Citation: Shen v R [2024] NSWCCA 252
Court: Court of Criminal Appeal, New South Wales
Date: 20 December 2024
Judges: Kirk JA; Rothman J; Yehia J
Background
The applicant, a 73-year-old man, pleaded guilty in the Local Court to a charge of aggravated detention intending to commit a serious indictable offence (assault occasioning actual bodily harm) causing actual bodily harm, under s 86(2)(b) of the Crimes Act 1900 (NSW). The victim was his 73-year-old ex-wife, from whom he had been divorced for approximately nine years. Despite the separation, the two lived next door to each other in a Gordon apartment.
On the night of 10 September 2022, the applicant knocked on the victim's door carrying mooncakes and an 84 cm solid wooden stick. Once inside, he struck her repeatedly with the stick and his fists, disconnected her landline, took her mobile phone, tied her feet, and covered her with a blanket before leaving. The victim freed herself after three to four hours and called an ambulance. Her injuries included significant facial bruising and swelling, lacerations requiring sutures, and a subdural haematoma (a blood accumulation in the space surrounding the brain).
The District Court sentenced the applicant to five years and six months' imprisonment with a non-parole period of two years and ten months, commencing 11 September 2022. The applicant sought leave to appeal to the Court of Criminal Appeal, contending the sentence was manifestly excessive.
Legal Issues
- Whether the sentence imposed by the District Court was manifestly excessive, such that it was "plainly unjust" or "unreasonable" within the meaning of the relevant appellate principles.
- Whether the applicant's age, psychological conditions, traumatic brain injury history, guilty plea, lack of prior criminal record, and the comparative sentences in analogous domestic violence cases disclosed error warranting intervention.
Decision
The Court of Criminal Appeal granted leave to appeal and allowed the appeal. Rothman J, with whom Kirk JA and Yehia J agreed, found that manifest error had been established and that the sentence was both "plainly unjust" and "unreasonable."
The Court applied the well-established principle from House v The King that appellate intervention is warranted where the sentencing judge acted on a wrong principle, allowed irrelevant matters to affect the result, mistook facts, or imposed a sentence that is unreasonable or plainly unjust. The sentencing judge had assessed the objective seriousness of the offence as being at the top end of the mid-range, which the Court of Criminal Appeal did not disturb.
The Court placed significant weight on several subjective factors. The applicant was 73 years of age at the time of both the offence and sentencing, had no prior criminal record, and was a first-time prisoner. A psychologist's report established that he suffered from Persistent Depressive Disorder with Anxiety (Chronic Depression), and that alcohol had served as a disinhibiting factor at the time of the offending. His history of traumatic brain injury, including a period of unconsciousness lasting over two weeks and more than six months of rehabilitation, was also relevant. These features, taken together, reduced the weight properly given to general and specific deterrence, and the applicant's custodial experience was assessed as weighing more heavily upon him than it would for a younger and healthier offender.
The Court also noted that, in the absence of any prior complaints of domestic violence or a prior criminal record, the applicant's psychological conditions did not require the imposition of a heavier sentence for community protection purposes. After considering the schedule of comparable cases provided by the applicant, the Court was satisfied the original sentence fell outside the available range.
Orders Made
- Leave to appeal granted.
- Appeal allowed.
- Sentence imposed by the District Court on 17 November 2023 quashed.
- Applicant resentenced to imprisonment for a total term of four years and six months, comprising a non-parole period of two years and three months commencing 11 September 2022 and concluding 10 December 2024, with the balance of term concluding 10 March 2027.
- First eligible for parole: 10 December 2024.
Key Takeaways
- A sentence may be set aside on appeal where it is "plainly unjust" or "unreasonable," even without identifying a specific discrete error in the sentencing judge's reasoning, provided the overall result falls outside the available range.
- Advanced age combined with diagnosed psychological conditions and a history of traumatic brain injury are capable of substantially diminishing the weight properly attributed to both general and specific deterrence, even in cases involving serious domestic violence.
- The Court of Criminal Appeal confirmed that custodial sentences weigh more heavily on elderly and unwell offenders, and this bears directly on the appropriate length of a term to be served.
- In the absence of a prior criminal record and any history of prior domestic violence, the existence of a psychological condition does not automatically translate into a need for a heavier sentence on community protection grounds.
- Comparative sentencing schedules can support a manifest excess ground, not by mathematically dictating the correct sentence, but by demonstrating an inconsistency in the application of sentencing principles across similar cases.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 86(2)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- House v The King (1936) 55 CLR 499
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Director of Public Prosecutions (Commonwealth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221