By Paul Gregoire and Ugur Nedim
On 19 April 2014, Ms Soo Jong Kim responded to a knock at the door of the Lidcombe unit she was living in and found Stephen Shine demanding to speak to her husband. Ms Kim told the 58-year-old to wait while she went to the bathroom, but Mr Shine entered and made his way upstairs regardless.
Shine entered the bedroom where Mr Man Sung Lee – Ms Kim’s husband – was asleep with his three children. Shine flew into a rage, produced a knife from his pocket and stabbed Mr Lee in the neck and back.
The wounded Lee made his way outside, but Shine followed and obtained a larger knife from his car. Shine then approached Lee and slashed at his face with the knife. Ms Kim came out and pulled Shine off her husband. “Do you feel sorry now?”, Shine said to Lee.
Neighbours called police, who arrived at the scene and physically removed Shine from Lee’s side.
Mr Shine was taken to Auburn Hospital, where his responses to police questioning were hard to comprehend, although he was heard to say, “I’ve done something bad.” Mr Lee was immediately taken to an operating theatre, where his multiple injuries were found to be life-threatening.
The build-up
Mr Shine was studying nursing at Western Sydney University when he struck up a friendship with fellow nursing student Ms Kim in February 2014. The pair began studying together, and Ms Kim mentioned she was having marital troubles.
Mr Shine misconstrued what Ms Kim meant, believing that her husband posed a threat to her safety.
On 24 March, after Mr Lee learnt about the study arrangements, he called Mr Shine and the pair argued over the phone. This led Shine to drive over to Mr Lee’s residence and call the police, reporting that a domestic dispute was occurring.
When police arrived, they found the two men standing out the front. Mr Shine claimed Lee had a weapon; but officers found nothing on him. Police determined that Ms Kim was not under any threat, and told Shine to leave.
Mr Shine continued to text message the married couple over the following months. Mr Lee sent polite messages asking him to stop messaging, but Shine paid no mind to these.
The District Court trial
Mr Shine appeared in the NSW District Court in 2014, charged with one count of causing grievous bodily harm with intent to murder, under section 27 of the NSW Crimes Act 1900.
The offence carries a maximum penalty of 25 years imprisonment, with a standard non-parole period (SNPP) of 10 years.
An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.
At the trial, Dr Olav Nielssen’s psychiatric report was tendered as evidence by both the defence and prosecution.
The doctor conducted an interview with Mr Shine at the Metropolitan Reception and Remand Centre at Silverwater on 5 December 2014. Dr Nielssen mentioned in his report that the defendant had not initially entered a plea, as he was waiting on the outcome of his psychiatric evaluation.
Dr Nielssen found that Mr Shine had been suffering psychiatric problems for decades, and that during his time in prison correctional officers had reported his “odd behaviours” to the mental health nurse.
The psychiatrist diagnosed Mr Shine with a psychotic illness due to his “delusional beliefs.” He said that although Mr Shine was fit to enter a plea and to stand trial, he had “the defence of mental illness open to him.”
The judgment
In handing down his sentence, District Court judge Garling gave sparse reasons for his decision. His Honour gave a brief summary of the facts, noting that the attack was premeditated, that it was not provoked and that three children had been present.
However, His Honour was not satisfied that Shine had gone to the house intending to kill Mr Lee.
The judge awarded Shine a 20 percent discount for entering an early guilty plea, while noting it was not entered at the earliest available opportunity. A guilty plea at the earliest opportunity normally entitles a defendant to a 25 percent ‘utilitarian’ discount, for saving court time and public expense.
His Honour said he agreed with the prosecution that the defendant showed little remorse towards the victim and his wife.
“I accept… the offender has a disease of the brain in the form of a psychotic illness which produced a defect of reasoning” Judge Garling found. However, the judge reasoned that although the defendant was ill, he was aware that what he was doing was wrong and that he should not have been doing it.
On 4 August 2015, the judge sentenced Mr Shine to 12 years imprisonment, with a non-parole period of 7 years and 6 months.
The appeal
Mr Shine appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA), who heard the matter in June last year.
His lawyers relied upon six grounds of appeal. Chief Justice Bathurst outlined that three of the grounds that were allowed related to errors in the sentencing process, and it was therefore necessary to resentence Mr Shine.
His Honour agreed that the sentencing judge had made an error when finding Shine knew what he was doing was wrong, as this was contrary to the report accepted by both sides.
“If the sentencing judge was to reach a contrary conclusion on a critical matter of this nature, he should have set out his reasons and his failure to do so was an error of law,” Justice Bathurst remarked.
His Honour found the judge had failed to give sufficient “attention to the reduction of moral culpability” arising from the appellant’s mental state.
Judge Bathurst also agreed that the judge should have also considered the impact of the appellant’s mental illness on the burden of incarceration.
“A relevant factor to consider… is the fact that a custodial sentence may weigh more heavily,” on a person suffering a mental condition, he found.
The Chief Justice further found that the sentencing judge made an error by failing to consider Mr Shine’s prospects of rehabilitation, as this is a relevant factor under the sentencing legislation.
Mr Shine re-sentenced
In summing up, His Honour outlined that Mr Shine should have been given the full discount permitted for an early guilty plea, as he hadn’t entered a plea initially “because he was awaiting the outcome of his psychiatric evaluation.” A 25 percent discount was therefore allowed.
In dealing with the ground of appeal that the sentence was manifestly excessive, the Chief Justice noted that the prosecution was “correct in concluding the offence was very serious,” as it was a premeditated attack in front of children that caused life-threatening injuries, and ongoing trauma.
However, he also found that Shine’s moral culpability was lessened by his mental illness, and in having to consider deterring him against reoffending and protecting the public, the success he’d had with the medication he’d started had ameliorated this issue of ‘specific deterrence’.
Due to the “special circumstances” surrounding Mr Shine’s case, the Chief Justice found that “an extended period of supervision following his release to parole” was required. His Honour allowed the appeal and quashed the sentence imposed by the sentencing judge.
“I would sentence the applicant to a term of imprisonment of 9 years… with a non-parole period of 5 years,” the Chief Justice concluded.
