Wang v R [2021] NSWCCA 282

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Wang v R [2021] NSWCCA 282 Hearing dates: 1 November 2021 Decision date: 01 December 2021 Before: Meagher JA at [1]; R A Hulme J at [2]; Davies J at [123] Decision: 1. Leave to appeal against sentence granted. 2. Appeal against sentence dismissed. Catchwords: CRIME – sentence appeal – murder – domestic violence –ex-partner fell from fifth floor balcony when fleeing fight – subsequent stabbing caused death – intention to kill – premeditation – applicant suffered Major Depressive Disorder with melancholic features at time of murder - guilty plea CRIME – sentence appeal – new evidence – expert opinion by forensic psychiatrist obtained after sentence – post-sentence opinion was said to clarify and supplement previous two reports by same expert – opinion contested judge's finding that applicant's severe depression merely inhibited her ability to restrain herself from acting on an already formed intention to kill rather than playing a part in initial formation of intention to kill – discretion to admit or reject new evidence on appeal – open to sentencing judge to reject expert opinion in face of clear CCTV footage to contrary – initial two reports sufficiently clear – no reason to admit new report – ground rejected CRIME – sentence appeal – new evidence – post-sentence expert opinion contesting judge's finding that applicant's difficult background did not reduce her moral culpability – applicant asserted a causal link between her background and offending – no causal link asserted by psychiatrist in initial two reports – reformulation of case – tenuous argument – ground rejected CRIME – sentence appeal – mistake about sentence in a comparable case – starting point was 30 years, not 30 years and 6 months – sentencing judge acknowledged individual sentencing outcomes are not binding – trivial error – no bearing on exercise of sentencing discretion – ground rejected CRIME – sentence appeal – reasonable consistency of sentence – manifest excess – higher starting point than case with comparable objective severity but less favourable subjective factors – no requirement for numerical equivalence – applicant's arguments antithetical to instinctive synthesis – ground rejected – appeal dismissed Legislation Cited: Crimes Act 1900 (NSW), ss 19A, 23A Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Newman v R [2019] NSWCCA 157 R v Birks (1990) 19 NSWLR 677 R v Cullen [2015] NSWSC 768 R v Mulvihill [2014] NSWSC 443 R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 R v Smith (1987) 44 SASR 587 R v Villaluna [2017] NSWSC 1390 R v Wang [2020] NSWSC 1335 R v Wright (1997) 93 A Crim R 48 RCW v R (No 2) [2014] NSWCCA 190; (2014) 244 A Crim R 541 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 ZZ v R [2019] NSWCCA 286 Category: Principal judgment Parties: Zixi Wang (Applicant) Regina (Respondent) Representation: Counsel: Mr S Odgers (Applicant) Mr B Hatfield with Mr J Sfinas (Crown)