Wang v R

Case [2021] NSWCCA 282 1 December 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Wang v R [2021] NSWCCA 282
Hearing dates: 1 November 2021
Decision date: 01 December 2021
Before: Meagher JA at [1];
R A Hulme J at [2];
Davies J at [123]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal against sentence dismissed.

Catchwords:
CRIME – sentence appeal – murder – domestic violence –ex-partner fell from fifth floor balcony when fleeing fight – subsequent stabbing caused death – intention to kill – premeditation – applicant suffered Major Depressive Disorder with melancholic features at time of murder - guilty plea
CRIME – sentence appeal – new evidence – expert opinion by forensic psychiatrist obtained after sentence – post-sentence opinion was said to clarify and supplement previous two reports by same expert – opinion contested judge’s finding that applicant’s severe depression merely inhibited her ability to restrain herself from acting on an already formed intention to kill rather than playing a part in initial formation of intention to kill – discretion to admit or reject new evidence on appeal – open to sentencing judge to reject expert opinion in face of clear CCTV footage to contrary – initial two reports sufficiently clear – no reason to admit new report – ground rejected
CRIME – sentence appeal – new evidence – post-sentence expert opinion contesting judge’s finding that applicant’s difficult background did not reduce her moral culpability – applicant asserted a causal link between her background and offending – no causal link asserted by psychiatrist in initial two reports – reformulation of case – tenuous argument – ground rejected
CRIME – sentence appeal – mistake about sentence in a comparable case – starting point was 30 years, not 30 years and 6 months – sentencing judge acknowledged individual sentencing outcomes are not binding – trivial error – no bearing on exercise of sentencing discretion – ground rejected
CRIME – sentence appeal – reasonable consistency of sentence – manifest excess – higher starting point than case with comparable objective severity but less favourable subjective factors – no requirement for numerical equivalence – applicant’s arguments antithetical to instinctive synthesis – ground rejected – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), ss 19A, 23A
Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Newman v R [2019] NSWCCA 157
R v Birks

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Wang v R

Details

AGLC: Wang v R [2021] NSWCCA 282
Case: [2021] NSWCCA 282
Decision Date: 01 December 2021

CaseChat Overview and Summary

Wang, an individual convicted of murder, has appealed the sentence imposed by the sentencing judge. Wang's ex-partner was fatally injured when she fell from a fifth-floor balcony while attempting to flee an altercation. Wang subsequently stabbed her, causing her death. Wang had pleaded guilty to the murder, which occurred while she suffered from Major Depressive Disorder with melancholic features. The appeal centered on several grounds, including the admissibility of new evidence, the effect of Wang's background on her moral culpability, and the correctness of the starting point for the sentence.

The appeal raised several legal issues, including whether new evidence, specifically a post-sentence expert opinion from a forensic psychiatrist, should be considered. This opinion contested the sentencing judge's findings on the role of Wang's severe depression in forming the intent to kill, as well as the impact of Wang's background on her moral culpability. Additionally, the appeal argued that the starting point for the sentence was incorrectly calculated, leading to an unduly harsh sentence.

The court determined that the new expert opinion should not be admitted as it did not significantly differ from the two previous reports by the same expert, and the sentencing judge was justified in rejecting it given the clear CCTV footage. The court also found that the argument regarding Wang's background did not present a causal link supported by the expert's previous reports. Furthermore, the court acknowledged the trivial error in the starting point for the sentence but found it did not impact the exercise of sentencing discretion. The court held that the sentence was consistent with the principles of sentencing and was not manifestly excessive.

The appeal was dismissed, and the original sentence was upheld. The court found that there was no valid basis to alter the sentence imposed by the sentencing judge. The reasoning and outcome reflect the court's adherence to the principles of sentencing and the limited scope for appeals based on post-sentence expert opinions and minor calculation errors.

Orders