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10
Court of Criminal Appeal 24 February 2023

LIU v R

[2023] NSWCCA 30

Assault & violenceDomestic & family violence
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE ELDERLY OFFENDER (2007) 178 A CRIM 539

Citation: Liu v R [2023] NSWCCA 30
Court: Court of Criminal Appeal, New South Wales
Date: 24 February 2023
Judges: Adamson JA; Campbell J; McNaughton J

Background

The appellant, an 81-year-old man, pleaded guilty in the District Court to causing grievous bodily harm with intent to murder, contrary to s 27 of the Crimes Act 1900 (NSW). The offence arose from a violent attack on his wife in the early hours of 31 March 2020. The attack involved a meat tenderiser mallet and a kitchen knife, causing the victim very serious injuries including facial fractures, eye damage requiring surgery, and a life-threatening abdominal stab wound.

The offending was motivated by jealousy. The appellant believed his wife had become emotionally closer to the man with whom they were both residing, and he had formed the view that she preferred that arrangement. After the attack, the appellant also cut both his own wrists and those of his wife with intent to cause her death.

The sentencing judge in the District Court imposed a term of 12 years' imprisonment commencing 31 March 2020, with a non-parole period of 7 years and 3 months. The appellant sought leave to appeal on a single ground: that the sentencing judge failed to properly apply the principles governing advanced age as a mitigating factor in sentencing.

  • Whether the sentencing judge failed to apply, or correctly apply, the principles relating to advanced age when imposing sentence
  • Whether advanced age requires a demonstrable reduction in each component of the sentence imposed
  • Whether the sentencing judge's treatment of advanced age as a special circumstance (reducing the non-parole period relative to the head sentence) was a legally sufficient approach
  • Whether error of the kind identified in House v The King (1936) 55 CLR 499 was established

Decision

Campbell J (with Adamson JA and McNaughton J agreeing) dismissed the appeal. The Court accepted that advanced age is a recognised mitigating factor, but confirmed that its principles, as expressed in Gulyas v Western Australia [2007] WASCA 263, are nuanced and cannot be applied mechanically. Advanced age does not automatically produce a lesser sentence than the objective circumstances of the offending would otherwise require.

The Court noted that the impact of advanced age on the conditions of imprisonment typically depends on continuous ill health or some other age-related condition. Here, the appellant's overall health was found to be generally good for his age, limiting the weight this consideration could carry.

The Court also affirmed that proportionality remains a constraint. The sentence must still fit the seriousness of the crime, regardless of the offender's age. The objective circumstances of this offence were grave: a ferocious, sustained attack on a sleeping victim, followed by a deliberate attempt to ensure her death.

The sentencing judge had been referred to R v Mammone [2006] NSWCCA 138, in which advanced age was taken into account by reducing the non-parole period to 60 per cent of the head sentence. The sentencing judge adopted precisely that approach, treating advanced age as a special circumstance that produced a real and tangible reduction in the minimum time the appellant would be required to serve. The Court found this was consistent with the authorities and disclosed no error in principle or in the application of principle.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Advanced age does not automatically entitle an offender to a lesser sentence than the objective gravity of the offence would otherwise require; the principles from Gulyas v Western Australia require nuanced, case-specific application.
  • The mitigating effect of advanced age on a custodial term is typically tied to conditions such as continuous ill health or other age-related states; good general health for one's age limits the weight of this factor.
  • Proportionality operates as a constraint even where advanced age is established as a mitigating factor: punishment must remain commensurate with the crime.
  • Treating advanced age as a special circumstance to reduce the non-parole period below the standard ratio is a permissible and legally sufficient approach, provided it produces a real and direct effect on time served.
  • No error under House v The King was established merely because another sentencing judge, without error, might have applied the same factor differently and arrived at a shorter sentence; that outcome is an ordinary incident of sentencing discretion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 27
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 54A

Cases:
- Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim 539
- House v The King (1936) 55 CLR 499
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- R v Mammone [2006] NSWCCA 138
- Betts v R (2016) 258 CLR 420; [2016] HCA 25
- Holyoak v R (1995) A Crim R 502
- R v Hunter (1984) 36 SASR 101
- R v McLean (2001) 121 A Crim R 484
- R v Simpson (2001) 53 NSWLR 704
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460