New South Wales Court of Criminal Appeal CITATION: Woon v Regina [2010] NSWCCA 335 HEARING DATE(S): 8 December 2010 JUDGMENT OF: Simpson J at 1; Blanch J at 2; Garling J at 22 EX TEMPORE JUDGMENT DATE: 8 December 2010 DECISION: Refuse application for leave to appeal. CATCHWORDS: CRIMINAL LAW - no question of principle LEGISLATION CITED: Crimes Act 1900, s33(1)(a), s23(2)(b) Criminal Appeal Act 1912, s6(3) CATEGORY: Principal judgment CASES CITED : R v Hemsley [2004] NSWCCA 228 PARTIES: Hin Sang Woon (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2009/7740 COUNSEL: W Roser QC (Applicant) P Ingram SC (Respondent) SOLICITORS: Lloyd Truman Sadiq Solicitors (Applicant) S Kavanagh, Solicitor for Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/7740 LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ LOWER COURT DATE OF DECISION: 5 March 2010 LOWER COURT MEDIUM NEUTRAL CITATION: R v Hing Sang Woon IN THE COURT OF CRIMINAL APPEAL CCA 2009/7740 SIMPSON J BLANCH J GARLING J 8 December, 2010 Hin Sang WOON v Regina JUDGMENT 1 SIMPSON J: I agree. 2 BLANCH J: This is an application for leave to appeal against a sentence imposed in the District Court on 5 March, 2010. The applicant entered pleas of guilty to two counts of wound with intent to cause grievous bodily harm contrary to s33(1)(a) of the Crimes Act 1900, which carries a maximum penalty of 25 years and has a standard non-parole period of seven years. He was originally charged with two counts of wound with intent to murder but the alternative counts under s33(1)(a) were accepted by the Crown in full discharge of the indictment. He was sentenced on the first count to a non-parole period of five years to commence on 28 August, 2008 with an additional term of three years. On the second count he was sentenced to a non-parole period of five years to commence on 28 August, 2010 with an additional term of three years. The total sentence was one of ten years with a non-parole period of seven years. The facts 3 At about 7.40 a.m. on 28 August, 2008 the applicant went to the home of the victims with a gift of food for the victims, he was admitted to the house. The female victim, who was aged 71, took the food into the kitchen and the applicant followed her. She had her back to the applicant who stabbed her in the left shoulder, then the back and then the head. He continued to stab her with what was subsequently found to be half of a large pair of kitchen scissors. She was able to run out of the kitchen and out the door screaming for help. 4 The female victim's husband, who was 80 years old and who was a wheelchair bound invalid, was in the bathroom on the lavatory. He heard his wife screaming and shouted out to her. The applicant ran into the bathroom and began stabbing him. He tried to defend himself and kick out at the applicant. Neighbours came to their rescue and the applicant left the house and threw the weapon into a rubbish bin. He then went to the bank, withdrew a large sum of money and bought a ticket to Hong Kong. He was arrested in Hong Kong and subsequently extradited to Australia. 5 Both victims were taken to hospital. The female victim suffered ten stab wounds, two to the head, five to the back of the head, two between the neck and shoulder and one to the abdomen. It was estimated she had lost between one and one and a half litres of blood. She also suffered a fractured finger during the attack. Doctors considered two of the wounds to be life threatening. One of the wounds was a five centimetre long wound to the head which required stitches. Another was a wound to the shoulder which penetrated at least nine to ten centimetres into the left shoulder blade and entered the lung and, as a consequence, she suffered a haemopneumothorax. The wound to her right upper chest was 2.5 centimetres deep. She spent eight days in hospital. 6 The male victim had three stab wounds to the left shoulder, all of which were less than one centimetre deep, three to the right scalp considered to be superficial, a wound to the left upper arm, another to the back of the right hand and a laceration on the left wrist. The chest wound was at a position between the second and third intercostal space and was considered to be potentially life threatening. This wound penetrated between five and nine centimetres in depth and caused his lung to collapse. He remained in hospital until 13 October, 2008. 7 The applicant at the time was 74. The female victim and the applicant had known each other through their mutual association with the Hainan speaking Chinese community. The claim made by the applicant was that he had been the subject of rumours spread by the victim that he was having an affair with another Chinese woman. The applicant told Police that in 2003 or 2004 he was at Flemington Markets with his friend, Mrs Wang, when they met the female victim. He said the victim said "Is this your lover?" or "Is this your wife?" The victim denied that she had said any such thing. The sentencing judge was sceptical of the account given by the applicant, noting in particular that in the record of interview he said at first he stabbed the female victim because she lifted a wok and he thought she was going to hit him. Subsequently he agreed he stabbed her when she had her back to him and he did so when he was angry. He was questioned about this in the sentence proceedings and the judge noted he prevaricated. Grounds of Appeal 8 The applicant has filed a notice of application for leave to appeal based on 20 grounds. These grounds involve a microscopic examination of every finding the sentencing judge made. Counsel for the applicant was invited to distil these grounds into something more appropriate for the hearing of an appeal against the severity of sentence and 11 grounds are now put forward for consideration. 9 The first ground argues not enough weight was given to remorse and contrition. It is true there were statements of remorse and contrition from the time the applicant was first arrested, but the sentencing judge correctly noted that in expressing remorse the applicant was still justifying his actions by reason of provocation. It should be noted that whatever else may be said about the asserted provocation, it cannot possibly apply to the attack on the male victim in his wheelchair who was doing nothing other than shouting out to support his wife. The judge did note these expressions of contrition and the question of how much weight should be given to his expressions of remorse is one to be determined when deciding the ultimate issue in this case, namely whether any less severe penalty is warranted in law and should have been passed in accordance with s6(3) of the Criminal Appeal Act 1912. 10 The second ground of appeal argued asserts that no weight was given to the expert opinion of Dr Lucas who said the applicant had become depressed in 2008 following a motor vehicle accident and it was highly probable this depression aggravated his concerns and influenced "… both his decision to confront her and the loss of control when he did". The sentencing judge did deal in some detail with Dr Lucas's report but found that Dr Lucas gave no support for his finding other than "… the assertions of the offender". The sentencing judge said: "If the offender was depressed during 2008 and remained so, it is a matter that may have a role to play in mitigation of sentence but I am unpersuaded that there was some process operating on the offender's mind at the time of the offence which reduces the objective gravity of his crimes." The submission made is that because of the mental condition of the applicant, general and specific deterrence played a lesser role and it was a circumstance to be taken into account in assessing the objective factors: see, for example, R v Hemsley [2004] NSWCCA 228. Again this is a question which should be assessed when dealing with the ultimate question under s6(3) of the Criminal Appeal Act. 11 The third ground of appeal asserts insufficient weight was given to the applicant's age or health and the hardship that a long term of imprisonment would impose. The sentencing judge did refer to these issues and the question raised in this ground of appeal again is a question to be evaluated in determining whether a less severe sentence is warranted in law. The sentencing judge did note that his age was relevant because he would spend a significant part of his remaining years in prison. She declined to find that his ill health would make a term of imprisonment unduly harsh. It is true that all of those factors need to be considered when arriving at an appropriate sentence but again that is a matter to be considered when applying the test under s6(3) of the Criminal Appeal Act. 12 The fourth ground of appeal is that the sentence for the second offence should not have been made cumulative on the first sentence. In my view that ground of appeal has no merit at all. The second attack was on an invalid who was 80 years of age and in respect of whom there had never been any suggestion he had provoked the applicant. In my view a failure to impose a cumulative sentence would have been an error. The assessment of the degree of the accumulation of the sentence is one for consideration at the end of the day in determining if a less severe total sentence is warranted. 13 The fifth ground of appeal argued is that the sentencing judge did not properly assess special circumstances in setting the non-parole period. The sentencing judge found special circumstances because it was the applicant's first time in prison and that he would need support on his release. It is argued there were other factors which would give rise to a finding of special circumstances but the argument at the end of the day is what reduction there should be in the non-parole period for a head sentence of ten years. The statutory ratio would give rise to a non-parole period of seven years and six months. The effect of the sentence in this case was a non-parole period of seven years. Again that is a factor which needs to be considered when making an assessment under s6(3) of whether or not a less severe sentence is warranted bearing in mind the offences under consideration. 14 The sixth ground argues that insufficient weight was given to the applicant's prior good character, his good prospects of rehabilitation and the fact that he is unlikely to re-offend. The sentencing judge did note his lack of prior convictions and that the offences were out of character. It is somewhat academic to be considering prospects of rehabilitation and the likelihood of re-offending in circumstances where the applicant was 74 at the time of the offence and would be over 80 at the time of his release. No sentence could have been contemplated which would have seen him released significantly before he turned 80 and in this case I do not see a failure to refer to his prospects of rehabilitation is of any significance in the sentencing process. 15 The seventh ground of appeal is that the sentencing judge gave no weight to the severe emotional stress of the applicant. The sentencing judge was in a good position to make an assessment of the extent of any emotional stress on the applicant because of the suggested provocative statements. She rejected the applicant's version of the degree of provocation and stress claimed. She gave reasons for doing so. In my view those reasons were justified and the most that could be said is that the applicant may have had a belief about what the female victim had said and that might explain why he committed the offence. As the sentencing judge observed, other witnesses did not speak of his depression and anxiety at any significant time prior to the offences and the accounts of his anxiety and depression come from him and from what he told Dr Lucas. 16 The eighth ground of appeal argues that her Honour erred in finding beyond reasonable doubt that the female victim had not made provocative statements. The sentencing judge did that for the reasons I have given and it was a conclusion open to her on the basis of finding that the applicant was an unreliable witness even though the applicant's friend Mrs Wang said that four or five years before August, 2008 when she was with the applicant at Flemington Markets the female victim said to the applicant "Is that your lover?" 17 Provocation is no defence to the charges in this case but provocative conduct may be relevant on the question of sentence. Nevertheless it should be borne in mind that provocation is only available as a defence to murder if the conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill or inflict grievous bodily harm – see s23(2)(b) Crimes Act 1900 (NSW). 18 The ninth ground of appeal is that the sentencing judge erred in finding that the applicant was an unreliable witness and therefore could not be accepted. For the reasons given, I believe this conclusion was open to the judge and indeed was a correct assessment. 19 The tenth ground argues that her Honour erred in finding beyond reasonable doubt the applicant took part of a pair of scissors to the property and the offences were planned. As I have observed, the sentencing judge was understandably cautious in accepting evidence given by the applicant. This was in particular because he gave a false account of what occurred when first spoken to by the police and also because when that false account was put to him in cross-examination, he did not want to answer the question. The victims both said that the weapon did not come from their premises and the judge was entitled to find on that basis that the applicant had brought the weapon to the premises. That fact does not suggest any great degree of pre-planning and I do not believe the dispute has any real impact on what is the appropriate sentence. It is submitted that evidence of what the applicant intended to do otherwise on the day the offences occurred would indicate no pre-planning and perhaps they indicate no great degree of pre-planning but it was open to the judge to find that the applicant went to the premises with the weapon with the intention of using it. That is particularly so when he took a gift of food to the house of the victims and began his attack when the female victim was dealing with that food. 20 The last ground of appeal relied upon is that the sentence is manifestly excessive. That ground requires this Court to consider whether the sentence is obviously too great and that a lesser sentence is warranted in law and should have been passed. The major thrust of the argument advanced on behalf of the applicant is that he had become consumed with anxiety because of the suggestion made by the female victim a number of years before, perhaps in 2003 or 2004, suggesting that Mrs Wang was his lover. According to the applicant, that suggestion was raised again by the female victim some months before the offence. The argument is that the stress caused by these matters overcame him and caused him to commit the offences. Even if that evidence were accepted at its highest, I find it difficult to see that the sentences imposed in this case are excessive. Certainly the offences are out of character but the attack on the female victim was prolonged and vicious. The attack on the male victim was without any explanation on an 80 year old man confined in a wheelchair. The stabbing of that victim was also serious. These are offences that carry a standard non-parole period of seven years and maximum sentences of 25 years. The sentencing judge correctly determined it was justified not to impose the standard non-parole period on each charge. However, as I have indicated had the sentencing judge not imposed a cumulative sentence for the second offence, she would have fallen into error. In my view the sentences that have been imposed are very moderate sentences. Indeed longer sentences would have been justified. 21 Even allowing for the fact the applicant was showing greater signs of distress immediately before the offences and that he believed he and his friend were being maligned by the victim, I do not believe any lesser sentences could possibly be warranted and accordingly, I would refuse the application for leave to appeal. 22 GARLING J: I also agree. 23 SIMPSON J: The order of the Court will be as proposed by Justice Blanch. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.