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Court of Criminal Appeal 30 April 2021

R v Dong

[2021] NSWCCA 82

Homicide
HOUSE V R ERROR PURPOSES OF SENTENCING VEEN (NO 2) PROPORTIONALITY OF SENTENCE OFFENDER SUFFERING MENTAL ILLNESS MANIFEST INADEQUACY

Citation: R v Dong [2021] NSWCCA 82
Court: NSW Court of Criminal Appeal
Date: 30 April 2021
Judges: Bathurst CJ, Bellew J, Beech-Jones J (unanimous)

Background

The respondent pleaded guilty to the murder of his flatmate, Qi Yu, at Campsie on 8 June 2018. The victim was 28 years old. The respondent had moved into her apartment less than three weeks before her death and was due to leave the following day. No apparent motive for the killing was ever established.

The agreed facts painted a grim picture. The respondent turned off the power to the unit, lied to a neighbour and police about the victim's whereabouts, and used the victim's car to transport and dispose of her body in bushland near Ku-ring-gai Railway Station. Her remains were found weeks later, partly undressed, with a shirt tied around her neck. The respondent's DNA was found on the shirt.

On 18 September 2020, Hidden AJ sentenced the respondent to 18 years' imprisonment with a non-parole period of 13 years and 6 months. The Crown appealed that sentence under s 5D of the Criminal Appeal Act 1912, arguing it was manifestly inadequate and that the sentencing judge had failed to consider the protection of the community.

  • Whether the sentencing judge erred by failing to consider the protection of the community from the respondent, a recognised purpose of sentencing under the principles established in Veen (No 2)
  • Whether the original sentence of 18 years was manifestly inadequate for a premeditated, motiveless murder with significant aggravating features
  • Whether, if error was established, the Court of Criminal Appeal should exercise its residual discretion not to intervene, or should resentence the respondent

Decision

Ground 1: Failure to consider community protection

Beech-Jones J found that the sentencing judge failed to grapple with the danger the respondent posed to the community. The killing was apparently motiveless, premeditated, and involved a degree of planning. The respondent's mental health, while a mitigating factor reducing the discount otherwise available, simultaneously pointed to the risk he posed to others. The court found this was a House v The King error in principle: protection of the community is a recognised sentencing purpose and could not be overlooked simply because the respondent suffered from a mental illness.

Ground 2: Manifest inadequacy

The court surveyed comparable murder cases involving offenders with mental illness and concluded that the original sentence fell well below the range. The respondent's case was more serious than comparable cases: the murder was apparently motiveless, involved premeditation (which distinguished it from most comparable cases), and the manner of disposal of the body showed significant contempt for the victim. The respondent's subjective case was especially poor, with youth being the only significant mitigating factor beyond any allowance for mental illness.

Residual discretion

The court declined to exercise the residual discretion against intervention. Beech-Jones J noted that both the error of principle and the public interest in community protection warranted resentencing, and that increasing the sentence would also maintain public confidence in the administration of justice.

Orders Made

  • Appeal allowed
  • The sentence imposed by Hidden AJ on 18 September 2020 was set aside
  • The respondent was resentenced to 28 years' imprisonment (prior to the plea discount), reduced to 21 years after the plea allowance and rounding, commencing 9 June 2018 and expiring 8 June 2039
  • Non-parole period of 15 years and 8 months, with a balance of term of 5 years and 4 months
  • First eligible for release on parole on 8 February 2034

Key Takeaways

  • The Court of Criminal Appeal confirmed that protection of the community is a recognised purpose of sentencing that cannot be overlooked when sentencing for serious offences, even where the offender suffers from a mental illness. Mental illness can simultaneously reduce moral culpability and heighten the danger an offender poses to others, and both considerations must be weighed.
  • A House v The King error was established where the sentencing judge failed to consider community protection at all, not merely where the judge weighed it differently from the appellate court.
  • To succeed in a Crown sentence appeal under s 5D of the Criminal Appeal Act 1912, the Crown must establish House v The King error and negate any reason for the Court to exercise its residual discretion not to intervene. Manifest inadequacy, while relevant to both questions, was confirmed as an additional ground here rather than a strictly necessary prerequisite.
  • Premeditation, apparent absence of motive, and the manner in which a victim's body is disposed of are all relevant to the objective seriousness of a murder and must be properly accounted for in the sentence.
  • In resentencing, the Court applied a discount for the respondent's guilty plea and his youth, but the overall sentence rose from 18 years to 21 years (with the non-parole period increasing from 13 years 6 months to 15 years 8 months), reflecting the gravity of the offending and the assessed risk to the community.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- House v The King (1936) 55 CLR 499
- CMB v Attorney General for NSW (2015) 256 CLR 346
- DPP v Burton [2020] NSWCCA 54
- Manojlovic v R; R v Manojlovic [2020] NSWCCA 315
- Bugmy v The Queen (2013) 249 CLR 571
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Hili v The Queen (2010) 242 CLR 520
- R v Engert (1995) 84 A Crim R 67
- R v Dong [2020] NSWSC 1277 (the sentence under appeal)
- R v Shepherd [2020] NSWSC 141
- R v Ly [2018] NSWSC 197
- R v Edwards (No 3) [2019] NSWSC 1815
- R v Marcus John Lee [2012] NSWSC 1240