Criminal law: March 2023

Liu v R [2023] NSWCCA 30

Sentencing – advanced age

In this decision the Court of Criminal Appeal (‘CCA’) has confirmed Western Australian authority as to the principles applicable when sentencing an offender of advanced age. Those principles essentially distil to the proposition that advanced age must be taken into account as a mitigating factor on sentence. However, as ever, it is the nuance that makes things interesting.

The applicant was aged 81 years and 6 months at the date of offending. His wife, the victim, became the carer for a man, Mr Yang. The victim and the applicant ended up living in Mr Yang’s house, but the applicant became jealous of the relationship between the victim and Mr Yang. Having ruminated on his feelings of jealousy in bed one night, the applicant committed a brutal assault on the victim, using a metal meat-tendering kitchen mallet and a knife. She had been sleeping and awoke to him beating her with the mallet and was stabbed in the struggle. Afterwards the applicant slit his own wrist intending to commit suicide, and when he noticed that the victim had survived his initial onslaught he slit her wrists as well, intending to finish the job he had started. He was unsuccessful, but the injuries to the victim were life threatening and some of the injuries had ongoing consequences (at [13]).

The applicant was sentenced in the District Court for causing grievous bodily harm with intent to murder. He was sentenced to 12 years, with a non-parole period of 7 years and 3 months. Relevantly, the applicant was 82 years and 8 months old at the time of sentence. He appealed on a single ground, asserting that the sentencing judge misapplied the principles relevant to sentencing an offender of advanced age (at [3]).

Campbell J (with whom Adamson JA and McNaughton J agreed) observed the original argument made on behalf of the applicant at sentence had been that advanced age was relevant in that it would be more onerous for this offender to serve a sentence of imprisonment, in accordance with the decision of R v Mammone [2006] NSWCCA 138. This approach was acceded to by the sentencing judge, and it was open to her Honour to sentence on that basis (at [46]-[47]).

On the other hand, the law is also correctly summarised by Steytler P in Gulyas v Western Australia [2007] WASCA 263, in which four principles were enunciated. In summary, allowances should be made where:

1. moral culpability is reduced by reason of advanced age;
2. there is sufficient evidence to establish that advanced age will make a prison sentence harder;
3. hardship arises out of the offender’s knowledge that the sentence will destroy any reasonable expectation of useful life after release (but noting that punishment must still reflect the crime); and
4. despite the importance of denunciation and deterrence, the general public will understand why the sentence is less severe if there are factors associated with age that justify a lower sentence (so long as denunciation and deterrence can still be achieved) (at [39]).

These principles are nuanced and not capable of mechanical interpretation, and there is no principle that advanced age leads automatically to a lower sentence (at [39]-[40]).

For example, moral culpability is only reduced as a result of age where there is an ‘age-related mental impairment’ or the like. There was no such evidence in the present case (at [41]). Where it is asserted that advanced age will make imprisonment more onerous, whether mitigation is warranted will normally depend on whether there is evidence of ‘continuous ill health’ or some other age-related state; again, this was ultimately not established in this case (at [42]). Where either of the last two principles are relied upon, they are still expressly subject to proportionality (at [43]-[44]). Moreover, authority exists for the proposition that it is not the law that it can never be appropriate to impose a sentence, the practical effect of which is that the offender will spend the rest of their life in custody (at [45], referring to Holyoak v R (1995) A Crim R 502).

The sentencing judge was not referred to these additional authorities, but ultimately what the law requires is for the sentencing judge to treat the applicant’s advanced age as a mitigating factor, which is what she did (at [47]).

The appeal was duly dismissed.

Bhatia v R [2023] NSWCCA 12

Sentencing – sexual offending – relevance of good character or reputation – close friends and family

Where a close friend or family member commits a sexual offence, they may still be entitled to rely on good character despite the statutory exclusion, provided there is no evidence that they used that good character to get access to the victim. As ever, no prescriptive approach can be set out.

The applicant was convicted after a jury trial of one count of sexual intercourse with a child under 10 years (he was acquitted of a second count at trial). The victim was six years old. The applicant was a long-time family friend of the victim’s parents – relevantly to this summary, for more than 10 years before the birth of the victim. He would occasionally care for the child while the victim’s parents were at work. The count for which he was convicted related to one such occasion when he was caring for the victim, when he put his penis in the victim’s mouth. The victim complained of the relevant event that same night.

The applicant was sentenced to 10 years, with a non-parole period of 6 years. He appealed against both his conviction and sentence, although this summary deals only with the ground dealing with sentencing (plainly enough, then, the conviction appeal was dismissed).

The sentencing judge determined that he could not take the applicant’s prior good character into account.

Section 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 provides that, in the context of child sexual offences, good character or lack of convictions is not to be taken into account in mitigation if the Court is satisfied that the factor concerned assisted the offender to commit the offence.

Hamill J (with whom Beech-Jones CJ at CL agreed with some additional reasons; N Adams J agreeing with both) started by stating – ‘emphatically’ ­– that whether s 21A(5A) applies in a given case depends on the facts in that case (at [129]). Following a review of authorities (at [134]-[140]) and taking into account the second reading speech (at [145]-[146]), his Honour observed that in the present case, the applicant was a family friend for many years before the child was born. There was nothing to suggest that he had originally befriended the family to gain access to the (as-yet-unborn) child (at [141]).

The language of the section is quite broad and is apt to catch more offenders than those who trade on their good reputation to gain access to children (at [144]). Obvious examples include priests, politicians, teachers and community leaders. It may also apply to babysitters who get access by providing references attesting to their good character and reputation. It may apply, in some cases, to family friends and relatives, but only where there is evidence going beyond the mere fact of the relationship, and which suggests the good character or reputation played a role in allowing them access to the child or to commit offences. No prescriptive approach can be set out (at [144]). The section requires that there be a misuse by the offender of his or her perceived trustworthiness and honesty, but there was no such evidence in the current case (at [146]).

Beech-Jones CJ at CL, in his additional reasons (with which N Adams J agreed), observed that for the provision to be engaged, the Court must be ‘satisfied’ of the relevant connection between the good character and the offending. In the context of an accusatorial system of justice, that places a practical if not evidential burden on the Crown to point to evidence of the relevant connection. This might require, if the relevant evidence didn’t come out at trial, leading more evidence on sentence, if necessary (at [14]). Here, there was no such evidence (at [15]).

In those circumstances, the sentencing judge erred in applying s 21A(5A), and that ground of appeal was upheld. The applicant was resentenced to 8 years, with a non-parole period of 5 years and 3 months.

Thomas Spohr is a barrister at Samuel Griffith Chambers and a member of the Law Society of NSW Criminal Law Committee.