Citation: Xue v R [2017] NSWCCA 137
Court: NSW Court of Criminal Appeal
Date: 21 June 2017
Judge(s): Bathurst CJ; Hoeben CJ at CL; McCallum J
Background
The appellant husband pleaded guilty to one count of wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900 (NSW), following a knife attack on his wife in the bedroom of their son's home in South Penrith. The couple had been married for approximately 30 years. The attack occurred in the early hours of the morning after the husband locked the bedroom door, accused the wife of infidelity, and then stabbed her in the neck with a knife he had retrieved from a bag in the wardrobe.
The offending was witnessed indirectly by the son and daughter-in-law, who had been alerted by the wife's covert phone call before the attack. The husband had originally been committed for trial on a charge of wounding with intent to murder. On the first day of trial, after the victim indicated she would not attend to give evidence, the Crown accepted a guilty plea to the lesser charge.
In the District Court at Penrith, Judge Buscombe sentenced the appellant to six years' imprisonment with a non-parole period of four years, incorporating a 25% discount for the guilty plea. The appellant sought leave to appeal, contending the sentence was manifestly excessive.
Legal Issues
- Whether the sentence of six years' imprisonment (non-parole period of four years) for wounding with intent to cause grievous bodily harm was manifestly excessive.
- Whether the sentencing judge's assessment of the objective seriousness of the offending was open on the evidence.
- Whether the sentencing judge gave sufficient weight to the appellant's subjective features, including hardship in custody and a psychological report.
- Whether the correct approach to manifest excess requires focus on the sentence actually imposed or on a notional starting point where discounts are not in dispute.
Decision
The Court of Criminal Appeal refused leave to appeal, finding no basis to conclude the sentence was unreasonable or plainly unjust. The court noted that the standard non-parole period for the offence is seven years and the maximum penalty is 25 years' imprisonment. The fact that the head sentence of six years was actually one year less than the standard non-parole period was treated as a factor weighing against any finding of manifest excess.
On objective seriousness, the court observed that appellant's counsel had conceded at the hearing that the sentencing judge's finding of seriousness was open on the evidence, even if other findings might have been available. That concession was fatal to the appeal on that ground: to establish error of the kind required by House v The King (1936), it is not enough to show a different finding was possible; the appellant had to show the finding made was not open.
The appellant also argued the sentencing judge had failed to give sufficient weight to the hardship of custody and the psychological report. The Court of Criminal Appeal rejected this contention because the sentencing judge expressly referred to those matters in the sentencing judgment. The mere assertion that insufficient weight was given, without further evidence or indicia, cannot displace the record.
The court also addressed a point of principle regarding manifest excess appeals where discounts apply. Bathurst CJ and McCallum J agreed with a qualification raised by the Chief Justice: where an offender is entitled to sentencing discounts that are not in dispute, it may be necessary to examine the notional starting point to ensure those discounts are not concealing a manifestly excessive base sentence. However, that issue did not affect the outcome because the notional starting point itself was not manifestly excessive on the facts of this case.
Orders Made
- Leave to appeal against sentence refused.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the test for manifest excess requires the appellant to establish that the sentence imposed was unreasonable or plainly unjust, not merely that a different outcome was available.
- A concession by appellant's counsel that a finding of objective seriousness was open to the sentencing judge is fatal to an appeal on that ground, as it forecloses any finding of House v The King error.
- Sentencing courts are not required to give separately articulated "extra" weight to subjective factors expressly addressed in the sentencing remarks; the fact that a matter was considered on the face of the judgment is ordinarily sufficient to rebut a claim of insufficient weight.
- Where sentencing discounts are not in dispute, appellate courts may need to examine the notional starting point to ensure that legitimate discounts are not obscuring an otherwise manifestly excessive base sentence. This principle, drawn from TYN v R and McGeown v R, was affirmed by Bathurst CJ and McCallum J as the correct approach, subject to Hoeben CJ at CL's formulation being read in its proper context.
- The standard non-parole period and maximum penalty remain important legislative guideposts for assessing whether a sentence falls within a permissible range, and a head sentence below the standard non-parole period supports a finding that the sentence was not excessive.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases
- House v The King [1936] HCA 40; 55 CLR 499
- TYN v R (2009) 195 A Crim R 345; [2009] NSWCCA 146
- McGeown v R (2014) 247 A Crim R 206; [2014] NSWCCA 314
- Graham v Regina [2009] NSWCCA 212
- Adzioski v R [2013] NSWCCA 69
- Yang v R [2012] NSWCCA 49
- Mun v R [2015] NSWCCA 234
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Paxton v R [2011] NSWCCA 242; 219 A Crim R 104
- R v Wei Zheng Wong [2010] NSWCCA 160