By Paul Gregoire and Ugur Nedim
After having gone to the bathroom late night on 31 March 2020, Zhiyun Liu returned to bed, equipped with a meat tenderiser and a long knife, and commenced bashing his wife, Ming Zhu Lu, about the head with the mallet and he stabbed her in the sternum and deep in the abdomen.
The couple had married in 2014. In 2017, Lu became the carer of the wife of Xiao Yang, who, after she passed away, asked the elderly couple to move in with him.
Lu took up domestic duties at the new residence and Liu soon became jealous of what he perceived as the attention his wife was giving Yang.
Liu considered that once he and Lu moved into Yang’s home, whom he considered to be a “rich man”, his wife changed. He told police that at night she remained his wife as they slept together, but during the day, she became Yang’s wife. And Liu considered Yang wanted him to leave and Lu to stay.
As her husband viciously bashed her on the night of the incident, Lu’s screams woke Yang. And on Yang entering the room and calling on him to stop, Liu chased him away, and the owner of the premises returned to his room to call his daughter, who had her husband call the NSW police.
Liu was 81 years of age at the time he attacked his wife, while she was 72 at that point. And after the ultraviolent attack, Liu slit his wrists and on realising his wife was still alive, he cuts hers too.
However, despite the extensive nature of the injuries she sustained, Lu survived the attack. And by October 2020, she was receiving outpatient rehabilitation treatment.
“Age is not a licence to commit an offence”
At the earliest opportunity, Liu pleaded guilty to one count of causing grievous bodily harm with intent to murder, contrary to section 27 of the Crimes Act 1900 (NSW), which is an offence that carries up to 25 years imprisonment.
This crime also carries a standard non-parole period (SNPP) of 10 years. An SNPP is a reference point or guidepost for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.
Forensic psychologist Jason Borkowski put it to Parramatta District Court that Liu had suffered adjustment disorder, due to his wife’s apparent preference for Yang and the breakdown of their relationship, as he perceived it. However, NSW District Court Judge Gina O’Rourke rejected this.
Her Honour found that Liu’s offending amounted to “serious domestic violence”, as the accused had “sought to control and dominate his wife, as if he had an entitlement to do so”. And the judge added that these actions required denunciation and ‘condign punishment’, or a sanction to suit the crime.
The sentencing judge found that both general deterrence and specific deterrence had a factor to play in sentencing, and despite the violent nature of the crime, there were no aggravating factors. And her Honour further accepted that the accused was genuinely sorry for his actions.
As for Liu’s advanced age, her Honour explained that this and health can affect “the type or length of the penalty”. However, the extent that this could act as a mitigating factor, depends “on the circumstances of the case, including the offender’s life expectancy and any treatment needed”.
On 2 July 2021, Judge O’Rourke sentenced Liu to 12 years imprisonment, with non-parole set at 7 years and 3 months. This sentence reflected a 25 percent sentencing discount that applied due to the utilitarian value of his early guilty plea.
And her Honour underscored that “rage, jealousy and anger” had been at play in this crime.
Limited time left
Liu then appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 30 November 2022. The defendant did so based on one ground of appeal, which was said to have involved the sentencing judge failing to apply or not properly applying principles in relation to advanced age.
Counsel for Liu raised five points in respect of this: that advanced age is a disadvantage in gaol, that spending later years inside is a mental burden, general deterrence is reduced because the public appreciate the extra burden of age, there’s no need for specific deterrence due to the defendant’s age and that each year the elderly spend in prison is a significant portion of their remaining lives.
In setting out these principles, Liu’s legal team relied on the NSWCCA’s 1995 case Holyoak versus R and the WA Supreme Court’s 2007 ruling Gulyas versus the State of Western Australia.
The Crown prosecutor noted the principles taken from Holyoak and Gulyas had been set out correctly, but he underscored that the authorities do not result in general and specific deterrence not applying and nor does advanced age “displace proportionality or made it irrelevant”.
Further, the prosecution pointed out that the defence didn’t raise advanced age in this way at trial, but rather it focused on the prosect of rehabilitation and the judge had addressed Liu’s advanced age in sentencing and consider it as a special circumstance, so it was considered no error had occurred.
Advanced age sentencing principles
NSWCCA Justice Stephen Campbell outlined that there was agreement regarding the principles relating to the sentencing of those of advanced age, as Liu’s lawyers had set out. His Honour added that Justice Christopher Steytler had provided an accurate summary as part of Gulyas.
According to Justice Steytler the first of four “broad general principles” relating to the sentencing of defendants with an advanced age is that moral culpability can be reduced when it is shown that another factor caused by age warrants this, with a given example being a related mental health condition.
The second principle is that where there is evidence of a condition of old age that causes prison life to be more arduous, this can be factored into sentencing.
The third principle involves the potential to consider the hardship that spending one’s remaining days in prison has upon a defendant. However, this does not remove the requirement that the sentence imposed is proportional to the crime committed.
And the fourth principle underscoring sentencing those of an advanced age is that denunciation and deterrence are important regardless of this. However, if factors associated with age result in a more lenient sentence, the general public understand why, so general deterrence continues to be met.
Justice Campbell explained that the nuanced principles can’t be mechanically applied, while he also highlighted that they don’t automatically result in all defendants of an advanced age receiving lesser sentences, and that moral culpability is only ever reduced in this regard due to mental impairment.
“Taking the applicant’s advanced age into account as a special circumstance, in my view, was not to treat it as a ‘peripheral’ issue,” his Honour found.
“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,” he added. “I am not satisfied that error has been established.”
So, while the appeal was allowed, it was further dismissed on 24 February last year. And NSWCCA Justices Christine Adamson and Sarah McNaughton agreed with their colleagues’ orders.
