Xue v R

[2017] NSWCCA 137

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Xue v R [2017] NSWCCA 137
Hearing dates:	24 May 2017
Date of orders:	21 June 2017
Decision date:	21 June 2017
Before:	Bathurst CJ at [1] Hoeben CJ at CL at [6] McCallum J at [58]
Decision:	Leave to appeal against sentence refused.
Catchwords:	CRIMINAL LAW – sentence appeal – one count of wound with intent to cause grievous bodily harm – domestic violence – husband attacked wife with knife – sentence of imprisonment for 6 years with a non-parole period of 4 years – whether sentence manifestly excessive – findings as to objective seriousness open – failure to establish that sentence was unreasonable or plainly unjust – leave to appeal against sentence refused.
Legislation Cited:	Crimes Act 1900 (NSW) – s 33(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW) – s 3A
Cases Cited:	Adzioski v R [2013] NSWCCA 69 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Graham v Regina [2009] NSWCCA 212 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 House v The King [1936] HCA 40; 55 CLR 499 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mun v R [2015] NSWCCA 234 McGeown v R (2014) 247 A Crim R 206; [2014] NSWCCA 314 Paxton v R [2011] NSWCCA 242; 219 A Crim R 104 R v Wei Zheng Wong [2010] NSWCCA 160 TYN v R (2009) 195 A Crim R 345; [2009] NSWCCA 146 Yang v R [2012] NSWCCA 49
Category:	Principal judgment
Parties:	Xinglong Xue – Applicant Regina – Respondent Crown
Representation:	Counsel: S Kluss – Applicant S Dowling SC – Respondent Crown   Solicitors: Bo Yu Chi – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2014/213755
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 7 July 2016 Before: Buscombe DCJ File Number(s): 2014/213755

Judgment

1. BATHURST CJ: I have had the advantage of reading the judgment of Hoeben CJ at CL in draft. I agree with the orders proposed by his Honour and subject to one qualification, with his Honour’s reasons.

2. Hoeben CJ at CL has stated (at [46]) that in considering whether a sentence is manifestly excessive, approaching the case from a hypothetical start point diverts attention from the proper question, namely, whether the sentence actually imposed was unreasonable. His Honour has referred to Graham v R [2009] NSWCCA 212 at [40] which was followed in Adzioski v R [2013] NSWCCA 69 at [72] and Yang v R [2012] NSWCCA 49 at [63]. Graham was a case where the sentencing judge gave a discount of 50% for a plea and assistance to authorities. In that case Hoeben CJ at CL stated (at [43]), the application of such a generous discount inevitably raises the issue of the extent to which a sentence can be reduced by discounts before it becomes inadequate and concluded (at [45]), that even if the notional starting point was too high, it was clear that the sentence imposed not only fell within the permissible range of sentences but was very much at the bottom of the range once the 50% discount applied.

3. However, as Leeming JA stated in McGeown v R (2014) 247 A Crim R 206; [2014] NSWCCA 314 at [13]-[14], where there is no dispute as to the reduction in sentences to which an offender is entitled, it is necessary to have regard to the starting point lest the discounts be used to conceal and thereby sustain what might otherwise be a manifestly excessive sentence.

4. In my opinion the position was correctly stated by Simpson J (as her Honour then was) in TYN v R (2009) 195 A Crim R 345; [2009] NSWCCA 146 in which her Honour made the following remarks (at [33]-[34]) (Spigelman CJ and James J agreeing):

“[33]   If (as is not challenged) the applicant was entitled to reductions of 25% and 33% attributable to her plea of guilty and her (considerable) assistance, then it may well be that a sentence which at first sight and unexplained by those considerations, appears to be within range and even lenient, is, in fact, not within range. The approach taken on behalf of the Crown risks undermining the function of sentence reductions in respect of those two important components. What it does is risk depriving an offender of the full benefit of reductions to which he or she is entitled. Here, the proper question is whether the starting point of 12 years would have been within or outside the appropriate range for this offender and this offence, absent the reduction for the plea of guilty and the assistance.

[34] I am aware that in R v SZ [2007] NSWCCA 19, and in Rutkowskyj v R [2008] NSWCCA 10, this court has held that the focus in a sentence appeal must be the sentence actually imposed, rather than the notional starting point. But in each of these cases, it was held that the reduction allowed was excessive. Here, where it was not contended that the reduction was excessive, justice demands that the focus be on the starting point.”

See also Mun v R [2015] NSWCCA 234 at [58]-[63].

5. However, as Hoeben CJ at CL has pointed out, in the present case the notional starting point was not manifestly excessive.

6. HOEBEN CJ at CL:

Offences and sentence

The applicant seeks leave to appeal against the sentence imposed upon him on 7 July 2016 by Judge Buscombe in the District Court at Penrith.

7. The applicant pleaded guilty to one count of wound with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW), for which the maximum penalty is imprisonment for 25 years and which has a standard non-parole period of 7 years.

8. The applicant was sentenced to imprisonment for 6 years, commencing 20 July 2014, and expiring 19 July 2020 with a non-parole period of 4 years expiring 19 July 2018.

9. By way of further background, the applicant had been committed for trial on one count of wound with intent to murder and in the alternative, one count of wound with intent to cause grievous bodily harm. The Crown did not accept an offer to plead guilty to the alternative count when the matter was before the Local Court.

10. On 8 February 2016, the first day of the trial, the Crown informed his Honour that the victim had determined not to attend court to give evidence. After discussions and an adjournment for the purpose of each counsel seeking instructions, the applicant was arraigned and entered a plea of guilty to the alternative charge. The plea was accepted by the Crown in full satisfaction of the indictment.

11. The applicant received a discount of 25% for his plea of guilty.

Factual background

12. The applicant and the victim were husband and wife and had been married for approximately 30 years. At the time of the offending, the victim was aged 46 and the applicant 51. The witnesses to the incident were the applicant’s son and daughter-in-law.

13. On 20 July 2014, the victim, the applicant, their son and daughter-in-law were residing in premises in Jamison Road, South Penrith. Those premises were owned by the victim and their son. The victim and the applicant shared a room, which was located at the rear of the top of the premises. Their son and his wife’s bedroom was located on the top floor of the premises towards the front of the house. There had been some history of domestic violence.

14. The victim moved to Australia in 2005 with her son so he could be educated here. The applicant remained living in China. From time to time he would travel to Australia to visit those members of his family residing here. Their son was running a business in Auburn. The victim for some time had premises at Auburn and rented a flat with two other persons.

15. In late 2013 their son and daughter-in-law purchased the home in South Penrith. Whenever the applicant came to Australia he would stay in those premises as would the victim. The applicant admitted in an interview with police that he did not like the victim’s living arrangements and suspected that she was unfaithful.

16. At about 5.40am on Sunday, 20 July 2014 the victim was awoken from her sleep by the applicant opening the bedroom curtain. He changed from his pyjamas into his day clothes, left the bedroom, went to the bathroom, walked downstairs and got a drink of water. He then returned to the bedroom where the victim was still lying in bed. The applicant closed and locked the bedroom door, turned on the bedroom light, approached the victim and pulled back the bedding exposing her.

17. The applicant started accusing the victim of having an affair. The applicant’s demeanour and behaviour caused the victim to have concerns for her welfare and she became fearful. She discreetly obtained her mobile telephone from the bedside table and contacted her son’s phone. Because his phone did not answer, she contacted her daughter-in-law’s phone. This call was answered. Unknown to the applicant, the victim placed her mobile phone, with an open line to her son and daughter-in-law, underneath the bed sheets. The victim did not talk during the call, however, she kept an open line. The victim did this because she believed the applicant was going to assault her.

18. The applicant continued berating the victim and accusing her of being unfaithful. He said “You have three choices. You need to show me who the guy is.” The victim did not respond. The applicant threatened to take her ashes back to China and then said “I’m going to gaol for the rest of my life”. The victim again did not reply. The victim said that she did not reply as she was too scared to talk and was in fear of her life.

19. The victim, who was still dressed in her pyjamas, sat on the side of the bed with her feet resting on the floor. When she attempted to get up and leave the room, the applicant blocked her way. He stood next to the bed, directly next to the victim. He continued berating her about having an affair and said “You’re my wife, I know, you need to show me”. The victim replied “We got married twenty years ago, why do you always say this and threaten me like this”.

20. As the victim and the applicant argued, their son ran down the hallway from his bedroom to their bedroom. He attempted to open the bedroom door but was unable to do so because it was locked. Their son yelled to the applicant to open the door. The applicant replied “Don’t come in or I’ll kill her”. The victim also replied “Don’t come in”. Their son, fearing something was seriously wrong, ran back down the hallway to his bedroom to obtain the spare key to their bedroom.

21. At this time the applicant removed a knife from a black laptop style bag, which was sitting on the floor inside a nearby walk-in wardrobe. The applicant was known by his family to carry this bag with him on a daily basis. He returned to where the victim was standing by the side of the bed in her pyjamas and with his left hand grabbed her around the throat. With his right hand, he pressed the knife into her neck, approximately an inch below her left ear. The victim believed the applicant was going to slit her throat.

22. As the applicant attempted to drag the knife across the victim’s throat, she put up her hands in an attempt to stop the assault and fight him off. In doing so, she received a small laceration to her right index finger and a larger, far more serious laceration, to her left index finger. The injury to the left index finger split her finger completely open from the tip to the lower knuckle.

23. As the applicant was in the process of attacking the victim, their son was able to gain access to the room with the spare key. He saw that the applicant was holding the victim by the throat with his left hand. He described the applicant as pushing the victim backwards and pinning her down on the bed. He saw the applicant holding a knife at waist height in his right hand. He saw that the blade of the knife was cutting into the victim’s neck. He said that the victim had a large amount of blood on her face, neck and both her hands.

24. Their son grabbed the applicant and attempted to pull him off the victim. The applicant had such a tight grip on her that their son was unable to separate them. He violently pulled the applicant backwards and slammed him into the bedroom door. He then began choking the applicant in an attempt to make him release his grip on the victim. Their son was eventually able to get the applicant to release his grip on the victim. He pushed the applicant onto the bed so that he was facing downwards towards the mattress. He jumped on the applicant’s back and pinned him down onto the bed. The applicant struggled violently and attempted to get back to his feet.

25. Their son saw his wife and the victim standing in the hallway outside the bedroom. He saw a black handled knife with blood on the stainless steel blade lying on the floor between the bed and the doorway. He picked up the knife and left the bedroom. His wife took the victim to her bedroom where she attempted to administer first aid to the victim’s injuries.

26. A short time later, he drove his mother to the Nepean Hospital where she was admitted for her injuries. The applicant and his daughter-in-law remained in the house. The hospital staff notified the police of the offence. The injuries to the victim’s neck and left index finger were assessed as having penetrated both the dermis and epidermis and were therefore classified as wounds. The wound to the victim’s neck narrowly missed the carotid artery and had to be operated on to ensure that the victim did not have any internal bleeding. The wound on the victim’s left index finger caused significant tendon damage and required plastic surgery. The victim was in surgery for in excess of six hours being treated for her injuries.

27. When police went to the premises, the applicant was arrested and the knife was found. The applicant made certain admissions when he was interviewed. He admitted his involvement in a domestic incident with the victim at their residence earlier the same day. The applicant was able to recall almost the entire incident, apart from the involvement of a knife and the injuries inflicted upon the victim.

28. The applicant said that he did not really know what had happened and that his mind had turned blank. He confirmed that he had never previously suffered from memory loss, was not taking any medication, was not suffering from any mental illness and generally did not have any trouble recalling things. The applicant agreed that he and the victim had been the only two people in the bedroom at the time of the incident. The applicant confirmed that he did not believe that anyone else in the house had injured the victim or that she had inflicted the wounds herself.

29. The applicant said that he had argued with his wife and had accused her of having an affair. He said that his allegations of his wife having an affair were based on suspicion only and that he had no direct evidence of any such affair. The applicant said that the thought of his wife having an affair, and that she had moved out of the family home at Penrith and had returned to her rental unit at Auburn, had made him very angry. The applicant said that in Chinese culture, it was very shameful for a man if his wife had an affair.

Proceedings on sentence

30. Having reviewed the facts, the sentencing judge assessed the objective seriousness of the offending. He found that the actual injuries were towards the lower end of the spectrum and were not long lasting or life threatening. He did note that the wound to the neck narrowly missed the carotid artery and that if that artery had been cut then the nature of the injury would have been very severe, if not fatal. His Honour found that but for the intervention of their son, the injuries may well have been far more serious than they were.

31. His Honour observed that the extent of injury was not the only matter to have regard to when assessing objective seriousness. The whole circumstances of the offending must be considered. On that issue, his Honour found that the offence was not entirely unplanned. His Honour found that the presence of the knife in the applicant’s bag, and his belief over time that his wife was having an affair, suggested that there was some planning involved. He characterised the offence as “a serious example of domestic violence within a marriage, because it involved the use of a large knife”. He found that the victim would have been terrified and in fear of her life.

32. His Honour was not prepared to accept the Crown's submission that the offence fell below the mid-range of objective seriousness. His Honour assessed the objective seriousness as “within the mid-range”.

33. His Honour then reviewed the applicant's subjective case. He had one matter on his criminal record, being a conviction on 30 March 2010 for an offence of common assault on the same victim, i.e. his wife. The applicant had been in custody since his arrest on 20 July 2014. His Honour noted that any sentence would be backdated to that date.

34. His Honour took into account the psychological report from Ms Hubner tendered in the applicant’s case. In the absence of evidence from the applicant, his Honour relied upon the history recorded in that report to provide information about the applicant.

35. The applicant was born in and lived most of his life in China. He had four older sisters and an older and younger brother. His elderly parents were alive in China. He had limited schooling but reported no adjustment issues, transitioning from childhood to adulthood. He met the victim when he was aged 22 and they married not long after that. They had three adult children. The applicant said that he had limited financial resources in China.

36. The victim moved to Australia with their younger son in 2005 to advance his education and a year later their daughter joined them. The applicant remained in China to look after his aging parents but would visit Australia regularly. He told the psychologist that on one occasion he and the victim had become involved in a heated argument and that is what led to the common assault conviction that was on his record. When he was aged 50, his twin children purchased a home in South Penrith. The victim and the children moved there and the applicant would stay there when he was in Australia. At one point he received a phone call from his son advising that the victim had moved out and this caused him to suspect that the victim was having an affair.

37. His Honour found little evidence of remorse. The applicant told the psychologist that he should not have argued with his wife but she had “pushed” him and he became angry. It was common ground that by "pushed" the applicant was referring to emotional pressure, rather than a physical push.

38. Although the psychologist assessed the applicant as suffering from severe depression and anxiety, she attributed this to his current circumstances and imprisonment. The victim and his children were not visiting the applicant in prison and he had no friends in Australia. He was isolated in gaol and had little English. His Honour found that the applicant would find his time in gaol particularly difficult for those reasons and his depression.

39. His Honour took into account the findings of Ms Hubner in her report. She assessed the applicants cognitive functioning as below average, although it was not the subject of formal testing. There was evidence that the applicant’s elderly parents’ health had deteriorated in recent times and that they hoped that they would see him again before their deaths.

40. His Honour took into account the maximum penalty for the offences and the standard non-parole period as legislative guideposts. His Honour also had regard to the objects of sentencing in s 3A of the Crimes (Sentencing Procedure) Act1999 (NSW). Despite the lack of remorse, his Honour found that the applicant had good prospects of rehabilitation. This was because he had a limited criminal history and had not incurred any prison discipline infringements while he was in custody.

41. His Honour found special circumstances in favour of the applicant. He made that finding because it was the applicant’s first time in custody, his severe depression, his isolation from friends and relatives and because it was unlikely that he would receive any visits in prison. His very limited English would add to his isolation while in prison.

30. His Honour set out his conclusions as follows:

“Offences such as this are very serious because of the intent involved, that is why the Parliament has prescribed the maximum penalty it has. Where such offences are committed within a domestic setting the Courts must impose significant sentences in order to reflect the Court’s and the community’s concern at the level of domestic violence in the community, generally perpetrated by men against women. There is a need here to reflect both specific deterrence, given the matter on his record involving the same victim, and general deterrence in the sentence imposed.” (Sentence judgment, 8.7)

THE APPEAL

43. The applicant relied upon a single ground of appeal:

The applicant contends that his Honour’s sentence was manifestly excessive.

44. The applicant submitted that allowing for the 25% discount for an early plea of guilty, the starting point for the sentence must have been 8 years, which in the circumstances was excessive. The applicant submitted that the Judicial Commission’s statistics demonstrated that the non-parole period of 4 years was well above the majority of sentences imposed for this offence.

45. The applicant submitted that the sentencing judge had given insufficient weight to the circumstances in which the applicant found himself and in particular, his genuine belief that his wife had been unfaithful to him. The applicant submitted that although his Honour had referred to the matters which would make the applicant’s time in custody more difficult, he had not given appropriate weight to them.

46. In oral submissions, the applicant submitted that his Honour’s assessment of the objective seriousness of the offending at mid-range was excessive, and that his Honour should have accepted the Crown’s submission that objective seriousness was below the mid-range. The applicant submitted that his Honour had failed to give adequate weight to the psychological report of Ms Hubner tendered in the applicant’s case.

Consideration

47. It should not be forgotten that to establish that a sentence is manifestly excessive an applicant must demonstrate that the sentence was “unreasonable or plainly unjust” (Dinsdale v The Queen [2000] HCA 54; 202 CLR 321; Markarian v The Queen [2005] HCA 25; 228 CLR 357). This has to be established in a context where there is no single correct sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle (Markarian v The Queen at [27]).

48. Since there is no “correct” sentence, it is not sufficient that a court might have exercised the sentencing discretion in a manner different to the manner in which the sentencing judge exercised his discretion (Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]).

49. A just sentence is determined in a particular case by reference to the offences committed, the maximum penalties and standard non-parole periods relevant to those offences and all objective and subjective factors which should be appropriately brought into account on sentence, together with principles concerning accumulation, concurrency and totality (Paxton v R [2011] NSWCCA 242; 219 A Crim R 104).

50. Other than the bare assertion that a starting point of imprisonment for 8 years is excessive, and a reference to statistics, nothing was put before the Court to establish that such a starting point was excessive in the circumstances of this case. In any event, approaching a case from a hypothetical start point deflects attention from the proper question namely, whether the sentence actually imposed was unreasonable (Adzioski v R [2013] NSWCCA 69 at [72], Graham v Regina [2009] NSWCCA 212 at [40] and Yang v R [2012] NSWCCA 49 at [63]). While accepting that the starting point of a discounted sentence cannot be ignored, when all of the relevant factors on sentence are taken into account in this case, a starting point of 8 years cannot be said to be outside the range.

51. The High Court and this Court have on many occasions set out the limitations associated with statistics. They are, at best, only a blunt instrument and do not, by themselves, establish a sentencing range (Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520). In any event, a submission about manifest excess should focus on the salient facts of the case and a consideration of the maximum applicable sentence (R v Wei Zheng Wong [2010] NSWCCA 160 at [9]).

52. In this case, however, the statistics handed up by the applicant’s counsel in the sentence proceedings indicate that of a total of 178 cases under s 33(1)(a), where there was a plea of guilty, 23% of offenders received a head sentence of 6 years and 44% of offenders received a sentence of 6 years or more. Accordingly, the statistics put forward by the applicant do not support the ground of appeal. That is not surprising. Offences under s 33 cover a broad range of offending. In determining the appropriate sentence, all the circumstances must be taken into account including the degree of violence, the ferocity of the attack, whether the offence was unprovoked and the relationship between the offender and the victim. That there should be a substantial variation in the statistics relating to this kind of offence is therefore not surprising.

53. The applicant’s circumstances at the time of the offending and his genuine belief that the victim may have been unfaithful to him can in no way justify or ameliorate the seriousness of the offending. Regrettably, it is often the case with domestic violence that the catalyst is a genuine, albeit irrational, belief on the part of the aggressor that he, or occasionally she, has been wronged in some way by the victim. A resort to violence in such circumstances is not justified, even if the aggressor’s belief turns out to be correct. His Honour’s remarks concerning the courts’ and the community’s concern at the level of domestic violence in the community (at [42] hereof) was timely and appropriate.

54. The submission that his Honour did not sufficiently take into account the hardship which the applicant would experience in custody, and that his Honour did not sufficiently take into account the contents of the psychological report of Ms Hubner, fails in limine. His Honour clearly did take those matters into account because he expressly referred to them in the sentence judgment. Once that is accepted, absent other evidence or indicia, there is no basis for the assertion that his Honour did not give “enough weight” to those considerations.

55. In oral submissions concerning his Honour’s assessment of the objective seriousness of the offending, counsel for the applicant accepted that it was open to his Honour to find as he did, but that the predominance of the evidence pointed to a lesser degree of seriousness. That concession is fatal to the submission. For the applicant to succeed in establishing that his Honour erred in his assessment of the objective seriousness of the offending, he would have to establish House v The King [1936] HCA 40; 55 CLR 499 error. The concession that such a finding was open to the sentencing judge precludes a finding of error of that kind.

56. The maximum penalty and the standard non-parole period provide important guideposts to the determination of an appropriate sentence. That the head sentence imposed on the applicant is 1 year less than the standard non-parole period prescribed for the offence is a factor which argues against the proposition that the sentence is manifestly excessive. Taking into account the objective seriousness of the offending, the applicant’s subjective features, the legislative guideposts and the purposes of sentencing, a sentence of 6 years with a non-parole period of 4 years cannot be said to be so unreasonable or plainly unjust as to warrant this Court’s intervention.

57. The order which I propose is that leave to appeal against sentence should be refused.

58. McCALLUM J: I have read the judgments of the Chief Justice and Hoeben CJ at CL in draft.  I agree with the order proposed by Hoeben CJ at CL, for the reasons his Honour has stated, subject to the qualification stated by the Chief Justice, with whom I agree.

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Decision last updated: 21 June 2017