Citation: Woon v Regina [2010] NSWCCA 335
Court: NSW Court of Criminal Appeal
Date: 8 December 2010
Judge(s): Simpson J, Blanch J, Garling J
Background
The applicant, a 74-year-old man, pleaded guilty in the District Court to two counts of wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900. The offences arose from a premeditated attack on 28 August 2008, in which he visited the home of two acquaintances from the Hainan-speaking Chinese community and stabbed them with half a pair of kitchen scissors. The female victim, aged 71, suffered ten stab wounds including life-threatening injuries to her lung. Her husband, an 80-year-old man confined to a wheelchair, suffered multiple stab wounds, one of which caused his lung to collapse.
The applicant claimed his actions were driven by longstanding resentment over rumours the female victim had allegedly spread about him years earlier. After the attack, he disposed of the weapon, withdrew a large sum of money, and purchased a ticket to Hong Kong, where he was subsequently arrested and extradited to Australia.
In the District Court, Ainslie-Wallace DCJ sentenced the applicant to a total sentence of ten years with a non-parole period of seven years, comprising two partially cumulative five-year non-parole periods with three-year additional terms. The applicant then sought leave to appeal against the severity of that sentence.
Legal Issues
- Whether sufficient weight was given to the applicant's expressions of remorse and contrition
- Whether the sentencing judge failed to give adequate weight to expert psychiatric evidence suggesting the applicant was depressed at the time of the offences
- Whether the applicant's age, health, and the hardship of imprisonment warranted a reduced sentence
- Whether the second sentence should have been made cumulative on the first
- Whether the level of pre-planning and the applicant's mental state at the time were properly assessed
- Whether the total sentences were manifestly excessive under s 6(3) of the Criminal Appeal Act 1912
Decision
The Court of Criminal Appeal, delivering judgment through Blanch J (with Simpson J and Garling J agreeing), refused the application for leave to appeal on all grounds.
On remorse and contrition, the court found the sentencing judge had correctly noted that the applicant's expressions of remorse were qualified by continued reliance on provocation as justification. The court also observed that any claim of provocation had no possible application to the attack on the male victim, who had done nothing more than call out in support of his wife.
On the psychiatric evidence, the court accepted that the sentencing judge had addressed Dr Lucas's report in detail and was entitled to find that the expert's conclusions relied solely on the applicant's own assertions. While depression could be relevant in mitigation and might diminish the weight given to general and specific deterrence, the sentencing judge was not persuaded it reduced the objective gravity of the offences, and the Court of Criminal Appeal found no error in that approach.
On the question of manifest excess, the court characterised the sentences as "very moderate," observing that longer sentences would have been justified. The attack on the female victim was described as prolonged and vicious, and the attack on the wheelchair-bound male victim was entirely unexplained. Given the standard non-parole period of seven years and the maximum of 25 years for the offences, the sentences imposed did not warrant appellate intervention.
Orders Made
- Application for leave to appeal against sentence refused.
Key Takeaways
- In dismissing all grounds of appeal, the Court of Criminal Appeal confirmed that a sentencing judge is entitled to treat expressions of remorse with reduced weight where the offender continues to justify his conduct by reference to provocation.
- A claim of provocation is wholly inapplicable where the offending extends to an uninvolved victim who played no part in the events giving rise to the alleged grievance.
- Psychiatric evidence of depression may be relevant to mitigation and to the weight placed on deterrence, but only where it is sufficiently supported by material beyond the offender's own account (citing R v Hemsley [2004] NSWCCA 228).
- Cumulative sentences are appropriate where distinct offending occurred against separate victims, even where the offences arose from a single incident.
- No lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912 where the total sentence of ten years with a seven-year non-parole period was, in the court's view, moderate given the gravity and nature of the attacks.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 33(1)(a) (wounding with intent to cause grievous bodily harm, maximum 25 years, standard non-parole period seven years); s 23(2)(b)
- Criminal Appeal Act 1912 (NSW), s 6(3) (test for appellate intervention: whether a less severe sentence is warranted in law)
Cases:
- R v Hemsley [2004] NSWCCA 228 (mental condition and its effect on the weight given to general and specific deterrence)