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Court of Criminal Appeal 1 December 2021

Wang v R

[2021] NSWCCA 282

HomicideDomestic & family violence
CRIME SENTENCE APPEAL MURDER DOMESTIC VIOLENCE SUBSEQUENT STABBING CAUSED DEATH INTENTION TO KILL

Citation: Wang v R [2021] NSWCCA 282
Court: NSW Court of Criminal Appeal
Date: 1 December 2021
Judge(s): Meagher JA; R A Hulme J; Davies J

Background

The applicant pleaded guilty to the murder of her former partner in June 2019, in circumstances described by the sentencing judge as a "particularly heinous act." After a violent confrontation in the applicant's fifth-floor apartment in Zetland, the deceased fell from the balcony to the path below and sustained serious injuries. The applicant descended, inspected the injured woman, returned to her apartment, and then came back with a knife and inflicted approximately 40 stab wounds, causing death.

Beech-Jones J (as he then was) sentenced the applicant in the Supreme Court to 25 years and 6 months imprisonment, with a non-parole period of 19 years, following a 25% reduction for an early guilty plea. The sentence was backdated to 18 June 2019. Murder carries a maximum sentence of life imprisonment under s 19A of the Crimes Act 1900 (NSW), and the standard non-parole period applicable was 20 years.

The applicant sought leave to appeal on four grounds: that new psychiatric evidence should have been admitted; that the sentencing judge made a factual error about a comparable sentence; that the sentence was not reasonably consistent with comparable cases; and that the sentence was manifestly excessive.

  • Whether a third post-sentence report from the applicant's forensic psychiatrist should be admitted as fresh evidence on appeal, where it sought to clarify or supplement two earlier reports and contested the sentencing judge's findings about the role of Major Depressive Disorder in forming the intention to kill.
  • Whether a second post-sentence report contesting the finding that the applicant's background did not reduce her moral culpability should be admitted as fresh evidence.
  • Whether the sentencing judge made a material error by misidentifying the starting point in a comparable case (R v Cullen) as 30 years and 6 months rather than 30 years.
  • Whether the sentence was unreasonably inconsistent with comparable cases, or was otherwise manifestly excessive.

Decision

Ground 1 (new psychiatric evidence on intention): The Court of Criminal Appeal declined to admit the forensic psychiatrist's third report, prepared after sentencing. The sentencing judge's finding, that the applicant's severe Major Depressive Disorder inhibited her ability to restrain herself from acting on an already-formed intention to kill rather than playing a role in initially forming that intention, was open to him on the basis of clear CCTV footage. The first two psychiatric reports were sufficiently clear on this point, and the third report amounted to a reformulation of the expert's position in response to the judge's adverse finding. The Court held there was no proper basis to receive it.

Ground 2 (new evidence on background and moral culpability): The Court also refused to admit the post-sentence report insofar as it sought to establish a causal link between the applicant's difficult personal background and the offending. The two original reports had not asserted any such causal link. The new argument was described as a reformulation of the case and a tenuous one, and the ground was rejected.

Ground 3 (error in comparable case): The sentencing judge had noted the starting point in R v Cullen as 30 years and 6 months, when it was in fact 30 years. The Court accepted this was an error but found it trivial. The judge had explicitly acknowledged that individual sentencing outcomes are not binding, and the minor misstatement had no bearing on how his Honour exercised the sentencing discretion.

Ground 4 (consistency and manifest excess): The applicant argued the sentence was higher than a case of comparable objective seriousness. The Court rejected the contention that numerical equivalence between cases is required, and observed that the applicant's arguments were antithetical to the principle of instinctive synthesis, the approach by which sentencing judges weigh all relevant factors together rather than mechanically aggregating them. No manifest excess was established, and the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • A post-sentence expert report that responds to, and contests, specific adverse findings made by a sentencing judge is not automatically admissible on appeal as fresh evidence, particularly where the original reports were sufficiently clear and the footage directly supported the judge's conclusions.
  • Where a new expert report advances a causal argument (here, between background and offending) that was not raised in the original reports, this constitutes a reformulation of the case rather than a clarification, and provides no sound basis for admission on appeal.
  • A minor factual error in a sentencing judge's description of a comparable case does not constitute a material sentencing error where the judge has expressly acknowledged that individual outcomes in other cases are not binding.
  • Sentencing in NSW for murder operates through instinctive synthesis: courts weigh all relevant factors holistically, and arguments demanding numerical parity with other cases are inconsistent with that methodology.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that CCTV evidence directly observed by the sentencing judge can provide a firm foundation for rejecting or limiting the weight given to expert psychiatric opinion about an offender's state of mind.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 19A (murder, maximum life imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A (standard non-parole periods)
- Crimes Act 1900 (NSW), s 23A (substantial impairment, as it then was)

Cases:
- R v Wang [2020] NSWSC 1335 (sentencing remarks below)
- Bugmy v The Queen (2013) 249 CLR 571
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- Wong v The Queen (2001) 207 CLR 584
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Kentwell v The Queen (2014) 252 CLR 601
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Lehn v R (2016) 93 NSWLR 205
- Newman v R [2019] NSWCCA 157
- R v Cullen [2015] NSWSC 768
- R v Villaluna [2017] NSWSC 1390
- R v Mulvihill [2014] NSWSC 443
- R v Qutami [2001] NSWCCA 353
- Khoury v R [2011] NSWCCA 118
- RCW v R (No 2) [2014] NSWCCA 190
- ZZ v R [2019] NSWCCA 286
- R v Birks (1990) 19 NSWLR 677
- R v Wright (1997) 93 A Crim R 48
- R v Smith (1987) 44 SASR 587