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Supreme Court 1 October 2020

R v Wang

[2020] NSWSC 1335

HomicideDomestic & family violence
CRIMINAL LAW SENTENCE MURDER STABBING WITH INTENTION TO KILL NOT IMPULSIVE OR SPONTANEOUS RELEVANCE TO SENTENCE

Citation: R v Wang [2020] NSWSC 1335
Court: Supreme Court of New South Wales
Date: 1 October 2020
Judge(s): Beech-Jones J

Background

The offender pleaded guilty to the murder of her 23-year-old ex-partner on 17 June 2019. The relationship had ended earlier that year, and the offender had struggled significantly with the breakup, developing symptoms of depression and anxiety documented by medical practitioners in the months before the killing.

On the evening of the offence, the victim attended the offender's Zetland apartment to collect belongings. A violent physical confrontation occurred inside, after which the victim fell from the fifth-floor balcony to the pavement below. Rather than rendering assistance, the offender returned to her apartment to retrieve a knife and then stabbed the victim to death on the footpath.

The sentencing hearing took place on 14 September 2020. The court received an agreed statement of facts and, over objection from the offender's senior counsel, also admitted and played CCTV footage of the apartment common areas and footpath, on the basis that it assisted in resolving factual disputes and gave the court a fuller appreciation of the offending.

  • Whether a life sentence was warranted under s 61(1) of the Crimes (Sentencing Procedure) Act 1999
  • The objective seriousness of the offence and where it sat in the range for murder
  • The relevance of the offender's diagnosed major depressive disorder to the sentencing exercise
  • Whether the killing was impulsive or involved premeditation, and how that affected culpability
  • The weight to be given to mitigating factors, including remorse and the guilty plea
  • The appropriate head sentence and non-parole period, having regard to the standard non-parole period of 20 years and comparable cases

Decision

Beech-Jones J declined to impose a life sentence, finding that although the murder was a particularly serious instance of the offence, the level of culpability did not reach the threshold at which community interests in retribution, punishment, protection, and deterrence could only be met by life imprisonment. The Crown did not press for a life sentence.

The court assessed the offence as above the mid-range of objective seriousness. The killing was not impulsive or spontaneous. The CCTV footage assisted in resolving disputed facts, including the offender's suggested lack of control and whether she was affected by alcohol. The court found the offender's conduct after the victim fell, specifically returning to the apartment to obtain a knife before stabbing her, reflected deliberation and callousness rather than a momentary loss of control.

On mitigating factors, the court accepted that the offender had been diagnosed with major depressive disorder and that this warranted some leniency. The court also accepted evidence of remorse and afforded a discount for the guilty plea. However, Beech-Jones J found that these mitigating factors were dwarfed by the magnitude of the crime. General deterrence, retribution, and denunciation were identified as the dominant sentencing criteria.

The court assessed the risk of serious reoffending as low but not negligible. Before applying the guilty plea discount, the court placed the head sentence at 34 years imprisonment. After the discount, the sentence was fixed at 25 years and 6 months, with a non-parole period of 19 years. A finding of special circumstances was made, but only to allow for rounding, with the non-parole period set just below the standard statutory ratio.

Orders Made

  • The offender was convicted of murder.
  • Head sentence: 25 years and 6 months imprisonment.
  • Non-parole period: 19 years, commencing 18 June 2019, expiring 18 June 2038.
  • Additional term: 6 years and 6 months, commencing 18 June 2038 and ending 17 December 2044.
  • First eligible for release on parole: 18 June 2038.
  • The court noted the application of the Crimes (High Risk Offenders) Act 2006 to the offence, as required by s 25C of that Act.

Key Takeaways

  • A guilty plea and a diagnosis of major depressive disorder can constitute mitigating factors in a murder sentence, but the court found those factors carried limited weight where the objective seriousness of the offending was high and the circumstances were callous and deliberate.

  • CCTV footage tendered over objection was admitted on the basis that it assisted in resolving factual disputes about the offender's state of control and potential intoxication, and that playing it in open court advanced public confidence in the transparency of serious criminal proceedings.

  • Where an agreed statement of facts exists, any further findings adverse to an offender must be established beyond reasonable doubt, while findings favourable to the offender need only be proved on the balance of probabilities, consistent with R v Olbrich (1999) 199 CLR 270.

  • The Supreme Court confirmed that the sentencing exercise for murder requires the court to identify all relevant factors and weigh them holistically, with the standard non-parole period of 20 years and the life maximum serving as legislative guideposts rather than starting points or presumptive outcomes, following Muldrock v R (2011) 244 CLR 120.

  • In this instance, general deterrence, retribution, and denunciation were treated as the dominant sentencing criteria, with the offender's personal circumstances affording only limited mitigation against a head sentence placed above the mid-range of objective seriousness.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 19A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(1), 44(2), 54A, 61(1)
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 25C

Cases
- Betts v R [2015] NSWCCA 39
- Bugmy v The Queen (2013) 249 CLR 571
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Markarian v R (2005) 228 CLR 357
- McKinnon v R [2020] NSWCCA 106
- McLaren v R [2012] NSWCCA 284
- Milat v R; Klein v R [2014] NSWCCA 29
- Muldrock v R (2011) 244 CLR 120
- Mulvihill v R [2016] NSWCCA 259
- R v Cadman [2019] NSWSC 634
- R v Cullen [2015] NSWSC 768
- R v Engert (1995) 84 A Crim R 67
- R v Greentree [2019] NSWSC 1642
- R v Hejabian [2016] NSWSC 1692
- R v Henry (1999) 46 NSWLR 346
- R v Israil [2002] NSWCCA 255
- R v Koosmen [2004] NSWCCA 359
- R v Mulligan [2016] NSWCCA 47
- R v Mulvihill [2014] NSWSC 443
- R v Olbrich (1999) 199 CLR 270