DPP v Chen [2013] VSC 296

1 Haiming Chen, you were charged with the murder of Junjie Wang at Clayton on 20 April 2010 to which you pleaded not guilty. After a trial lasting two weeks, a jury found you not guilty of that charge but guilty of the alternative charge of defensive homicide. It is now my responsibility to sentence you for that crime.

2 According to s 5(1) of the Sentencing Act 1991 (Vic), the only purposes for which I can impose a sentence on you are:

• to punish you to an extent and in a manner which is just in all of the circumstances;

• to deter you and other persons from committing offences of the same or a similar character;

• to establish conditions within which it is considered that your rehabilitation may be facilitated;

• to manifest the denunciation of the court of the criminal conduct in which you engaged;

• lastly, a combination of two or more of those purposes.

3 By s 5(2), in pronouncing sentence, I must have regard to the following circumstances, as relevant in your case:

• your culpability and the degree of your responsibility for the offence;

• the impact of the offence on, and the personal circumstances of, the victims;

• the presence of any aggravating or mitigating circumstances.

4 By s 5(3), I must not impose on you a sentence which is more severe than is necessary to achieve the purpose or purposes for which the sentence is to be imposed.

5 By s 5(4), I must not impose a sentence of imprisonment unless the purpose or purposes of the sentence cannot be achieved by another kind of sentence. In the present case, an immediate sentence of imprisonment is called for, as the purposes of the sentence cannot be achieved by a sentence of another kind.

6 Mr Wang, the deceased, was born in 1983 in China. He was aged about 27 years when he died. He was the husband of his wife Jingjing Gao, the only child of his mother Li Gong and the eldest grandson of his grandmother, Xiuqin Chen.

7 Ms Gao met her husband in 2007 in Northern China where they were then living. She came to Australia in August of that year and Mr Wang followed in April of 2009. They were trying to start a new life in Australia. Just before Mr Wang's death, he and Ms Gao had decided to go to Perth so that she could undertake a bachelor's degree in nursing, after first taking a short holiday in Brisbane. Having resolved certain marriage difficulties, they were looking forward to a happy married life together.

8 The death of Mr Wang has had a profound impact on his wife, as described in her victim impact statement. In a very moving way, Ms Gao has told the court how the death of her husband has made her feel deeply sad and depressed and caused her to stop eating. She had to identify his body on her own, which would have been a terrible experience. She has lost the support and companionship of her husband. Their happy life together and future plans have ended. She has not been able to focus on her studies and found the trial process, and having to give evidence, a difficult ordeal. She does not know why you did what you did but does know that her husband did not deserve to die at your hands.

9 Mr Wang's mother, Ms Gong, and his grandmother, Ms Chen, have provided victim impact statements which I have read and considered. In relation to my function of sentencing you, what is relevant in these statements is how important Mr Wang was to his family and how deeply his loss is being experienced.

10 In particular, Ms Gong describes how she has found it impossible to accept her son's death. The emotional blow she has suffered is beyond words. She has lost all meaning in life, had a nervous breakdown, has become very moody and has not been able to communicate with others. She has wandered about searching for her son in the middle of the night. On the advice of her family, she has sought and obtained psychiatric therapy, being thrice hospitalised.

11 Ms Chen states that she has lost her beloved grandson - the most important person in her life. She describes a grandmother's sorrow also as being beyond words.

12 Mr Chen, you are a single man who was born in China on 15 May 1985 and are aged 28 years. You were educated to middle school level in China. There was no work available for you in the province in which you lived. You came to Australia with your brother in 2007. You have no previous convictions and were of good character prior to the offending for which you are now being sentenced.

13 You have suffered head injuries on two occasions in China. The first was relatively minor when your were aged six years. The second was major when you were aged 20 years and has more significance in this case. On that occasion, you were attacked by a gang after refusing to pay extortion money. You were struck to the head with an iron bar and saved only by the arrival of the police. You were unconscious for many days and in hospital for two months during which an operation on your skull was performed. You still suffer from memory lapses, frequent headaches and dizzy spells. The injury has left you with a significant cognitive impairment which is relevant to this sentence in ways which I will later examine.

14 In pronouncing sentence, I must identify the circumstances of the offending in a way which is consistent with the verdict of the jury. The prosecution went to the jury on the basis that you were guilty of the crime of murder. You pleaded not guilty to that crime, as was your right, and you made no plea to the alternative charges of defensive homicide or manslaughter, which you were not obliged to do. As I have said, the jury found you not guilty of murder and guilty of defensive homicide.

15 By that verdict, the jury must have determined that you intended to kill Mr Wang or cause him really serious injury. It must also have determined that it was at least reasonably possible that you genuinely believed that it was necessary to act in self-defence in doing so. In so finding, I think the jury largely accepted the account of the circumstances which you gave in your evidence and which was put by counsel on your behalf. The verdict of not guilty of murder necessarily means that the jury accepted at least the reasonable possibility that you had a subjective belief in the need to act in self-defence, which was the account given by you. However, the verdict of guilty of defensive homicide means that the jury found that you intended to kill Mr Wang or cause him really serious injury and that, objectively, you did not have reasonable grounds for believing that you needed to do so in self-defence.

16 I find that the circumstances of the offending which are consistent with the verdict of the jury are that, about one week prior to the incident, you made a casual inquiry in response to an internet advertisement for the sale of a motor vehicle by the deceased. You did not really want the vehicle but, under pressure from him, ended up buying it for $1500. Mr Wang took advantage of you, intimidated you and threatened you, extorting a further payment of $600 from you. In doing so, he ensured that you saw a knife which he carried on his person and in his vehicle. You feared death or really serious injury at his hands. The evidence of your consultant clinical neuropsychologist, Martin Jackson, was that your cognitive impairment made you especially vulnerable to this kind of pressure, making poor judgments and being unable to deal with such a situation.

17 Your evidence was that you could remember nothing of the incident itself. However, it was established by the evidence, and not contested, that you attended Clayton railway station twice on the morning concerned. On the second occasion, Mr Wang was present and unarmed. In an unprovoked attack in the full view of many witnesses, you stabbed him 14 times, causing his death. You then fled the scene and hid the knife in bushes not far away.

18 The early part of the incident was captured on CCTV. The video shows you rushing at the deceased and stabbing him with a round-house action. Most of the eye-witnesses said you were arguing with him first. You continued the attack after he fell to the ground and defended himself with his arms and legs. However, some witnesses said that your blows were not very heavy, one saying that you were hitting the deceased 'like a girl' and another saying that the blows 'wouldn't have hurt a fly'. You stopped the attack when a student nurse, Ioanna Hatzissavas, who is to be commended for her bravery, called on you to do so.

19 The video evidence showed that you attended the station earlier that morning, apparently looking for someone and holding something to your body. The prosecution urged me to find that you were looking for Mr Wang with a knife on your person and, not finding him, returned later. As such a finding would count as an aggravating consideration, I would need to be satisfied of it beyond reasonable doubt. I am not so satisfied. Moreover, the jury had this evidence and still found that you killed Mr Wang with a knife believing that it was necessary to do so in self-defence. On the evidence of Mr Jackson, your violent attack on Mr Wang was probably triggered by you seeing him at the station. I think the jury accepted that evidence, or at least that reasonable possibility, whatever were the circumstances of your earlier attendance at the station. I will proceed in the same way.

20 Although you attacked Mr Wang in the genuine belief of the need for self-defence, the jury's verdict means that this belief was not reasonably justified in the actual circumstances. After an initial verbal argument in which Mr Wang may have given as much as he got, you set upon him with a knife. The attack occurred in broad daylight at a busy suburban railway station and, to their horror, was witnessed by many innocent bystanders, some of whom gave evidence. From that evidence, it is clear how traumatic they found the incident to be.

21 On the evidence of the forensic pathologist, Melissa Baker, you stabbed Mr Wang 14 times, causing 15 wounds. Many of the wounds were quite minor. However, there were five wounds which were significant in terms of causing death, the most significant being a wound into the pulmonary artery of the heart. Other significant wounds were to the left side of the chest, the abdominal cavity and the left side of the back passing into the chest cavity and a lung. At least moderate force was required to inflict these wounds.

22 The prosecution submitted that I should find that you lack remorse for your criminal conduct because you fled the scene, avoided arrest for many months, moved to Sydney and, after capture by the police, sought to escape. Further, in a private diary and in evidence you described Mr Wang as a 'scumbag' and said 'I just dealt with a bad guy in a wrong way'.

23 In considering this submission, I take into account the evidence of Mr Jackson about the impact of your cognitive impairment on your capacity for empathy. I accept your evidence that the so-called escape attempt was doomed to fail and was actually a reaction to severe headaches which you were suffering and a lack of adequate medication. But taking into account this and the other evidence, including the oral evidence which you gave at the trial, I accept the submission of the prosecution that you are not remorseful for killing Mr Wang.

24 On the other hand, I think it is most unlikely that you will reoffend. You have no prior convictions and were of good character before the stabbing incident. The circumstances in which you offended were, for you, personally overwhelming, highly unusual and not likely to be repeated. From the evidence of Mr Jackson and the other evidence at the trial, I think you have gained some insight into why you did what you did, although I would not want to exaggerate how much. There is little need for the community to be protected from you in the future.

25 According to the applicable sentencing principles, I must take into account the fact that you were at the time and are now suffering from an impairment of your mental functioning due to the brain injury which you experienced in China. It is therefore necessary to identify the nature and extent of that impairment and the contribution which it made to the criminal conduct in which you engaged.

26 The uncontested evidence of Mr Jackson was that the serious head injury which you suffered has left you with impaired cognitive functioning. He found you to have a range of cognitive impairments, including some of a significant nature in the moderate to severe range. These impairments are particularly associated with the damage which you suffered to the front right hand side of the brain.

27 Mr Jackson deposed that your cognitive impairment impacted on your day to day functioning. You are overwhelmed by large amounts of information, have trouble learning new things, make errors of judgment due to poor attention to detail, have trouble working out solutions to new problems and therefore exhibit poor decision-making and are unable properly to foresee the consequences of your behaviour.

28 In Mr Jackson's opinion, there was a causal connection between your neuropsychological condition and the crime which you committed. By reason of your brain injury, you were very susceptible to being used and abused by Mr Wang. You did not have the capacity to resist the pressure which he placed upon you to buy the car and later pay an amount in addition to the sale price. Then you reacted with violence. These two reactions - first submitting then later reacting violently - are symptomatic in people with your condition. It is also symptomatic that you see yourself as having been wronged and have no remorse for your violent behaviour.

29 The jury heard this evidence of Mr Jackson's and must have largely accepted it, as do I. I find that you are now and were at the time of killing Mr Wang suffering from a significant cognitive impairment. There was a causal connection between that impairment and your offending. Consequently, your moral responsibility for the offending conduct, as distinct from your legal responsibility, is reduced. Your condition operates to reduce the punishment which is just in all the circumstances. The sentencing consideration of general deterrence must be sensibly moderated because you are not an appropriate vehicle for making an example to others. Specific deterrence must also be so moderated.

30 While your cognitive impairment operates in mitigation to reduce the sentence which is appropriate, it is important to appreciate that the sentence must reflect all of the circumstances and applicable sentencing considerations, especially the gravity of the offending. The nature and degree of your cognitive impairment, although significant, was not such as to deprive you of the capacity to form a criminal intention. While your mental processes were impaired, you killed Mr Wang in broad daylight in a public place as an act of your own free will. While you believed that your conduct was necessary in self defence, there were no reasonable grounds for that belief and you killed an unarmed man with a weapon while intending to do either that or inflict really serious injury. Those actions deprived Mr Wang of his most elementary human right, his right to life, with grievous personal consequences for his wife, mother and grandmother and deserve the unequivocal denunciation of the court.

31 The crime which you committed was a serious one because it involved the termination of a human life. Thus it carries a maximum penalty of imprisonment for 20 years. Based on a particular assessment of the verdict of the jury and the circumstances, the prosecution submitted that yours was a serious example of that crime, calling for a sentence coming within a certain range. Although I fully understand the basis of that submission, my assessment of the verdict and the circumstances, particularly the impact of your cognitive impairment, calls for a somewhat lower characterisation of the crime, and sentence, than that.

32 As submitted by the prosecution, it is necessary to have regard to current sentencing practices in relation to the crime of defensive homicide. In that context, I have examined R v Smith,[1] R v Edwards,[2] R v Taiba,[3] R v Baxter,[4] R v Trezise,[5] R v Spark,[6] R v Wilson,[7] R v Parr,[8] R v Black,[9] R v Creamer,[10] R v Ghazlan,[11] R v Martin,[12] R v Svetina,[13] Middendorp v The Queen,[14] R v Edwards[15] and R v Talatonu.[16]

33 As these cases reveal, the circumstances in which the offence of defensive homicide may be committed are infinitely variable. Many of the sentences reflect pleas of guilty, whereas you pleaded not guilty. In that connection, your counsel properly raised in your favour the issue of the conduct of your defence. While I have no evidence of any offer on your part to plead guilty to an alternative charge, I do take into account that the manner in which your defence was conducted involved some concession of criminal liability for a charge other than murder. Your defence was conducted with a commendable focus on the real issues in dispute. Where cooperation or agreement could be given, it was. However, you did resist the proposition that you intended to kill Mr Wang or cause him really serious injury, which the jury found proven beyond reasonable doubt.

34 Current sentencing practice very properly reflects the gravity of the offence of defensive homicide, which involves the intentional killing of a human being. But none of the cases I have examined involved cognitive impairment of such nature and degree, and so directly connected with the offending, as in your case. Further, every case must be decided on its own merits, taking into account that the offender did what he or she believed was necessary in self-defence. In sentencing, the circumstances in which that belief was formed are important.

35 In your case, you formed that belief in the period leading up to the day of the stabbing in circumstances where Mr Wang had taken advantage of you and threatened you. Your initial reaction was submissive but that grew into violence which was triggered by seeing him on the morning concerned. Your criminal conduct deserves the denunciation of the court, but must be seen in the context of those circumstances and the impact of your cognitive impairment upon you at the time. Consequently, the sentence should be less than that which would otherwise be warranted. But the sentence cannot be so much less that it represents less than just punishment for a crime which involved the intentional destruction of a human life.

36 It is also necessary to take into account that you will find your time in jail harder than most other prisoners. You are a single and relatively young man with no family support in Australia. You speak practically no English and have a range of health issues, including the brain injury and hepatitis B. Your prison file shows frequent calls for medical assistance, about which your counsel has expressed justifiable concern. You really struggle with the prison system. Your time in prison is, I think, likely to be a lonely and isolated one and I take that into account.

37 Mr Chen, in all of the circumstances, for the crime of defensive homicide against Junjie Wang of which the jury found you guilty, you will be sentenced to a term of imprisonment of eight years. I fix a minimum term of five years before you become eligible for parole. Pursuant to s 18(4) of the Sentencing Act, I declare that the time you have spent in custody in relation to these proceedings is 956 days (not including today) and I direct it to be reckoned as a period of imprisonment already served under the sentence imposed.

[1] [2008] VSC 87 (1 April 2008) (Whelan J) (imprisonment for 7 years; non-parole period of 5 years and 6 months).

[2] [2008] VSC 297 (13 August 2008) (Whelan J) (imprisonment for 10 years; non-parole period of 8 years), found in DPP v Edwards [2009] VSCA 232 (9 October 2009) (Buchanan, Neave JJA and Hansen AJA) to be too low, but not disturbed due to double jeopardy considerations).

[3] [2008] VSC 589 (23 December 2008) (Coghlan J) (imprisonment for 9 years; non-parole period of 7 years).

[4] [2009] VSC 178 (12 May 2009) (Kaye J) (imprisonment for 8 years and 6 months; non-parole period of 5 years and 6 months).

[5] [2009] VSC 520 (31 August 2009) (Coghlan J) (imprisonment for 8 years; non-parole period of 4 years).

[6] [2009] VSC 374 (11 September 2009) (King J) (imprisonment for 7 years; non-parole period of 4 years and 9 months).

[7] [2009] VSC 431 (21 September 2009) (Curtain J) (imprisonment for 10 years; non-parole period of 7 years), upheld in Wilson v The Queen [2011] VSCA 12 (2 February 2011) (Weinberg JA and King AJA).

[8] [2009] VSC 468 (16 October 2009) (Whelan J) (imprisonment for 10 years; non-parole period of 8 years).

[9] [2011] VSC 152 (12 April 2011) (Curtain J) (imprisonment for 9 years; non-parole period of 6 years), upheld in Black v The Queen [2012] VSCA 75 (26 April 2012) (Buchanan, Bongiorno JJA, Hollingworth AJA).

[10] [2011] VSC 196 (20 April 2011) (Coghlan J) (imprisonment for 11 years; non-parole period of 7 years), upheld in Creamer v The Queen [2012] VSCA 182 (16 August 2012) (Weinberg and Bongiorno JJA, T Forrest AJA).

[11] [2011] VSC 178 (3 May 2011) (T Forrest J) (imprisonment for 10 years and 6 months; non-parole period of 7 years and 6 months).

[12] [2011] VSC 217 (20 May 2011) (Curtain J) (imprisonment for 8 years; non-parole period of 5 years).

[13] [2011] VSC 392 (22 August 2011) (Nettle JA) (imprisonment for 11 years; non-parole period of 7 years).

[14] [2012] VSCA 47; (2012) 218 A Crim R 286 (Redlich, Mandie JJA, Whelan AJA) (imprisonment for 12 years; non-parole period of 8 years upheld).

[15] [2012] VSC 138 (24 April 2012) (Weinberg JA) (imprisonment for 7 years; non-parole period of 4 years and 9 months).

[16] [2012] VSC 270 (22 June 2012) (T Forrest J) (imprisonment for 8 years; non-parole period of 5 years and 3 months).