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Age & Sentencing

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Published by Geoff Harrison | 26 August 2023


The age of an offender is a factor that the court can take into account in the instinctive synthesis of sentencing or as special circumstances. Age is specifically mentioned as a factor the court is to have regard to when passing a sentence for Commonwealth offences: as per s16A(2)(m) Crimes Act 1900. The principles relating to age and sentencing are set out in the case of Liu v R [2023] NSWCA 30 (below). Whilst age and health are factors for the court to take into account essentially, age is not a licence to commit an offence and ultimately, the court must impose a sentence that is of a severity appropriate in all of the circumstances. Hence, an appropriate balance is to be struck. The court in R v Sopher stated at 573:


An appropriate balance has to be maintained between the criminality of the conduct in question and any damage to health or shortening of life.


Cases:


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CRIMES ACT 1914 - SECT 16A Matters to which court to have regard when passing sentence etc.--federal offences


Matters to which court to have regard when passing sentence etc.--federal offences

(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.


Note: Minimum penalties apply for certain offences--see sections 16AAA, 16AAB and 16AAC.

.....

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

....

(m) the character, antecedents, age, means and physical or mental condition of the person;

....


The Bench Book comments re age and sentencing can be found here.


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LIU v R [2023] NSWCCA 30 (24 February 2023)


Court of Criminal Appeal


Supreme Court

New South Wales

Case Name:

LIU v R

Medium Neutral Citation:

[2023] NSWCCA 30

Hearing Date(s):

30 November 2022

Date of Orders:

24 February 2023

Decision Date:

24 February 2023

Before:

Adamson JA at [1];


Campbell J at [2];


McNaughton J at [50]


Decision:

(1) Grant leave to appeal on sentence


(2) Appeal dismissed


Catchwords:

CRIMINAL LAW – appeal against severity of sentence – elderly offender – whether sentencing judge failed to properly consider the offender’s advanced age in sentencing – applying principles in Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim 539

Legislation Cited:

Crimes Act 1900 (NSW) s 27


Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A; 54A


Cases Cited:

Betts v R (2016) 258 CLR 420; [2016] HCA 25


Gulyas v Western Australia [2007] WASCA 263; 178 A Crim 539


Holyoak v R (1995) A Crim R 502


House v The King (1936) 55 CLR 499


Kentwell v R (2014) 252 CLR 601; [2014] HCA 37


R v Hunter (1984) 36 SASR 101


R v Mammone [2006] NSWCCA 138


R v McLean [2001] NSWCCA 58; (2001) 121 A Crim R 484


R v Simpson (2001) 53 NSWLR 704


Zreika v R [2012] NSWCCA 44 223; (2012) A Crim R 460


Category:

Principal judgment

Parties:

Zhiyun Liu (Applicant)


Rex (Respondent)

Representation:


Counsel:


T Game SC with E Sullivan (Applicant)


E Balodis (Respondent)


Solicitors:


Legal Aid NSW (Applicant)


Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2020/99385

Decision under appeal:


Court or Tribunal:

District Court of New South Wales

Jurisdiction:

Parramatta

Citation:

Unreported

Date of Decision:

02 July 2021

Before:

O’Rourke SC DCJ

File Number(s):

2020/00099385


HEADNOTE


[This headnote is not to be read as part of the judgment]


Zhiyun Liu (the Applicant), entered a plea of guilty to causing grievous bodily harm with intent to murder, contrary to s 27 of the Crimes Act 1900 (NSW). On 2 July 2021, the District Court of New South Wales sentenced the Applicant to imprisonment for 12 years with a non-parole period of 7 years and 3 months.


The facts of the offending were as follows. The Applicant married the victim, Ming Zhu Lu in 2014. In 2017, Ms Lu was carer to the wife of Xiao Yang. When his wife passed away, the Applicant and Ms Lu resided with Mr Yang. The applicant became jealous of what he perceived to be the victim’s attention to Mr Yang.


Sometime after midnight on 31 March 2020, on his return to bed from the bathroom, the Applicant grabbed a meat tenderiser mallet and a long kitchen knife. When he returned to bed, in a ferocious attack, he hit Ms Lu about her head and face with the mallet. During the attack, Ms Lu awoke. The Applicant stabbed Ms Lu in her sternum and then continued the attack with the mallet. Mr Yang woke from Ms Lu’s cries for help, he saw the Applicant attacking Ms Lu with the mallet and telephoned for help. The Applicant cut his own wrists, with the intention of taking his life. After seeing his wife was still alive, he also slit her wrists. The victim’s injuries were very serious.


The Applicant was aged 81 years and 6 months when he offended and 82 and 8 months at sentence.


The Applicant sought leave to appeal against sentence on one ground: that the sentencing judge erred by failing to apply, or properly apply, principles in relation to advanced age in the sentencing process.


The Court held (Campbell J, Adamson JA and McNaughton J agreeing), granting leave to appeal but dismissing the appeal:


(1) The principles applicable to the significance of advanced age in sentencing expressed by Steytler P in Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim 539 at [54] are nuanced and not capable of mechanical application. Advanced age does not automatically lead to the imposition of a lesser sentence than the objective circumstances require: [40] (Campbell J); (Adamson JA at [1] and McNaughton J at [50] agreeing).

(2) The impact of advanced age on an offender’s imprisonment will usually depend on ‘continuous ill health’ or some other age related state. The Applicant’s overall presentation was that he enjoyed generally good health for his age: [42] (Campbell J); (Adamson JA at [1] and McNaughton J at [50] agreeing).

(3) The impact of advanced age on sentencing is subject to proportionality: the punishment must still fit the crime: [43]-[44] (Campbell J); (Adamson JA at [1] and McNaughton J at [50] agreeing).

(4) Regarding advanced age in mitigation, the sentence judge was only referred to R v Mammone [2006] NSWCCA 138. There advanced age was taken into account by reducing the non-parole period to 60 percent of the head sentence. This is what the learned sentencing judge did: [46] (Campbell J); (Adamson JA at [1] and McNaughton J at [50] agreeing).

(5) The sentence judge taking the applicant’s advance age into account as a special circumstance had a real and direct effect on time to be served. No error of principle or in the application of principle was identified. The appeal was dismissed: [48]-[50] (Campbell J); (Adamson JA at [1] and McNaughton J at [50] agreeing).


JUDGMENT


1. ADAMSON JA: I agree with Campbell J.


2. CAMPBELL J: The applicant seeks leave to appeal from the sentence passed on him in the District Court of New South Wales at Parramatta on 2 July 2021 (O’Rourke SC DCJ) for the offence of causing grievous bodily harm with intent to murder, contrary to s 27 Crimes Act 1900 (NSW). The offence carries a maximum penalty of imprisonment for 25 years and a standard non-parole period of 10 years (s 54A(1) and item 3, table Division 1A Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”)). The learned sentencing judge imposed a sentence of imprisonment of 12 years duration commencing on 31 March 2020 and expiring on 30 March 2032 with a non-parole period of 7 years and 3 months expiring on 30 June 2027, when the applicant will be first eligible for release on parole.


3. The applicant relies upon a single ground of appeal: that the sentencing judge erred by failing to apply, or properly apply, principles in relation to advanced age in the sentencing process.


Background


4. The applicant was born in China in August 1938, and he was aged 81 years and 6 months when the offending occurred sometime after midnight on 31 March 2020. The victim, Ming Zhu Lu was born in April 1947 and was 72 years and 11 months of age. They had married in 2014 after meeting in 2010. It was the applicant’s second marriage. He was a widower when they met.


5. The applicant was sentenced on the basis of agreed facts signed on 3 March 2021 (AF), which her Honour summarised in her reasons for judgment (J). What follows is a summary taken from her Honour’s judgment.


6. After marrying, the applicant and the victim resided together in rented premises. In 2017, the victim became carer of the wife of Xiao Yang, who was a witness in the matter. When his wife passed away, Mr Yang invited the victim and the applicant to reside with him in his home at Ermington, which invitation the applicant and the victim accepted. After moving in, the victim undertook domestic duties around the home.


7. The applicant became jealous of what he perceived to be the victim’s attention to Mr Yang. He regarded Mr Yang as a rich man and had perceived that the victim’s attitude changed toward him after they took residence in Mr Yang’s house. She became cold to him while she was courteous to Mr Yang. The applicant told police after his arrest, “at night [his wife] was [his] wife because they slept in the same bed, however, during the day, [his wife] would be Yang’s wife”. He told police that he had formed the belief that Mr Yang wanted him to leave and the victim to remain. The applicant said he tried to persuade his wife to leave with him, but she refused.


8. On 30 March 2020, the evening before the offending, the victim and the offender retired to their bedroom separately. After midnight, the offender lay awake ruminating over “all the issues with Yang and the victim” (AF 5). He rose to go to the bathroom and as he passed the kitchen on his return, he grabbed the type of kitchen mallet with sharp protrusions used to tenderise meat, and a long kitchen knife. When he returned to the bedroom, he commenced hitting the victim forcibly about her head and face with the mallet.


9. His initial intention was to beat his wife to death with the mallet and then use the knife to kill himself by slitting his wrist. During his attack on his wife with the mallet, which the sentencing judge described as ferocious (J 7), his wife awoke and was calling out for help. The victim sat up in bed and saw the offender armed with a knife pointed at her. He then stabbed her around the sternum, the blade tracking downwards into her abdomen.


10. It seems that the victim was able to disarm the offender of the knife and throw it under the bed. The offender continued to attack her with the mallet causing her to fall from the bed.


11. Mr Yang was roused from his sleep by the victim’s cries for help and tried to intervene. He entered the bedroom, saw the victim on the floor and observed the applicant continuing to attack her with the mallet. He remonstrated with the applicant who chased him out of the bedroom. Mr Yang locked himself in his bedroom and telephoned his daughter who caused her husband to call triple zero.


12. On his way back to the bedroom, the applicant scrawled a message in the Mandarin language on the hallway wall, which was translated as:

“[The victim] used me to obtain her permanent residency and dreamed to be a little tian shun. Old rascal Yang has got money and wanted to forcibly take my wife.”

There is no evidence about the meaning of the reference to “tian shun”. One may speculate that it is a reference to a Chinese emperor of that name. The inscription may have been a form of suicide note because he obtained another knife from the kitchen. Upon his return to the bedroom, he cut his own left wrist with the intention of taking his own life. When he observed that his wife was still alive, he cut both of her wrists with the obvious intent that she should die.


13. The victim’s injuries were very serious. Injuries to her right eye included a blown right pupil and dislocation of the right lens which was surgically replaced. There were significant lacerations about the right eye. The victim also suffered facial fractures to the orbital skeletal structure forming her eye socket, the maxillary area of her face and her nose. She was left with significant facial asymmetry which requires further plastic surgery. The abdominal stab wound was life threatening, involving lacerations to internal organs including the transverse colon mesentery and involving heavy internal bleeding for which the victim underwent treatment by way of laparotomy. From the mallet blows, the victim suffered twenty-one lacerations to the top of her head and two larger wounds to the left frontal aspect of her head and the top of her head respectively. All lacerations required surgical repair. The lacerations to the victim’s wrist were severe involving, on the left side lacerations of the median nerve, radial artery, ulnar artery, muscular lacerations and complete lacerations of the ulnar digital nerve and radial digital artery supplying her left thumb. The extensor tendons and muscles of her right wrist were severed. Her right thumb was lacerated. All of these injuries also required surgical repair. The victim has ongoing median nerve deficits involving a loss of sensation, which exposed her to accidental burns because of a lack of appreciation of changes in temperature.


14. The victim was treated in the intensive care unit at Westmead Hospital until 6 April 2020. She was discharged from Westmead Hospital on 28 April 2020 and transferred to Auburn Hospital for rehabilitation. She remained there until her discharge on or about 20 May 2020. She continued to receive outpatient rehabilitation treatment until 8 October 2020. By then, she had made a good recovery in respect of her right hand injuries with only minor deficits, but with ongoing significant deficits, as I have said, affecting her left hand.


Subjective circumstances


15. The applicant did not give evidence, but his subjective circumstances were put before the District Court by way of the report of Mr Jason Borkowski, Forensic Psychologist, dated 28 June 2021 (Exhibit 1). As there is no challenge to the sentencing judge’s findings of fact, it is unnecessary to summarise that report fully. Rather, I will refer to the findings her Honour made about the applicant’s subjective case. I should say, however, that, as her Honour recorded (J 11), Mr Borkowski expressed the opinion that as a result of the breakdown in his relationship with the victim because of her preference for Mr Yang, as he perceived it, the applicant developed an Adjustment Disorder with disturbance of mood and usual conduct which contributed to his offending. But the sentencing judge rejected this opinion (J 13).


16. The applicant was born in Shanghai, China in 1938 and raised in a stable family as the third in a sibship of six. His father was very strict, disciplining the children with corporal punishment which made the applicant “fearful” of his father in his formative years. However, he maintained contact with both his parents until they passed away; his father in 2001 and his mother in 2008.


17. He lived at home until he married in 1967 at the age of 44. He and his wife had one child, a son, who migrated to Australia in his adulthood. After his wife’s death in 2005, the applicant emigrated to Australia. He was then aged 69. He lived with his son’s family until he married the victim in 2014. A nephew had introduced him to the victim in 2010.


18. After completing his schooling in China, he obtained what appears to be the equivalent of a Bachelor of Engineering in mechanical engineering from the Shanghai Mechanical College. He worked in this profession for an automotive manufacturer until his retirement at age 60. He supported himself in retirement, both in China and in Australia, “through a retirement pension” (J 25).


19. After moving to Australia, he suffered significant orthopaedic injury when he was run over by a car. He underwent a hip replacement in 2009 and suffers backpain and right sided sciatica because of a lumbar disc protrusion. These injuries restrict his mobility. When sentenced he was receiving medication for the management of cardiovascular disease including high cholesterol. He has no past history of mental illness, and as I have said, her Honour rejected Mr Borkowski’s opinion to the contrary.


20. Her Honour accepted the applicant’s statement to Mr Borkowski that he was “regretfully sorry” to the victim and did not understand why he offended. He attempted suicide to “pay [the victim] back with his own life” (J 26). Mr Borkowski assessed the applicant as a low risk of reoffending.


21. The offender pleaded guilty at the earliest opportunity in the Local Court. He has no prior convictions either in Australia or China.


Reasons for sentence


22. Her Honour characterised the offending as “an offence of serious domestic violence where [the applicant] sought to control and dominate his wife, as if he had an entitlement to do so” (J 10). Her Honour found that the offending required denunciation and “condign punishment”. She remarked that the breakdown of a marriage or domestic relationship “cannot be allowed to justify vengeful violence of any kind”. Both general deterrence and specific deterrence had a role to play in the circumstances of the case, the former significantly.


23. Her Honour referred to the maximum penalty, the standard non-parole period, and the provisions of s 21A Sentencing Act. However, while acknowledging that the victim’s injuries “were extraordinarily serious”, her Honour found “no aggravating factors” given there was no evidence from which she could make a finding about prognosis.


24. So far as mitigation is concerned, her Honour referred to the applicant’s entitlement to a 25 percent discount for the utilitarian value of his plea of guilty; his prior good character; and the relatively spontaneous nature of the offending, there being no evidence of planning.


25. Her Honour also referred to the consideration that the applicant was “elderly”. She stated (J 12):

“It is well established that advanced age may affect the type or length of penalty to be imposed and may be relevant, in combination with other facts at sentence, such as health.

...


The extent of any mitigation that results from advanced age will depend on the circumstances of the case, including the offender’s life expectancy and any treatment needed. But age is not a licence to commit an offence.”


Her Honour referred to R v McLean [2001] NSWCCA 58; (2001) 121 A Crim R 484 at [44] where Woods CJ at CL referred to advanced age as a mitigating circumstance. However, his Honour stated that advanced age could not justify a sentence “that is out of proportion to the objective and subjective criminality involved”. There could be no expectation “that the elderly can offend with relative impunity”.


26. Having rejected Mr Borkowski’s opinion that an adjustment disorder contributed to the offending because the diagnosis “dresses up what was really at play” (J 13), her Honour concluded:

“The [applicant] was jealous. He felt rejected and was angry and frustrated. This boiled over and he decided that he would kill his wife and himself and that is what he attempted to do. Whatever term one puts on it, it was rage, jealousy and anger, pure and simple”.


27. The sentencing judge accepted that the applicant’s guilty plea and his expressions of regret and concern for the victim to Mr Borkowski were “some evidence of genuine remorse”. Given his previous “unblemished life”, the ongoing support of his son and family and his age, her Honour accepted that the applicant had good prospects of rehabilitation.


28. The learned sentencing judge assessed the objective seriousness of the offending as above mid-range. In this regard, she took into account: the attack occurred in the middle of the night when the victim was asleep; it involved three weapons, being the meat tenderiser and two knives; it was forceful and ferocious; a large number of blows were struck with the mallet in an ongoing and sustained attack; and the type, nature and number of injuries inflicted (J 7).


29. Her Honour also said she was “cognisant of the fact that the non-parole period ultimately imposed must reflect the objective gravity of the crime, taking into account the subjective features and be ‘the minimum period for which the offender must be kept in detention in relation to the offence’” (J 13).


30. Her Honour, however, made a finding of special circumstances reducing the statutory ratio between the non-parole period and “the head sentence” to one of “just over 60 percent”. Her reasons were (J 14):

“[T]he fact [the applicant] has been in custody since the global pandemic effectively began and restrictions in gaols were introduced, his age, and his limited English, which will cause him some difficulty during his custodial sentence” (my emphasis).


31. It is obvious that her Honour took a notional starting point of imprisonment of 16 years, which she reduced to 12 years for the early plea with a non-parole period of 7 years and 3 months.


Applicant Submissions


32. In advancing the sole ground of appeal, that the learned sentencing judge failed to apply or properly apply principles in relation to advanced age, Mr T Game SC, who appeared with Ms E Sullivan for the applicant, relied in particular on Holyoak v R (1995) 82 A Crim R 502 at 507. He also relied on the distillation of principle by Steytler P in Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim 539 at [54].


33. Learned senior counsel advanced five principal arguments: first, advanced age may put a prisoner at a disadvantage in custody rendering it more onerous; secondly, the prospect of spending the last years of one’s life in custody increases the mental burden of imprisonment quite apart from any physical difficulties; thirdly, the relevance of general deterrence is reduced because the public will appreciate the added burden of a gaol sentence on a prisoner of advanced years; fourthly, there may be little or no need at all for considerations of specific deterrence because of the applicant’s old age and likely circumstances upon release; and fifthly, for an elderly person “each year spent in prison represents a substantial portion of the remaining years of life which [he or she] may expect”: The Queen v Hunter (1984) 36 SASR 101. It was submitted that the authorities indicate that a court should not in effect impose a life sentence which was not otherwise available for the offence or the offender. It was submitted that the sentencing judge did not apply or direct her mind to any of these principles, and indeed contravened them by giving the weight she did to general and specific deterrence. It was argued that her Honour gave no considered contemplation to the significant added burden of custody on a very elderly person. It was put that the mitigatory effects of the applicant’s age “was no peripheral matter”.


34. In oral argument, having referred to the reduction in the statutory ratio allowed by the sentencing judge for special circumstances, learned senior counsel argued [7.37-43T]:

“... if your Honours are with us in respect of error, one way of continuing to recognise the seriousness of this conduct, making proper allowance for the circumstances ... described could involve a reduction of the non-parole period without interfering with the head sentence. And that would serve the purposes of making it understood how serious the conduct is, but then also understanding that the sentencing exercise in this case is a very special and difficult exercise”.


35. Mr Game read the affidavit of his instructing solicitor Danka Durovic affirmed on 10 November 2022 (other than paragraph 3) on the usual basis lest it were necessary for the Court to re-sentence.


Crown submissions


36. Mr E Balodis, Crown Prosecutor, accepted that the relevant principles were correctly stated in Holyoak v R, and Gulyas v Western Australia. However, he emphasised that on the authorities, advanced age did not make considerations such as general deterrence and specific deterrence irrelevant. Nor did the added burden of imprisonment for an aged offender displace proportionality or make it irrelevant.


37. Counsel also pointed out that the argument on appeal in relation to the centrality of the applicant’s advanced age was quite different from the presentation of the plea at first instance. He referred to Zreika v The Queen [2012] NSWCCA 44 223; (2012) A Crim R 460 at [81]. At first instance the emphasis had been placed upon the offender’s good prospects of rehabilitation and his advanced age had been advanced in relation to the question of special circumstances. The sentencing judge accepted these arguments.


38. It was also pointed out that there was no specific evidence about life expectancy before the sentencing judge and although there was material in Mr Borkowski’s report concerning certain orthopaedic injuries affecting the applicant’s mobility, the general thrust of the evidence was that the applicant regarded himself as being in good physical health. It was also put that the sentencing judge acknowledged the significance of the offender’s age during oral submissions (Crown Appeal Submissions at [30]). It was submitted that her Honour was correct to bear in mind the importance of proportionality having regard to the objective seriousness of the offending. There was no error disclosed in her Honour’s treatment of the applicant’s age.


Determination


39. As I have pointed out there is no disagreement between counsel about the relevant principles to be applied. In my opinion they are, with respect, accurately and well summarised by Steytler P in Gulyas v Western Australia at [54]. I will set out the passage in full:

“It seems to me that the following broad general principles might be extracted as being ordinarily applicable in a case such as the present:

(1)Where moral culpability is reduced by reason of advanced age (which will inevitably mean that the advanced age is coupled with some other factor that is a consequence of it, for example when there is an age related mental impairment), allowance should be made for that factor.


(2)Where there is evidence sufficient to justify the conclusion that circumstances associated with advanced age (for example, continuous ill health, or ill health coupled with physical or mental frailty) will make imprisonment more arduous for the offender than is normal, allowance should be made for this.


(3)Account may also be taken of hardship for the offender arising out of his or her knowledge that a lengthy sentence of imprisonment is likely to destroy any reasonable expectation of useful life after release. However, the punishment must still reflect the crime and the seriousness of the offending behaviour may be such that the offender has forfeited the right to any reasonable expectation of useful life after release.


(4)Deterrence and denunciation are important even in the case of an offender of advanced age. However, where there are factors associated with age that justify a more lenient sentence, the general public will understand why the sentence is less severe than might otherwise have been the case and the purposes of deterrence and denunciation will still be served. However, if this is to be achieved, the punishment must still reflect the seriousness of the crime.”


40. In my judgment it is clear from the manner in which Steytler P expressed the principles applicable to the significance of advanced age in sentencing that they are nuanced and not capable of mechanical application. As is obvious, there is no principle that the advanced age of an offender leads automatically to the imposition of a lesser sentence than the objective circumstances of the offending require.


41. Looking at each of Steytler P’s four principles, moral culpability is only reduced on account of advanced age “when there is an age related mental impairment” or the like, of which there was no evidence before the learned sentencing judge. Her Honour rejected the only evidence of a mental condition put before her in the opinion of Mr Borkowski being the diagnosis of an Adjustment Disorder and no complaint is made about her finding in that regard. It was not age related in any event.


42. The consideration that advanced age will make imprisonment more arduous for an offender than is normal will usually depend upon “continuous ill health” or some other age related state as explained by Steytler P. There was evidence before the sentencing judge of pre-existing orthopaedic injuries affecting the applicant’s mobility but his overall presentation was that he enjoyed generally good health for his age. There was certainly nothing to suggest anything amounting to “physical or mental frailty” in the evidence led at first instance. To the extent to which Ms Durovic’s affidavit may provide such evidence on the hearing of the application for leave, we are not entitled to receive that evidence. First, error has yet to be established; and secondly it is not evidence of the applicant’s progress towards rehabilitation of the type usually received for the purpose of re-sentencing after error has been established: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2].


43. Steytler P’s third principle relating to the effect of an offender’s appreciation that a lengthy sentence is likely to destroy any reasonable expectation of useful life after release, upon which much reliance was placed in the case at hand, is expressly made subject to the principle of proportionality: the punishment must still fit the crime. And this central consideration was obviously at the front of the learned sentencing judge’s mind.


44. The same consideration applies to Steytler P’s fourth principle. Deterrence and denunciation remain important, as her Honour found. While the general public may understand a degree of leniency where there are factors associated with age justifying it, this consideration also remains subject to proportionality. As I have said, other than age itself, there was no evidence of a specific age related factor affecting the applicant other than the limitation of mobility due to pre-existing physical injury to which I have referred. This was not a factor which, in my judgment, engaged these principles. In any event, the sentencing judge referred to it and may be taken to have had regard to it.


45. In Holyoak v R while discussing the possible ways in which advanced age might be mitigatory for sentencing purposes, Allen J said (at 507):

“It simply is not the law that it never can be appropriate to impose a minimum term which will have the effect, because of the advanced aged of the offender, that he well may spend the whole of his remaining life in custody.”

This was a case of historical child sexual abuse. Having stated the principles pointing towards possible leniency because of the offender’s age, Allen J concluded however (at 508):


“So objectively horrendous, however, were the crimes for which the applicant fell to be sentenced, particularly considering the breach of trust which it involved, that I find myself unable to say that, assuming that all other matters he took into account were appropriate to be so taken, the severity of the sentences imposed is indicative that his Honour failed to give due weight to the significance of the plaintiff's age.”

The total effective sentence for the offending and the offender imposed at first instance was one of 8 years with a non-parole period of 7 years, available under the prevailing sentencing regime of the time. This outcome is a clear example of the centrality of proportionality in sentencing.


46. The sentencing judge was not referred to either Holyoak v R or Gulyas v Western Australia. The only decision she was referred to concerning the effect of advanced age as a mitigating factor was the Crown appeal in the matter of R v Mammone [2006] NSWCCA 138, where James J (with whom McClellan CJ at CL and Hall J agreed), observed (at [45]), “I would be prepared to accept that the advanced age of the respondent entitled him to some discount in sentencing, on the basis that serving a term of imprisonment would be more than usually onerous for him”. After observing that care must be taken to avoid double counting of mitigating factors in the determination of the length of the sentence and by finding special circumstances by reference to R v Simpson (2001) 53 NSWLR 704 at [63]-[65], his Honour found special circumstances on the basis of the offender’s advanced age and a degree of ill health (at [54]) reducing the non-parole period to 60 percent of the head sentence. This was exactly the approach urged upon the learned sentencing judge by the applicant’s then counsel (MFI 1, Offender submissions 4-5; Sentence Transcript 9.30T; 10.40T). And it is evident that the sentencing judge acceded to that submission.


47. In my own judgment, this approach was open to her Honour. I appreciate that the applicant is entitled to be sentenced according to law: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]–[44]. But what the law required was for her Honour to have regard to the applicant’s advanced age as a mitigating factor. This she did, as the passages from her judgment I have set out above illustrate (at [25] and [30] above). As the passage from Mr Game’s oral submission I have set out above (at [34]) illustrates, it was not necessary that the sentencing judge’s consideration of the factor had a demonstrable effect upon each of the components of the sentence imposed. As in R v Mammone, it was permissible for her Honour to have regard to advanced age as a special circumstance serving to reduce the minimum time that the applicant would otherwise have to serve in a measurable way. Treating advanced age, as the sentencing judge was asked to do, as a special circumstance avoided any double counting in his favour but had a real and tangible effect upon the minimum time he will be required to serve. This is entirely consistent with the approach that Mr Game urged upon the Court at the hearing of this appeal.


48. As the plurality said in Kentwell at [42]:

“As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be “warranted in law”.

It is only if the Court of Appeal is persuaded of House v the King (1936) 55 CLR 499 at 505 error at first instance that it is required to exercise the sentencing discretion afresh to determine whether the sentence passed below is warranted in law. It is, of course, not to the point that another judge, without error, may have taken the applicant’s advanced age into account in a manner different from the sentencing judge and arrived at a lesser sentence. This does not suggest her Honour’s approach is affected by error. It is merely a necessary incident of the discretionary nature of the sentencing task. Taking the applicant’s advanced age into account as a special circumstance, in my view, was not to treat it as a “peripheral” issue. I repeat, her Honour’s approach permitted the applicant’s advanced age to have a real and direct effect on the time to be served. I am not satisfied that error has been established.


49. For these reasons the orders I propose are:

(1) Grant leave to appeal on sentence;

(2) Appeal dismissed.


50. McNAUGHTON J: I agree with Campbell J.

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