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District Court 23 October 2020

R v Liu

[2020] NSWDC 698

Assault & violenceDomestic & family violence
CRIMES SENTENCE WOUND WITH INTENT TO MURDER INTIMIDATION.

Citation: R v Liu [2020] NSWDC 698
Court: District Court of New South Wales
Date: 23 October 2020
Judge(s): Colefax SC DCJ

Background

The offender, a 62-year-old man born in China, had been married to his former wife for many years before the couple divorced in 2016 following a violent assault by him on her, for which he received a community service order. After the divorce, the former wife retained ownership of the former matrimonial home and permitted the offender to continue living in a granny flat at the rear, with limited access to shared areas of the house.

In late 2017, the former wife entered a new relationship and her new partner moved into the home. The new partner was unaware of the offender's prior marriage to her, referring to him only as "Uncle." From the time the new partner moved in, the offender planned to kill him, deliberately delaying until the couple's children had finished their exams.

On 31 December 2018, the offender entered the kitchen where the former wife and her partner were eating, armed with a small serrated knife he had modified by wrapping insulating tape around the handle to improve his grip. He cut the new partner's throat from behind without warning, then turned on the former wife, pulling her by her hair, holding the knife to her neck, pushing her against a wall and a sliding door, and making stabbing motions toward her while she pleaded for her life.

  • What sentence was appropriate for the offence of wound with intent to murder under s 27 of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 10 years?
  • What sentence was appropriate for the offence of intimidation under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which carries a maximum penalty of 5 years imprisonment?
  • What discount, if any, should be applied to reflect the late guilty pleas?
  • Whether partial accumulation and an aggregate sentence were appropriate given two victims were involved.
  • Whether special circumstances existed to justify a variation of the standard ratio between the non-parole period and the total sentence.

Decision

Colefax SC DCJ assessed the wounding with intent to murder offence as falling in the midrange of objective seriousness for offences of its kind, aggravated by the significant planning involved. The intimidation offence was assessed as falling into the upper range of objective seriousness, aggravated by the use of actual violence, the use of a knife, the prior domestic violence conviction involving the same victim, and the fact that the offending occurred in her home.

The guilty pleas were entered very late, the offender having been arrested on 31 December 2018 and not arraigned until well into proceedings. A discount of only 5% was applied to reflect those late pleas. The court declined to make a finding of special circumstances, rejecting the submission that the offender's age and need for community reintegration warranted an extended parole period, on the basis that the parole period under the standard ratio would be sufficient.

General and specific deterrence were identified as fully engaged, with the court emphasising the prevalence and seriousness of domestic violence against women in their own homes. The absence of victim impact statements meant the court could not find that psychological harm to either victim exceeded what would ordinarily be expected for offences of this kind, though it noted such harm was undoubtedly suffered. Rehabilitation was noted as a relevant, if limited, consideration.

The prior 2016 domestic violence conviction against the same victim meant the offender could not benefit from leniency ordinarily available to first offenders. The court imposed partially accumulated indicative sentences and arrived at an aggregate term, taking totality into account.

Orders Made

  • Aggregate term of imprisonment of 13 years and 6 months.
  • Non-parole period of 10 years, commencing 31 December 2018 and expiring 30 December 2028.
  • Balance of term of 3 years and 6 months, commencing 31 December 2028 and expiring 30 June 2032.
  • Sequence two withdrawn and dismissed.

Key Takeaways

  • The District Court assessed wounding with intent to murder as a midrange offence where significant premeditation, including physical modification of the weapon and deliberate timing of the attack, constituted a specific aggravating feature beyond the elements of the offence itself.
  • A prior domestic violence conviction against the same victim operated as an aggravating factor for the intimidation offence and precluded any leniency available to first offenders on the more serious charge.
  • A discount of only 5% was applied where guilty pleas were entered very late in proceedings, well after arrest and arraignment.
  • The absence of victim impact statements limited the court's capacity to make findings about psychological harm beyond what is ordinarily expected, though the court noted both victims undoubtedly experienced serious psychological impact.
  • General deterrence in the context of domestic violence against women in their homes was treated as a weighty sentencing consideration, with the court expressly identifying the prevalence of such offending as a matter of serious community concern requiring stern judicial responses.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 27 (wound with intent to murder; maximum 25 years imprisonment; standard non-parole period 10 years)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) (intimidation; maximum 5 years imprisonment)

Cases cited: No cases were cited in the judgment.