DPP v Li [2015] VSC 598

2 Dong Mei Sun was the sister of your former partner, Lurissa Sun. Like you, Dong Mei and Lurissa were born in China and emigrated to Australia many years ago. Dong Mei had four children with her ex-husband, Ziming Yi. Those children are now all adults and were aged between 22 and 37 years at the time of Dong Mei's death last year. Dong Mei herself was aged 55 years.

3 In July 2014 the families came together to celebrate the 18th birthday of Jack Li, the only child of Lurissa and yourself. Dong Mei ordinarily lived in Sydney but she travelled to Melbourne in the week before the celebration. After staying some nights with one of her sons she moved to stay with Lurissa at her house at 48 Harold Keys Road, Narre Warren. Although separated as a couple, you were also accustomed to staying at Lurissa's house, having a separate bedroom, because you had taken on a greater caring role for Jack and supportive role for Lurissa in recent years. Lurissa is an amputee. Dong Mei's ex-husband, Ziming Yi, also came to Victoria for Jack's birthday. In the days leading to the birthday, you, Dong Mei and Ziming Yi were at the house. You all drank heavily and, due to changed sleeping arrangements with the number of people in the house, you apparently got little sleep.

4 So it was that the two former couples - yourself and Lurissa and Dong Mei and Ziming Yi - together with others, gathered on the afternoon of Sunday, 6 July 2014 at a restaurant in Springvale to celebrate Jack's birthday. A great deal of alcohol was consumed at the restaurant. So much so that yourself, Dong Mei and Ziming Yi were all described as drunk or very intoxicated. Dong Mei required assistance leaving the venue.

5 Arriving at 48 Harold Keys Road just on dark, Ziming Yi was helped onto the couch to sleep, Lurissa went to her room to bed, but you and Dong Mei continued to drink. It is now evident that Dong Mei, Ziming Yi and yourself had long term alcohol consumption habits at a very high level. It had been a factor in the ultimate breakup of Dong Mei and Ziming Yi's marriage and, as I will mention soon, had become your means of coping with a mental health issue. After her death, which I am about to briefly describe, Dong Mei's blood alcohol reading was recorded between 0.3 and 0.33 percent.

6 Sometime after 10.00 pm on that Sunday night Ziming Yi awoke from the couch and went into the kitchen to make some food. You and Dong Mei walked into the kitchen and joined Ziming Yi at the table. It is not clear where each of you had been beforehand. What happened next is mysteriously devoid of any explanatory context or detail.

7 While at the table, you and Dong Mei spoke quietly to one another. In his statement made later to police, Ziming Yi said that Dong Mei had said something that looked as if it made you 'not happy' although, at the committal, he was not so sure about that. But in the next moment it appears you must have obtained a 30 centimetre long serrated kitchen knife and plunged it into the chest of Dong Mei, from the front, with enough force to pierce her sternum bone and penetrate 14 centimetres. You left the room. Ziming Yi did not see or hear it happen, having his head down while he ate. He saw no knife. He was only aware that you had stood up, facing Dong Mei with your back to him, shortly before you left the room. Evidently, Dong Mei made no immediate sound to alert him to what occurred.

8 After you left the room, Dong Mei simply said to Ziming Yi: 'Jian Guo stabbed me'. Ziming Yi did not believe Dong Mei saying that it was impossible. Dong Mei invited Ziming Yi to look at her wound, then stood to walk to the lounge and collapsed. It took some time for an ambulance to be called. Soon after it arrived at 10.45 pm Dong Mei was pronounced dead.

9 After leaving the house you walked to a nearby service station and purchased cigarettes. You were observed to be visibly shaking. After nearly an hour you returned to the premises. By then the police had arrived and cordoned off the area. You approached a police officer, raised your hands in a surrender type pose and said, 'I did it okay, I did it'. Soon after you gestured to where the knife had earlier been discovered by police and asked whether they had found it.

10 The next day in a record of interview you said you wanted to say nothing about the incident or the death of Dong Mei, but wanted to hear the evidence. However, you did say you had found yourself outside, realised you were holding the knife and threw it on the nature strip. You also said you would accept the consequences of the law but you were unable to tell police what happened. You could give no reason for it.

11 You are still unable to give any reason for it. There was no known enmity between yourself and Dong Mei. You are not known to be a violent person when under the influence of alcohol. The incident presents as a bizarre, random, spontaneous act without any evident explanatory context or build up.

12 The maximum penalty for manslaughter is 20 years' imprisonment. In sentencing you I must have regard to that maximum penalty, current sentencing practices, the nature and gravity of the offence, your culpability and degree of responsibility, the impact of the offence upon any victims, the personal circumstances of any victim, whether you pleaded guilty and, if so, at what stage, your previous character and the presence of any aggravating or mitigating factors.

13 The prosecution characterised your crime as one falling within the middle range of gravity for this type of offence. Your counsel urged me to find that it was towards the lower end of the range.

14 This is not a precise science. In support of its characterisation, the Crown pointed to the elements of the use of a weapon (ie a knife), a blow severe enough to pierce bone, the unprovoked nature of the attack, that your victim was seated and drunk and therefore defenceless, and that you departed the scene leaving it to others to attend to Dong Mei's welfare.

15 Your counsel, on the other hand, emphasised that Dong Mei's death was inflicted by a single, spontaneous blow, that you were sleep deprived and heavily influenced by alcohol, that the killing seemed not to have been motivated by any known ill-will, and that, although you departed for a period of time, you did not attempt to avoid responsibility for your actions. It was said that the incident was entirely out of character and that you had no reason to suspect that your drinking might lead you to violent, irrational behaviour.

16 There is no reason to disagree with any of the features or elements put forward by both prosecution and defence. Comparison with other instances of manslaughter, and particularly those like this one involving stabbing with a knife,[1] expose similarities and differences. Of course, the penalties imposed always reflect the synthesis of other relevant factors which also give rise to more points of similarity and difference.

17 Manslaughter by an unlawful and dangerous act can occur in a wide range of circumstances. In my opinion, manslaughter involving the use of a knife, applied directly and forcefully to the chest upon a defenceless victim in an unprovoked attack, cannot sensibly be described as being toward the lower end of the range of gravity. The mystery surrounding your motivation, if there was one, makes the assessment of the gravity even more problematic than usual. But it is difficult to conceive a person deliberately pushing a knife hard into a person's chest without expecting, if not intending, some degree of serious injury. I consider it to be at least in the mid-range for this type of offence.

18 And, clearly, it was an offence for which you were entirely and solely responsible.

19 For understandable reasons explained at the sentence hearing, no family member wished to make a victim impact statement. Of course that does not mean that I fail to take into account the inevitable toll this terrible event will take on the lives of others. You are close enough to all others affected to know what it must mean. Your former partner, Lurissa, was very close to Dong Mei. The emotional conflict she must feel upon the loss of her sister on the one hand, and to your plight on the other, no doubt exacerbates her grief. Jack too must live with those complexities and, while at a relatively young age, become one of your supports in prison. Dong Mei also had another sister, Hong Sun, as well as the four children with Ziming Yi and possibly grandchildren, all of whom will suffer by her death and the knowledge of how it was inflicted.

20 One of the reasons, it seems to me, that crimes causing death must attract a significant penalty is the absolute permanence of its consequence upon the direct victim and the indirect victims.

21 It is accepted that you offered to plead guilty to manslaughter at a very early stage. You did so, through your lawyers, by letter dated 29 September 2014, well before the committal. The Crown accepts - as I do also - that your early plea has utilitarian value, shows an acceptance of responsibility, and is evidence of remorse.

22 Patrick Newton, a clinical and forensic psychologist, wrote a report dated 8 October 2015 after he interviewed you on 26 June 2015 and carried out various psychological evaluation tests. I have read that report. His report is supportive of the proposition that you are genuinely remorseful and have displayed real empathy for your victims.

23 You were 48 at the time of your offending. You have no prior convictions.

24 You were raised in China and came to Australia at the age of about 23. Your family life seemed to be positive. In China you were trained as a clock maker and repairer. In Australia you took up work as a plasterer.

25 You lived at various times in Sydney and in Melbourne before settling in Melbourne from 1996 onwards. It was in that year that you and Lurissa had a relationship resulting in the birth of Jack. You separated from Lurissa early on but, as I mentioned, came back into her and Jack's life more closely in the past three or four years. Jack remains of central importance in your life.

26 Two important features of your life in Australia have a bearing on my sentencing considerations. The first is that, despite having been in Australia for close on 20 years, your ability to speak and understand English remains poor. This has an impact on your capacity to communicate in prison or to receive adequate treatment for the medical issue I will mention next.

27 Secondly, about six years ago, you attempted to break up a fight between two men and, as a result, you were injured in the process. You were left with impaired vision in one eye and impaired hearing in one ear. Mr Newton reports that the incident had a 'severely detrimental effect' upon you. It impacted your work capacity. You then became depressed. Rather than obtain professional assistance, you resorted to alcohol to cope, including to sleep. Your heavy drinking further impacted your work capacity which, in turn, deepened your depression.

28 Of course, the events of 6 July 2014 and your subsequent imprisonment have only exacerbated that depression. Mr Newton is of the view that you meet the criteria for 'Persistent Depressive Disorder (Dysthymia)', which is long standing and not simply reactive to your legal predicament.

29 Your counsel has urged me to conclude that two of the six ways that impaired mental health may be relevant to sentencing apply in your case, namely:

(a) The existence of a condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health (principle 5, R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins')); and

(b) Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment (principle 6, Verdins).

30 I find that there is moderate support in the report of Mr Newton in favour of the application of the first of these principles in your case but little to enliven the second. In respect of the second, Mr Newton merely says that there is some risk your mood could deteriorate in prison following sentence. That does not seem to me to justify a conclusion of a serious risk of a significant adverse effect on your mental health.

31 To the extent you will find prison more difficult than some, it is also likely to be a product of your poor communication skills and isolation from your family. You intend to use your time in prison to improve your English skills, which seems like a very good plan. But I do also note that your inability to communicate in English presently reduces your ability to participate in counselling and therapy to address your depression. I would expect that situation may improve once you are placed in a longer term prison with longer term programs.

32 One outcome of your custody has been that you have abstained from drinking alcohol. It is to be hoped that what Mr Newton describes as 'incipient insight' into the extent of your alcohol addiction and the problems it has led to may be built upon through education, family encouragement and your own reflection. Your genuine remorse, developing insight into your need to abstain from alcohol, lack of criminal history at a mature age, and retained family support are all positive signs for rehabilitation which is to be encouraged so far as possible.

33 Although the obscurity of your motivation leaves a degree of uncertainty, in the end I accept that in sentencing you neither specific deterrence nor community protection is a weighty concern. More prominent are the purposes of general deterrence, denunciation and punishment having regard to the objective gravity of the offence. Your good prospects of rehabilitation and, once out of prison, your probable need for support to deal with difficulty by more positive means than alcohol, together translate most suitably into an allowance for a significant period of supervised parole if the authorities are minded to grant it.

34 In coming to the sentence I have announced I have had regard to the most recent sentencing statistics for this offence together with all of the other factors of the offence and of your character and antecedents.

35 As I am required to indicate, but for your early plea of guilty I would have imposed upon you a longer sentence. I would have sentenced you to 9 years and 3 months imprisonment with a period of 7 years before being eligible for parole.

36 But to repeat, the penalty that I do impose upon you is a term of imprisonment of 6 years and 9 months.

37 I will direct that you not be eligible for parole for a period of 4 years and 3 months.

38 I declare that the period of 481 days, including this day, spent in pre-sentence custody be reckoned as a period of imprisonment already served under the sentence I have just announced.

[1] See for example Kells v The Queen [2013] VSCA 7; DPP v Bryan [2014] VSCA 54; R v Gould [2009] VSCA 130; and Queen v Johnston [2015] VSC 16.