Liu v R [2023] NSWCCA 30

Liu v R [2023] NSWCCA 30 · Read the judgment on AustLII

Catchwords: 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 them had ongoing consequences.

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, he 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.

Campbell J (with whom Adamson JA and McNaughton J agreed) observed that 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, allowance should be made where:

• moral culpability is reduced by reason of advanced age.
• evidence establishes that advanced age will make a prison sentence harder.
• 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
• 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).

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 cannot be said that it is never 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.