Crown v Accused

2 The maximum penalty for murder is life imprisonment.[1]

3 Your defence at trial was that Ms Zhang had left her own home at around 6:00pm on 1 February 2021 and disappeared, never to return. The jury rejected this account and convicted you of murder. Consistent with the jury's verdict, I am satisfied of the following facts.

4 On 1 January 2021, you and Ms Zhang commenced a relationship after meeting online. Ms Zhang lived with her eight‑year‑old son Jack in Epping. You were living in a share house in Doncaster. During the month of January, Ms Zhang's interest in you waned. She had many other friends and interests, and by late January, had commenced seeing another man, Eric Hung. You, however, had developed strong and possessive feelings for Ms Zhang. At some point in January, you accessed her mobile phone and read her private messages. This made her angry and caused an argument. You told her not to flirt with other men and to stay with you.

5 On the night of 30 January, Ms Zhang asked you to leave her house shortly after dinner, saying she wanted to spend time with her friend Ms Chi, who was also present. Mr Hung then visited Ms Zhang's house later that evening.

6 On 31 January Ms Zhang again asked you to leave early, telling you Jack had school the next day. Mr Hung visited after you left. On this night, you drove back to Epping at approximately 11:00pm and loitered outside Ms Zhang's house for around 10 minutes. I am satisfied that in this time you looked in the carport, likely by looking over the side fence, and saw Mr Hung's red Mercedes parked there. It may be you had read Ms Zhang's mobile phone messages and learned about Mr Hung's attendance that way, or perhaps you were just suspicious. Relevantly, by this point, you knew Ms Zhang was seeing another man and knew what car he drove.

7 On 1 February, you visited Ms Zhang in the morning. The visit was brief and uneventful. At around 1:00pm, Ms Zhang and Ms Chi spoke on the telephone as they often did. Ms Zhang told Ms Chi about Mr Hung and said that she preferred him to you. She told Ms Chi that she did not want to continue seeing you. She said she had invited Mr Hung for dinner, and Ms Chi described her as happy. This was the final time Ms Chi spoke with Ms Zhang.

8 At around 5:00pm, you arrived at Ms Zhang's house. We know Ms Zhang was alive at this time, as at 5:35pm she sent Mr Hung and her parents a video of Jack eating dinner. At 5:57pm, she sent Mr Hung three messages telling him that she would save him some food and he should come around that night. This was the last known telephone communication anyone received from Ms Zhang. Mr Hung did in fact attend later that night. He waited outside in his car and messaged Ms Zhang, but because she never replied, he grew tired of waiting and left.

9 Sometime around 6:00pm, you and Ms Zhang argued. It is likely that the argument was about her not wanting to see you or continue the relationship. It may be that you confronted her about Mr Hung. Whilst I do not know what was said, I am satisfied that you felt rejected, jealous and very angry. You stabbed Ms Zhang multiple times in her chest with a knife. She tried to defend herself, as evidenced by the stab wounds she sustained to her hands and forearms. You murdered Ms Zhang in her bedroom in her own home. Jack was somewhere in the house, likely in the loungeroom watching TV or on his iPad. It seems he did not see or hear the attack, although three months later he told his school teacher he had heard 'punching sounds'. He never said this to police and I am not sure whether Jack heard any part of the attack or not.

10 One aspect of this night that remains unknown is how you came to be in the bedroom with a knife. Many possibilities are open; it may be that you carried it in there, but I am unable to draw any safe conclusions or make a finding about this matter.[2]

11 After killing Ms Zhang, you engaged in a deliberate and determined course of conduct calculated to hide your crime. One of your immediate problems was Jack, who started asking where his mother was. It seems you told Jack that his mother was sleeping, and also that she had gone out and not returned. As Jack later told police, he was confused. You drove Jack around the streets of Epping, pretending that you were looking for his missing mother. At this point, Ms Zhang's body was still in the house, probably in the laundry cupboard.

12 You also set about cleaning the scene. You washed the bedsheets, and you cleaned or disposed of the knife. No murder weapon was ever found. You turned off Ms Zhang's phone at around 8:00pm, and later disposed of it altogether. You continued to call Ms Zhang's phone so there would be a record of attempted calls from you to her, consistent with your story that she had just disappeared.

13 At around 8:20pm you telephoned your housemate, Mr Chan. You said it was an emergency and requested he come at once to Epping. Mr Chan did as you asked and arrived at around 9:20pm. You told him that you had argued with your girlfriend because she kept bringing other men home, and you were so angry that you lost your mind and killed her. You said that you had cleaned the scene and put Ms Zhang's body in the laundry cupboard. You invited him to have a look, but Mr Chan was scared and refused. You then asked Mr Chan if he had seen a red Mercedes outside and told him that the car belonged to Ms Zhang's other boyfriend. You told him that the body was getting stinky and after the child went to bed, you would put the body in the bin.

14 Jack was still awake at this time and, at your direction, you and Mr Chan were speaking in Cantonese as Jack understood Mandarin. You asked Mr Chan to go outside and look for a rubbish bin and he used that opportunity to leave and not return. You tried calling him in excess of 90 times over the next several hours but he did not answer. You waited until Jack had gone to bed and returned home to Doncaster to try and find Mr Chan, but he had not returned home out of fear and was instead at the casino. You then returned to Epping. The journey from Epping to Doncaster took you through the Heidelberg area, and I am satisfied this is how you learned it was bin night in parts of Heidelberg.

15 Having failed to recruit Mr Chan, you disposed of Ms Zhang's body yourself by wrapping it in a blanket and placing it in one of her wheelie bins. You drove the bin to Heidelberg West and left it for collection. The next morning, you returned to make sure the bin was collected by the garbage truck, retrieved the empty bin and returned it to the Epping property, where you then cleaned it. You also dried the sheets and remade the bed.

16 You then set about lying to Ms Zhang's friends and the police, telling them that at approximately 6:00pm she received a telephone call, after which she left the house wearing a pink dressing gown and carrying only her mobile phone. She asked you to look after Jack and said she would be back soon, but never returned. Several of her friends found this very unlikely. You pretended to be upset and worried about where she could be. On the evening of 2 February, you went with Ms Chi and Kelly's ex‑husband to the Epping Police Station to report her missing. On 4 February, you swore a police statement in which you repeated your false story about what happened to Ms Zhang.

17 By 5 February, you knew police were looking for you and wanted to speak with you further. You turned off your phone and changed your phone number. You did not return home and instead went to stay with a friend. You arranged to meet police but did not keep the appointment.

18 On 7 February, police were on their way to your Doncaster address when they located you by chance walking along a nearby street. You had with you your passport and $3,500 in cash. You were arrested and interviewed, during which you maintained the lie that Ms Zhang had just left the house of her own accord, and feigned concern for her welfare. At the end of the interview, you were released without charge but police retained your passport and your mobile phone.

19 An examination of your phone revealed that on 6 February, you had made three internet searches in Mandarin. You searched, 'how many years for killing a person in Australia?', 'how is stinky garbage disposed of in Australia?' and 'garbage disposal in Australia'. These highly incriminating searches were found by police on 9 February. On 10 February police attended at Melbourne Airport and stopped you from boarding a flight to Adelaide, where you had an onward flight to Perth. I am satisfied your intention was to leave Victoria and, if possible, Australia, in an effort to avoid being arrested by police. Leaving Australia would have been difficult as police had retained your passport. You were charged with the murder of Ms Zhang and remanded into custody.

20 Following a thorough and clever investigation, Detective Russell deduced that Ms Zhang's body had been collected by a particular garbage truck on the morning of 2 February and taken to the Wollert landfill site. The Wollert landfill site is a huge, industrial waste disposal facility. It is also, as emerged during evidence in the trial, a very well managed and highly organised place. Incoming trucks are recorded as they pass through the weighbridge, and the compactor that crushes the garbage is fitted with GPS. As a result, it was possible to isolate the area where Ms Zhang's body was likely to be.

21 The search itself was a significant undertaking involving multiple police members, heavy machinery and employees from the company responsible for managing the site. The search commenced on 15 June. At around midday on 18 June Mr Johnson, who had carefully mapped out the search zone, expressed to police that he believed they were nearing a critical search area. Two hours later, Ms Zhang's body was found. Her body was badly damaged and decomposed but it was whole.

22 An autopsy was performed. Due to the extensive damage sustained by the body, a cause of death could not be determined, but importantly, the forensic pathologist observed at least six stab wounds to the chest area. Defensive wounds on both the right and left arms and hands were also present. Based on this evidence, I am satisfied that you stabbed Ms Zhang at least six times to her chest with a knife, intending to kill her.

23 Jack wrote a short victim impact statement. He misses his mother very much and still hopes that she can come back to him. He is afraid because his mother has gone, leaving him alone. He cries alone at night and cannot sleep. Every day he asks his grandmother where his mother has gone and when she will come back.

24 Kelly's parents both wrote victim impact statements. Her father feels devastated and immensely sad as a result of your crime. Kelly was an only child, and the small family of three were extremely close. She was a good daughter who worked hard at school and was committed to her family. Even after she moved to Australia, she would have contact with her parents every day. She also visited China from Australia, taking Jack with her, or her parents would visit her in Australia.

25 Mr Zhang said that when they received the news that she was missing, they initially felt numb and then very upset. They tried to come to Australia immediately, but due to the Covid‑19 restrictions then in place, they had to quarantine in Sydney before reaching Melbourne. Initially, they thought their daughter had been kidnapped, and would check the letter box every day for a ransom letter. They were prepared to pay any ransom to get their daughter home safely.

26 Mr Zhang said they have found it very hard in Melbourne, as they do not know English and their visas do not permit them to work. They are a working class family, and have spent their savings and lost their business due to spending the last two years in Australia waiting for this matter to conclude. In China, it is customary for the child to provide and care for their parents in their elderly years. They now fear for their future, and worry about how they will survive or who will look after them. They had to wait for the funeral expenses to be covered by Victims of Crime, meaning they were unable to bury their daughter until December 2021. This was something they found very distressing. Mr Zhang said that it breaks their hearts that they have lost their daughter, and Jack will grow up without a mother.

27 Ms Zhang's mother, Ms Li, read her statement to the Court in Mandarin with the assistance of an interpreter. Kelly was her treasured only child. She was a good and filial daughter, and often sent money back to her parents after her life in Australia improved. Ms Li said the news of Kelly's disappearance was like a thunderbolt; they could not understand how she could suddenly disappear. They rushed to Melbourne and their mood sank when they reached the house and saw their grandson, Jack, who was crying every day for his mother. After they learned of the brutal murder, Ms Zhang's grandparents, who are over 80 years old and in China, were sent to hospital for treatment. Ms Li feels that they have completely lost hope and their family is now split between China and Australia. They are still immersed in unspeakable grief, and Jack often calls for his mother in his sleep.

28 Three witnesses involved in the landfill search for Ms Zhang's body provided statements. Mr Anderson, who also gave evidence at the trial, operated the excavator. His fear was always that he may destroy Ms Zhang's body in the course of the search; to this day, he feels lucky that did not happen. He did not know Ms Zhang, but he has been left with a sense of loss and grief not only for her, but for her son Jack and her entire family.

29 Mr Smith was the senior leader of the Wollert landfill team who supported Victoria Police during the search. It was an immense task and those involved felt great pressure and mixed emotions, as they did not want to let anyone down. When her body was found, Mr Smith felt both immediate satisfaction and then great sadness and guilt, because finding her body meant that her son had lost his mother.

30 Mr Taylor led the team who operated the equipment and recovered Ms Zhang's body in conjunction with Victoria Police. He lodged a statement on behalf of the whole team. They understood that they were searching for the body of a young mother who was believed to have been murdered, and everyone was 100% committed to the search. They were both exulted and depressed when Ms Zhang's body was found. Despite not knowing Ms Zhang, the landfill team felt united through the search and, in a strange way, connected to her. Mr Taylor attended Ms Zhang's funeral and contributed to an appeal to support her parents. The whole process has caused immense sadness and a type of vicarious grief for all that were involved.

31 It is plain that not only your crime, but also your post‑offence conduct, has devastated Ms Zhang's parents. They endured months of not knowing where she was, and holding out hope that perhaps she was kidnapped and still alive. Learning that she had been murdered and her body disposed of in a rubbish bin caused them immense grief, pain and suffering. Jack has been left traumatised by his mother's disappearance and death, and heartbreakingly, he still hopes she might return. Your post‑offence conduct impacted not only Ms Zhang's family, but also those tasked with finding her body in difficult circumstances. The impact on the victims in this matter has been profound and enduring.

32 You were born on 1 June 1985 in Kuala Lumpur, Malaysia and are now aged 38. You have an older sister and two younger brothers. Your father works as a truck driver and your mother is retired. Previously, she worked making clothing. Your family is ethnically Chinese and middle class.

33 In 2006, you married your wife who is six years your senior. You have three children, two daughters aged 15 and 11, and a son aged 14. You and your wife have been separated for several years and she has recently commenced divorce proceedings. Apparently, only your sister and father are aware of your current circumstances.

34 Your education was limited to primary school and you finished school aged 12 and a half. You worked in various odd jobs, including car repairs and maintenance and as a street vendor. From age 16, you worked in carpentry making cupboards, cabinets and furniture. You have since worked continuously in this industry, albeit for different employers. You also worked for short periods in Dubai, Vietnam, Kuwait and Indonesia.

35 You arrived in Australia on 1 March 2017, after separating from your wife. A friend who was then living in Sydney introduced you to some people in Melbourne and, through these contacts, you commenced to work in the construction industry here. You worked in the industry for most of the next four years, including during the Covid‑19 lockdowns, and regularly sent money back to your family to support them.

36 You do not suffer any mental health issues and you have no history of drug or alcohol abuse. You have minor health issues that are well controlled with appropriate medication. There is nothing in your personal circumstances or background that explains why you would commit such a terrible crime, and it appears to be entirely out‑of‑character given the life you have led.

37 You were remanded during the Covid‑19 pandemic and as a result, you have experienced more difficult and restrictive conditions in custody, including being confined to your cell when the prisons were locked down. You contracted Covid‑19 twice in prison. On the first occasion, you were very ill, could not breathe comfortably and could not sleep. You mostly remained alone in your cell and received minimal medical care.

38 You have had regular visits from a Prison Chaplain, but your family live in Malaysia and you have received no personal visits. Your sister plans to visit, however even if she does, any visits will be rare. You have studied English while on remand, but your English skills remain very basic, meaning you can only communicate fully with other Mandarin or Cantonese speaking prisoners. You are now working as a visitor centre billet, and you are keen to work and attend more courses if they are available. However, your limited language skills have contributed to your isolation, and you have made no real friends in custody. I accept that your time in prison will be relatively isolated and lonely, and I take this into account by way of mitigation.

39 You arrived in Australia on a visitor visa, and applied for permanent residency. You were granted a bridging visa on 31 May 2017, allowing you to work, and remained on that visa while your residency application was processed. Your application was initially refused and you appealed that decision. On 5 January 2022, the Administrative Appeals Tribunal confirmed the original visa refusal decision, meaning you no longer hold a visa. It is likely you will be deported at the end of your sentence. Your counsel conceded that, in your case, the prospect of deportation does not constitute extra‑curial punishment nor make imprisonment more burdensome.

40 Your counsel argued that the Court 'must' take into account that you are likely to serve the entirety of your sentence, as you tried to conceal Ms Zhang's body in the hope it would never be found.[3] It was somewhat less clear whether your counsel was also submitting that your visa status meant you were less likely to be granted parole, and this too was a matter the Court 'must' take into account by way of mitigation.[4] In any event, in my view both submissions - assuming both were made - are misconceived for two reasons. First, a court fixes a head sentence on the assumption that a prisoner may serve every day of that sentence.[5] Second, I am prohibited from having regard to any possibility or likelihood that the length of your sentence will be affected by executive action of any kind.[6] It was not submitted that your visa status, and your possible reduced parole prospects, would make imprisonment more onerous.[7]

41 The morning of the plea hearing was mostly occupied by the reading of the victim impact statements. Upon resuming after lunch, your counsel informed the Court that you accept the jury's verdict and you now admit, for the first time, that you murdered Ms Zhang. Apparently, having heard the victims' statements and witnessed the pain and grief you have caused, you wanted to do what you could to end that grief by admitting responsibility and acknowledging guilt. Your counsel then put your version of what occurred, which I will not repeat and do not accept. The account was in part self‑serving, particularly insofar as it concerned the location and initial use of the knife. In my view, it dilutes any value that attaches to your late confession, as you still refuse to take full responsibility for what you did that night.

42 Your confession was made after the trial had concluded. Many witnesses had been required to give evidence during the trial, including Jack. Mr Chan's honesty was challenged and he was cross‑examined at length. Ms Zhang's family endured over two years of waiting in Australia for the matter to conclude, and they were not spared the trauma and uncertainty of a criminal trial. You did not facilitate the course of justice, or save the Court or the community the time and expense of a criminal trial. There are good and established reasons why a guilty plea, particularly an early guilty plea, carries great benefit and attracts a significant sentencing discount. Whilst you must not be punished for running a trial, a confession made after a verdict attracts none of the benefits which attach to a guilty plea.

43 The value of a confession that comes after a guilty verdict will depend, in large part, on the circumstances of the case. It may vindicate a complainant.[8] It may be accompanied by an explanation that fills in important missing pieces that would otherwise remain unknown. Here, the prosecution case against you was strong and, in my view, the guilty verdict would have brought considerable relief and closure to Ms Zhang's family and others who were invested in this prosecution. However, I am prepared to find that your confession does bring additional closure and finality to the criminal process. It is no small thing to admit to murder, whatever the circumstances. It is, at last, an acceptance of responsibility by you for your crime, albeit tempered by your partly self-serving version of events. It seems you were moved by hearing first‑hand how much pain and suffering you have caused, which at this late stage is not much, but it is something. [9]

44 Remorse can be a powerful factor in mitigation. It is often expressed through a guilty plea and supported by other material. It may be evidenced by conduct immediately following the crime, such as where an offender makes full and frank admissions to police, or assists with the investigation. Expressions of remorse that appear late, and a long time after the offending, are rightly viewed by the courts with circumspection even when an offender pleads guilty.[10] In the circumstances here, I do not find your late confession is evidence of remorse. At its highest, it may be perhaps the first sign of emerging remorse, but it is difficult to know. I do not accept that you moved from complete denial to genuine remorse during the course of a luncheon adjournment.

45 You have no prior convictions or history of family violence, or indeed any violence. It seems that prior to meeting Ms Zhang, you had led a hard‑working and lawful life. These matters are to your credit. The fact that you now admit your guilt enhances your prospects of rehabilitation and reduces the need for specific deterrence. However, one troubling aspect of this case is that after a relationship of only one month, you became so jealous and proprietorial that, when faced with rejection, you were capable of murder. Overall, your future prospects of rehabilitation are very difficult to assess, but given you now admit to killing Ms Zhang I find that they are at least reasonable and perhaps good.

46 The standard sentence for murder is 25 years' imprisonment.[11] The standard sentence is intended to represent the sentence for an offence 'in the middle range of seriousness', taking into account 'only the objective factors affecting the relative seriousness of that offence'.[12] Pursuant to s 5A(3) of the Sentencing Act 1991, the 'objective factors' are to be determined -

(a) without reference to matters personal to a particular offender or class of offenders; and

(b) wholly by reference to the nature of the offending.

This narrow definition of 'objective factors' ignores a range of matters which a sentencing judge must consider when assessing both the nature and gravity of the offending, and an offender's moral culpability.[13] Those matters, both aggravating and mitigating, must still be taken into account and their significance is not displaced or reduced by the standard sentence regime.[14]

47 The standard sentence, like the maximum penalty, is one factor I must take into account.[15] I am obliged to disregard sentencing practices for murder that pre-date the introduction of standard sentencing,[16] although the principles found in those cases remain of relevance.[17] When fixing a non‑parole period, I must fix a period of at least 70% of the head sentence, unless it is in the 'interests of justice' not to do so.[18]

48 The prosecution accepted that there is no evidence your crime was planned or premeditated. However, it was submitted that there are a number of aggravating features here, and overall the objective gravity of the offence and your moral culpability are both extremely high. The prosecutor referred the Court to four sentencing decisions of this Court. He submitted those decisions had some features comparable to the offending here, but properly acknowledged the limitations of any comparison.[19]

49 Your counsel also submitted that your offending was not premeditated, but rather a spontaneous reaction to an argument. He conceded there are numerous aggravating features in this case. Your counsel referred the Court to four decisions of this Court and one decision of the Court of Appeal, all of which he acknowledged pre‑date the standard sentence regime and are of limited assistance.[20] Additionally, he submitted the decision of Brown[21] was relevantly similar in some respects, albeit the offender in that case pleaded guilty.

50 I have considered the decisions to which both parties referred, and have found them of some assistance, particularly insofar as the standard sentence regime applied. However, no two cases are ever identical, and whilst other cases may provide some guidance, each case ultimately turns on its own unique facts.

51 I accept that your crime was not premeditated or planned, and was likely spontaneous. However, there are a number of matters that aggravate your offending. The first is that it occurred in circumstances of family violence. Your relationship with Kelly had barely commenced, but nonetheless she trusted you, introduced you to Jack and invited you into her life. You learned she was seeing another man through behaviour that would constitute stalking, and I am satisfied you took her life because you felt rejected and enraged. Kelly was entitled to feel safe and protected in her home, but you killed her in her own bedroom, with her young son in a nearby room. This is a serious example of murder and your moral culpability is high.

52 The seriousness of your crime is also significantly aggravated by your actions afterwards. Your actions caused additional distress to the victims, impeded the police investigation and led to Ms Zhang's body lying undiscovered in landfill for four and a half months. This is not a case where your attempt to hide your crime was chaotic, emotional and short‑lived. Rather, you systematically and dispassionately cleaned the scene; disposed of Ms Zhang's body; ensured her phone was never found; lied to Ms Zhang's friends; lied to and then avoided police; and attempted to leave the jurisdiction.

53 The first person you lied to was Jack. You led an eight‑year‑old‑child to believe that his mother had just left without him and vanished, which was simply cruel. You were an adult and his mother's friend, so Jack trustingly drove around with you on a fictitious search for his mother. You also involved Jack in a sham search of the house, where you pretended to look for his mother in different bedrooms. The next morning you drove him to school and continued to lie, telling him that his mother had still not returned. By this point, you had placed Ms Zhang's body in a bin in Heidelberg West, where it was awaiting collection.

54 You attempted to involve the innocent Mr Chan in the disposal of the body. Moreover, you also instructed him to lie to police and, if asked, tell police he attended at Epping to collect a $300 debt. In the days that followed you kept asking Mr Chan whether he had gone to police. Mr Chan gave police the false debt story when he made his first police statement in February, before you were charged with murder. In April, police spoke again with Mr Chan, and this time he made a truthful statement setting out what occurred when he attended at Epping on the night of 1 February. By this time, you were in custody. I am satisfied that Mr Chan initially lied to police because he was scared of you, and worried about what might happen if he crossed you.

55 Mr Chan was an important witness and it is readily apparent why you did not want him talking to police. You had admitted to him that you killed Ms Zhang and told him relevant additional details. It was through Mr Chan in April that police learned two key things. First, you had told Mr Chan that you wanted to put the body in a rubbish bin. Second, when you saw Mr Chan at home later the following day, you told him that you had disposed of the body and watched the body go in to the garbage truck. Police had found your internet searches so they knew you might have disposed of Ms Zhang's body in a bin, but their focus was on industrial and commercial bins. After Mr Chan told the truth, police focussed their attention on domestic wheelie bins, leading them to eventually locate Ms Zhang's body.

56 The manner in which you mistreated Ms Zhang's body and disposed of her in a domestic wheelie bin was callous and disgraceful. You literally treated her as though she was garbage. You were careful to conceal her body in a tightly knotted blanket, reducing the risk that it would be seen at some point by those who empty the bins. Your internet searches of 6 February show that you were anxious to know what would happen to her body, as you likely feared that if it was found, you might be implicated in her murder. Your attempts to hide your crime commenced as soon as you had killed Ms Zhang, and all your actions were taken with the single, selfish aim of protecting yourself and escaping punishment.

57 Murder committed in circumstances of family violence is shockingly common and must be publicly condemned. Just punishment, general deterrence and denunciation are all important sentencing principles when determining the appropriate sentence in this case.

58 Kelly was 33‑years‑old. It was her right to keep seeing you, or see less of you, or leave you altogether if she wished. Yet after just one month, you killed her out of jealousy and anger. Kelly's family are grief‑stricken, and Jack's young life has been changed forever by what you did. This Court is frequently faced with sentencing male offenders who kill their partner or former partner because they are angry, jealous, rejected or aggrieved in some way. Murder in these circumstances is a serious crime and general deterrence is an important sentencing purpose. Through sentencing, the courts must endeavour to send a strong message that such conduct will not be tolerated and offenders - or would‑be offenders - should expect to receive very lengthy terms of imprisonment.

59 I have taken into account all the relevant circumstances, including all matters favourable to you. For the reasons I have been through, including the seriousness of your crime and your post‑offence conduct, the sentence I impose will be higher than the standard sentence.[22]

60 On the charge of murder, you are sentenced to 28 years' imprisonment. I fix a non‑parole period of 23 years' imprisonment.

61 I declare you have served 892 days by way of pre-sentence detention, such period to be reckoned as time already served under this sentence.

[1] Crimes Act 1958 (Vic) s 3(1)(a). Additionally, pursuant to ss 3 and 5(2G) of the Sentencing Act 1991 (Vic) ('the Act'), murder is a category 1 offence for which the Court must impose a term of imprisonment.

[2] Cf DPP Coman [2023] VSC 159, where the offender deliberately secreted the knife in his pocket and then in his shoe prior to stabbing the victim in her home. The sentencing judge found (at [140]) that this evidenced some degree of contemplation and the fatal attack 'did not materialise out of thin air'.

[3] Section 74AABA of the Corrections Act 1986 (Vic) states, in terms, that the Adult Parole Board ('Board') must not make a parole order in respect of a prisoner serving a murder sentence unless the Board is satisfied that the prisoner has cooperated satisfactorily in the investigation of the offence to help identify the location of the body.

[4] In written submissions, after referencing the Corrections Act 1986 (Vic), counsel added '[s]ee also Adult Parole Board, Parole Manual, June 2020 - 8.5 Parole and prisoners who are subject to deportation'. In oral submissions, counsel submitted that because Mr Tan does not have a visa, that impacts on whether he would be granted parole 'as the Parole Board Manual indicates'. Counsel also conceded that any decision concerning parole would be many years in the future and the status of the law at such future time is unknown.

[5] See DPP v Karipis [2005] VSCA 119, [15] (Callaway JA) (citations omitted).

[6] To the extent that counsel relied on R v Dunn [2020] VSC 708, [236]-[237] - a sentence of Croucher J - it is distinguished. In that decision, Croucher J was considering s 74AABA of the Corrections Act 1986 (Vic) and expressly recognised the prohibition found in s 5(2AA)(a) of the Act. His Honour was intending to impose a sentence that saw the prisoner released forthwith, and was concerned that if he imposed a head sentence and a non‑parole period, his intention that the prisoner spend no further time in custody might not be achieved. In the result, his Honour imposed a term of imprisonment combined with a community correction order for a number of reasons, including that it would be of greater benefit to both the community and the prisoner in the longer term.

[7] In Hague v The Queen (2022) 98 MVR 503; [2022] VSCA 17, [28]-[31], the question of whether the applicant's perception of his reduced parole prospects added to the burden of his incarceration arose. Without deciding, the Court at [32] found that in the circumstances of that case, the question was 'subsumed by the other more prominent factors that add to the applicant's custodial burden'.

[8] For example, in a trial involving allegations of historical sexual assault in a familial setting, where the complainant's allegations were disbelieved by some family members and the offender strongly denied the offending, an admission of guilt, even one made after a guilty verdict, may bring considerable relief and vindication to the complainant.

[9] Cf, for eg, R v Basham (Sentence) [2023] VSC 79, [96], where Taylor JA was sentencing a prisoner who had been convicted of murder by a jury and stated: 'Further, you are utterly without remorse. You do not accept the returned jury verdict in what was an overwhelming prosecution case. You continue to maintain that Ms Fraser took her own life. You are unmoved in the face of numerous statements detailing the pain you have caused your children, as well as Ms Fraser's family and her friends, whose lives you have forever scarred.' See also R v Meade [2013] VSC 682, [67].

[10] Remorse is generally given less weight the later it appears, see R v CJK [2009] VSCA 58; (2009) 22 VR 104, 107 [23] (Warren CJ).

[11] Crimes Act 1958 (Vic) s 3(2)(b).

[13] See Brown v The Queen [2019] VSCA 286; (2019) 59 VR 462, 479 [57] ('Brown'), citing McLaren v R [2012] NSWCCA 284, [28]. See also ss 5(2)(c) and (d) of the Act.

[14] See Brown [2019] VSCA 286; (2019) 59 VR 462, 479 [55], where the Court stated that the seriousness of an offence must still be assessed in the conventional way, by considering both objective gravity and moral culpability.

[15] Clarke (a pseudonym) v The Queen [2022] VSCA 89, [27], citing McPherson v The Queen [2021] VSCA 53, [31] (Priest and T Forrest JJA).

[17] Brown [2019] VSCA 286; (2019) 59 VR 462, 464 [4].

[19] The cases referred to in written submissions were R v Cameron [2020] VSC 334; DPP v Coman [2023] VSC 159; DPP v Fairhall [2022] VSC 444. Additionally, DPP v Kingdon [2021] VSC 858 was referred to in oral submissions.

[20] Standard sentencing applies to the crime of murder committed on or after 1 February 2018. The cases referred to were DPP v Kunduraci [2015] VSC 707; DPP v Nguyen [2010] VSCA 31; DPP v Hettiarachchi [2009] VSCA 270; DPP v Kabo [2006] VSC 340; Meade v The Queen; DPP v Meade [2015] VSCA 171.

[21] [2019] VSCA 286; (2019) 59 VR 462.