Citation: SUN, Yee Sing v Regina [2011] NSWCCA 99
Court: Court of Criminal Appeal, NSW
Date: 28 April 2011
Judge(s): Campbell JA (principal judgment), RS Hulme J and Adams J agreeing
Background
The applicant, a Hong Kong national living in Sydney, pleaded guilty to threatening to inflict actual bodily harm with intent to have sexual intercourse, contrary to s 61K of the Crimes Act 1900. The offence occurred in August 2008 when he followed a young woman along a pathway in Killara late at night, approached her with an offer of money for sex, and then pressed a knife to her throat while touching her. The victim managed to push the knife away and escape.
The applicant was arrested at Killara railway station approximately 30 minutes after the offence. He had no prior criminal history in New South Wales or overseas. Psychological evidence suggested he may have been experiencing thought disorder and delusional thinking at the time, motivated by an irrational desire to shame his parents.
In April 2010, District Court Judge Sorby sentenced the applicant to six years' imprisonment with a non-parole period of four years, commencing from the date of arrest in August 2008. The applicant sought leave to appeal on two grounds: that the sentencing judge incorrectly found he had expressed no remorse, and that the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in finding the applicant had not expressed remorse, and what weight should be placed on an offender's unverified statement of remorse
- Whether the sentence of six years with a four-year non-parole period was manifestly excessive
- How the objective seriousness of the offence should be assessed, including the effect of an unusual or irrational motive and the absence of a finding that the offender actually intended to inflict actual bodily harm
Decision
Campbell JA (with whom Hulme and Adams JJ agreed) found that the sentencing judge had made a factual error on the remorse question. The applicant had written a letter to the judge in Mandarin, described as powerfully eloquent, in which he expressed genuine remorse. The sentencing judge appeared to have overlooked or discounted this material, and that constituted an error.
On objective seriousness, Campbell JA accepted that the offence fell within the lower range. Several factors contributed to this assessment: the applicant's irrational and delusional motive, the fact that the court was not affirmatively satisfied he had actually intended to inflict bodily harm, and the unusual circumstances arising from his mental state. These features distinguished the case from more serious examples of the offence.
Campbell JA also assessed the appropriate non-parole period in light of the applicant's rehabilitation prospects. He was found to be of well above average intelligence, capable of skilled work and English language development, and his circumstances pointed toward a parole period representing 60 percent of the total term as appropriate. The 15 percent discount for the guilty plea (entered on the morning of the proposed trial, but following active negotiations the week before) was confirmed as correct.
The Court resentenced the applicant to a total term of 51 months, comprising a non-parole period of 30 months. Because the applicant had been in custody since August 2008, the non-parole period had already expired by the time of the appeal decision in April 2011.
Orders Made
- Leave to appeal granted
- Appeal allowed
- Sentence imposed in the court below set aside
- In lieu, the applicant sentenced to a non-parole period commencing 11 August 2008 and expiring 25 February 2011, with a balance of term expiring 11 November 2012
Key Takeaways
- A sentencing judge's failure to account for a written expression of remorse constitutes an identifiable error capable of vitiating the sentence on appeal, even where the remorse is unverified by independent evidence.
- Where a court is not affirmatively satisfied that an offender actually intended to inflict actual bodily harm, that uncertainty is relevant to the assessment of objective seriousness and can reduce the appropriate sentence.
- An offender's unusual or irrational motive, particularly one arising from possible thought disorder or delusion, may bear on the objective gravity of the offence without operating as a complete mitigating factor.
- The Court of Criminal Appeal confirmed that unverified statements of remorse still carry weight as a subjective matter in sentencing, even though they cannot be treated with the same confidence as remorse corroborated by objective evidence.
- Rehabilitation prospects, including an offender's capacity for skills training and language development, are legitimate considerations in fixing the balance between non-parole period and overall sentence length.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 61K (threaten to inflict actual bodily harm with intent to have sexual intercourse)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Summary Offences Act 1988 (NSW), s 11C(1) (possession of knife in public place)
Cases
- Alvares v R [2011] NSWCCA 33
- Baxter v The Queen [2007] NSWCCA 237; (2007) 173 A Crim R 284
- 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 Capar [2002] NSWCCA 285; (2002) 132 A Crim R 160
- R v Butters [2010] NSWCCA 1
- Pfitzner v R [2010] NSWCCA 314
- TS v R [2007] NSWCCA 194
- Webster v Regina [2006] NSWCCA 346
- R v Storey [1998] 1 VR 359
- O'Donnell v Regina (Court of Criminal Appeal, 12 May 1997, unreported)
- R v Tsokos (Court of Criminal Appeal, 19 June 1995, unreported)
- R v McGourty [2002] NSWCCA 335
- R v Elfar [2003] NSWCCA 358