like to do something for her, I am willing to do whatever [she asks]. If only I can reduce the hurt in her heart, I very much wish she can smack me severely. I want very much to apologise to her directly, in person. To say sorry, I really want to. I had dreamed that she was crying and came over and tried to use both her hands on my neck to choke me. Her eyes were full of hatred and resentment. I truly am scared to look at her eyes. I woke up with fear. But I really want to be killed by her this way. I truly wish that.

I am guilty. I should accept all the responsibility for my crime under the law."

1. The report of Mr Sevitt and Mr Rees says, under the heading "level of contrition" .

"His statement translated from Mandarin contains a clear statement of regret over his behaviour to the victim. He accepts his guilt and recognises that his actions require him to accept responsibility."

1. The judge made no reference to the Applicant's letter, nor to the passage just quoted from the report of Mr Sevitt and Mr Rees. While Mr Sevitt and Mr Rees had the opportunity of interviewing the Applicant for about an hour and a half, I would not conclude that it is more likely than not that the final sentence that I quoted from their report concerns a separate acceptance of guilt to that which is contained in the Applicant's letter.

1. The judge was wrong in saying that the Applicant did not express any remorse for his offending. The Applicant expressed remorse to the Probation and Parole Service, to Dr Klug, and in his letter.

1. There is ample authority that the sentencing judge can be cautious about the weight that he or she places upon an offender's unverified statement of remorse when no direct evidence of remorse is placed before the court. Caution is appropriate whether the statement is made to a psychiatrist or psychologist (eg R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 per Smart AJ at [58]-[59], Spigelman CJ at [79]; R v McGourty [2002] NSWCCA 335 at [24]-[25] per Wood CJ at CL), to an officer preparing a presentence report ( R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at [40]-[41] per Howie J (Levine and Hidden JJ agreeing), TS v R [2007] NSWCCA 194 at [30] per Giles JA (James and Hislop JJ agreeing)), or in a letter from the offender to the sentencing judge ( R v Elfar [2003] NSWCCA 358 at [25] per Whealy J (Ipp JA and Davidson AJ agreeing)). As McClelland CJ at CL pointed out in Pfitzner v R [2010] NSWCCA 314 at [33] such out-of-court statements are made in circumstances where they are unlikely to be challenged, and when an offender does not give viva voce evidence the judge does not have the assistance of demeanour in evaluating the correctness of asserted remorse. Further, as Buddin J (McClelland CJ at CL and Schmidt J agreeing) said in Alvares v R [2011] NSWCCA 33 at [65]:

"... a sentencing judge is not bound to accept assertions by an offender that he is remorseful, even when that assertion is made in the witness box: R v Stafrace (1997) 96 A Crim R 452. Nor will what Simpson J described, in Pham v R [2010] NSWCCA 208 [at para 33], as "the often ritual incantation of remorse and contrition" be automatically accepted by a sentencing judge."

1. Concerning the Applicant's expression of remorse to Dr Klug, the Crown submits " Dr Klug expressed reservations about its spontaneity, and it may be inferred, its sincerity . " I would not be prepared to infer that Dr Klug expressed reservations about the sincerity of his remorse. Rather, Dr Klug was simply reporting that the Applicant did not express any spontaneous remorse. I would not be prepared to draw any inferences about why a young Chinese man, being interviewed by an Australian doctor through an interpreter, did not volunteer information on that topic.

1. The Crown submits that the judge's remark about the Applicant not expressing any remorse for his offending should be understood as his Honour saying that there was insufficient evidence to persuade him to the requisite standard that a finding of remorse should be made. I do not accept that submission. That is simply not what the judge said. In my view, the judge approached the sentencing on the basis that the Applicant did not express any remorse to his offending, and that thereby he approached it on a wrong factual basis.

1. This error on the part of the judge requires the Court to consider for itself, consistently with s 6(3) Criminal Appeal Act 1912 whether:

"...it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed ...."

1. In Baxter v The Queen [2007] NSWCCA 237; (2007) 173 A Crim R 284 at [6], Spigelman CJ drew attention to the confusion of tenses that this statutory provision contains - the present tense of "is warranted in law" and the past tense of "should have been passed" . The Court (Spigelman CJ at [7]-[10]; Kirby J at [61]-[62]; Latham J at [82] agreeing with both) reaffirmed the Court's practice of receiving evidence of post-sentence conduct for the purpose of determining whether a sentence should be substituted under s 6(3).

1. An affidavit of the Applicant was read on the appeal. He reports that he has taken various courses in gaol, and that he can now speak basic English, and can understand the news on television. He reports only one very minor disciplinary incident in gaol. He says:

"8. I have regular contact with my mother. I telephone her a few times each week. She has visited me about every 6 weeks up until recently when she has travelled overseas to attend to family matters. She is now supportive of my desire to go to university.

9. When I am released, I hope to attend university to study an information technology course. I also intend to get a job in either the hospitability or metal sheet industries. I have previously worked in restaurants. My mother has said to me that she intends to buy a coffee shop business with my aunt and grandmother and that I can work in that business.

10. I so very much regret the offence that I committed. I feel very sorry for that young woman and I am very sorry that I harmed her. I have also brought a lot of trouble to my family and I am very sorry for this."

1. He was not cross-examined on that affidavit. Being made on affidavit, and where there is no reason (such as death or sickness of the deponent) why cross examination of the deponent was not possible, there is not the same need for caution in accepting the Applicant's statement of remorse as there would have been on the evidence as it stood at the trial, had the judge turned his mind to that question. The expression of remorse in the final paragraph of the affidavit is consistent with the Applicant's expressions of remorse to other people and on other occasions, there is no evidence that suggests he has not come to suffer remorse, and there is nothing inherently incredible in his statement. In those circumstances, this court should approach the task under s 6(3) on the basis that the Applicant has expressed remorse. Further, the prerequisites that s 21A(3)(i) imposes on taking remorse into account as a mitigating factor have been satisfied.

1. In my view, a lesser sentence than that imposed by the judge should have been imposed.

1. The Court was given references to four other cases where this Court had considered sentences for an offence against s 61K Crimes Act ( R v Tsokos (Court of Criminal Appeal, 19 June 1995, unreported) (which can be found on the NSW Caselaw website with the incorrect medium neutral citation [1995] NSWCA 388), O'Donnell v Regina (Court of Criminal Appeal, 12 May 1997, unreported); R v Capar [2002] NSWCCA 285; (2002) 132 A Crim R 160 and Webster v Regina [2006] NSWCCA 346). The circumstances of those offences are all too dissimilar to the present to provide any real assistance. Hence it is necessary to approach the matter from first principles.

1. Section 3A Crimes (Sentencing Procedure) Act identifies the purposes of criminal sentencing:

"(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

1. The Applicant's action, of threatening a woman on her own, at night, and the threat being to kill, not merely to hurt, are in themselves serious. They involved holding a knife to DE's throat and physically holding her, including by touching her breast.

1. The Applicant's plea to the charge involves an acceptance that he intended to have sexual intercourse with DE, and that he threatened to harm her with a knife. It does not involve an acceptance that his intention was to carry through with his threat. DE was, according to the evidence of the nurse in charge at the nursing home, of small build, and 5'2" tall. The Applicant was described as being 5'8" to 5'10" tall, and of medium build. Given that the Applicant had his arm around her from behind and put the knife to her throat, that she was able to free herself by kicking him, grabbing the knife, pushing it away from her, hitting him with her bag and kicking him again, is not suggestive of a very determined attack. The same can be said for his failure to follow her once she had freed herself. That, notwithstanding that she seized the blade of the knife, she was not cut by it, in itself casts doubt on whether he actually intended to inflict bodily harm on her. I am not satisfied he had such an intention, and his sentence should reflect that.

1. The police interview on the night of the offence included:

"Her hands were, her hands her hands was actually on the knife so I, I, I was afraid that she might have got hurt. So I said, OK, I'm going home. I was afraid that she might get, might get injured by grabbing the knife, so I was a bit concerned."

1. By itself that is of negligible weight, but it provides a small amount of extra confirmation for the inference.

1. The seriousness of the action that the Applicant engaged in is such that nothing but imprisonment is an appropriate sentence. The seriousness of the action can be reflected in purposes (a), (e) and (f). To the extent to which it was harmful to the victim to be placed in a seriously frightening situation even though she has suffered no ongoing consequences, and it is harmful to the community if a woman has reason to feel she might not be safe walking alone in a suburban street at night, punishment that recognises the seriousness of the action also advances purpose (g).

1. In the present case, the good record of the Applicant and his highly unusual motivation for committing the crime suggest that there is little scope for specific deterrence and protection of the community to play a role in the sentence. Further, there is a substantially reduced role for general deterrence to play. Even though the Applicant does not suffer from any psychiatric malady his action on the night in question was most unusual, and grossly irrational. His plea to the charge necessarily involves an admission that his threat to DE was made with intent to have sexual intercourse with her. However this case is far removed from the more familiar case of an offender who inflicts or threatens to inflict harm with the principal or sole motivation of satisfying his own sexual desires, or with the principal or sole motivation of inflicting sexual relations on the victim as revenge, or to establish power over her. The gross irrationality of the Applicant's offence and the highly unusual nature of his motivation seriously reduce the scope of any sentence imposed on him to act as an object example or warning to others who might be minded to commit a crime against s 61K.

1. There is scope for a sentence to promote the rehabilitation of the offender, in the respects that Dr Klug identified, and the sentencing judge accepted. As the sentencing judge accepted, sentencing should be carried out on the basis that the need for rehabilitation is a special circumstance justifying a balance of term that exceeds one third of the non-parole period of the sentence. Training for more skilled work than he was doing prior to the offence, and development of his English skills, are very important matters in the rehabilitation of this particular offender. The psychological testing carried out shows that he is of well above average intelligence (in broad terms, in about the top 15% of the population), and his letter to the judge shows that, when writing in Mandarin, he can be powerfully eloquent. His rehabilitation could benefit by having the assistance of the parole services in obtaining access to suitable courses. His remorse is a subjective matter, beyond those taken into account by the judge, which tends to ameliorate the sentence that would otherwise be appropriate. In my view a parole period of 60% of the total term is appropriate.

1. If he had not pleaded, the sentence that should have been imposed would be a non-parole period of three years, with a balance of term of two years. I agree with the extent of the 15% discount that the sentencing judge gave, given the comparative lateness of the plea. Though the plea was only actually made on the morning of the proposed trial, negotiations for it had been actively under way during the preceding week.

1. If a 15% discount is applied to both the non-parole period and the balance of term, and rounding down any fractions of a month to the nearest half-month, the sentence that should have been imposed is a total term of 51 months, of which 30 months is a non-parole period. As the Applicant has been in custody since 11 August 2008, the resulting sentence would be a non-parole period commencing 11 August 2008 and expiring 25 February 2011, with a balance of term expiring 11 November 2012.

1. As I have reached the view that a sentence other than that imposed is warranted in law and should have been imposed, and I propose to re-sentence the Applicant, there is no occasion to consider the second ground of appeal.

1. In these circumstances the orders that I propose are:

1.   Grant leave to appeal.

2.   Allow the appeal.

3.   Set aside the sentence imposed on the Applicant in the court below.

4.   In lieu thereof, order that he be sentenced to a non-parole period commencing 11 August 2008 and expiring 25 February 2011, with a balance of term expiring 11 November 2012.

1. RS HULME J : I agree with Campbell JA.

1. ADAMS J : I agree with Campbell JA.

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Decision last updated: 28 April 2011