DPP v Pan [2008] VSCA 283

3 The Director of Public Prosecutions appeals against the sentence imposed on the respondent, Yiwen Pan on 10 December 2007 in the Supreme Court at Melbourne. The respondent was convicted of one count of murder and two counts of theft. The respondent pleaded guilty to all counts. On the count of murdering Juan Zhang on 18 May 2006, he was sentenced to nineteen years' imprisonment. On the first count of theft, that on 18 May 2006 he stole certain moneys belonging to Computer & Parts Land, he was sentenced to one year imprisonment. On the second count of theft, that on 18 May 2006 the respondent stole a Seat Córdoba motor vehicle belonging to Juan Zhang, he was sentenced to one month imprisonment. The sentences on both counts of theft were ordered to be served concurrently with the nineteen years imposed on the murder count. The sentencing judge fixed a non-parole period of fourteen years.

Ground 1:

the sentence imposed in relation to count one and the non-parole period, are each manifestly inadequate.

Ground 2: -

the learned sentencing judge erred by fixing a gap of five years between the head sentence and the non-parole period.

At the hearing of the appeal, the Director abandoned ground two.

Circumstances surrounding the murder and thefts

5 The deceased, Juan Zhang, known as Joanne whilst residing in Australia, was born in Beijing on 22 January 1981. She was a graduate of Beijing's Industrial University. She held the Degree of Business Management with Honours. She moved to Melbourne in 2000, where she completed an accounting degree at Swinburne University and thereafter took up employment as a purchasing officer with the computer business, Computer & Parts Land. She was engaged to be married to Mr Ken Chan. They had planned to marry in 2007.

6 The respondent was born in Shanghai in September 1981. At the age of 20, he moved to Melbourne, where he took up studies at Monash University, studying information technology. He graduated with a Degree from that University in that calling and took up employment as a computer technician with the same company, Computer & Parts Land. Computer & Parts Land is a retail computer supply business. In 1986 at the time of the offences, it had outlets at Notting Hill and at West Melbourne. Its headquarters were based at Notting Hill.

7 Ms Zhang had worked exclusively at Notting Hill until the week of her death. In the week commencing 15 May 2006, she was required to work at the Dudley Street premises in West Melbourne as the temporary store manager. Part of her new duties at the West Melbourne address involved the reconciling of the day's takings and at the close of business delivering the takings to the Notting Hill headquarters. This practice was well known to employees at the Dudley Street branch, including the respondent, who worked there as a computer technician.

8 On 18 May 2006, Mr Tan left the Dudley Street premises some time shortly after 6.00 pm. Ms Zhang left the premises at a quarter to seven that night. She had with her the day's takings of about $9,000 in cash plus cheques and credit vouchers, which she intended to take to the business's headquarters in Notting Hill. Normally, she would leave the premises with a co-worker. On this occasion, there was a minor mishap. Ms Zhang had locked her keys in the premises. She returned, unlocked the business premises and was in the process of returning to her car when her co-worker left in the belief that she would soon be at her motor vehicle and on her way to Notting Hill. As it happened, the respondent was lying in wait for Ms Zhang and the respondent approached her as she reached her car. According to the respondent's record of interview, he engaged her in a short conversation before Ms Zhang warned him that she would contact the police if he did not leave her alone. He said that as she moved away from him he grabbed hold of her. She screamed and attempted to push him away. The respondent, who was armed with a paring knife, grabbed Ms Zhang around the neck and commenced to stab her repeatedly about the head and neck. As the respondent attacked Ms Zhang, she repeatedly screamed. She covered her head with her hands and received a number of defensive wounds to them whilst the respondent continued to attack her until her cries diminished and she could no longer be heard. A number of people in the area heard her screams which gradually subsided. Apparently, some formed the view that what they could hear was a person screaming hysterically in humour. Others formed the view that there was a more sinister aspect to it, but as it was dark it was difficult to ascertain where the screams had come from and so their suspicions were not acted upon.

9 She suffered some thirty four injuries to her head, four to the back of her neck, six to the front of her neck and twenty two injuries around her hands and wrists, with all of these injuries leading to significant blood loss. Indicative of the ferocity of the attack, some of the injuries sustained to her head and neck region were as a consequence of the knife piercing through her hands.

10 The respondent dragged Ms Zhang to the rear of her car and placed her in the boot. From there, he drove the vehicle to Alexandra Street, St Kilda East, a street which runs on the eastern boundary of the St Kilda Cemetery. The respondent in his interview told police that he remained parked at that location until the screams of Ms Zhang stopped. He heard Ms Zhang call out 'Help, help, help'. The respondent told police that during that period of time, he thought that he might take Ms Zhang to a hospital, but ultimately decided to remain parked until he formed the view that Ms Zhang was dead. The respondent told Dr Walton, the consultant psychiatrist, that he actually drove towards St Vincent's Hospital and en route he heard Ms Zhang call out 'help.' The respondent told Dr Walton that he was driving along Nicholson Street and he was forced to stop at traffic lights and he became aware that there was no further vocalisation or movement from Ms Zhang and he concluded she must be dead. The respondent then parked the car and sat in the vehicle 'shaking.' He then drove home and washed himself.

11 In addition to the stab wounds, Ms Zhang suffered a fractured hyoid bone and there were petechial haemorrhages in the eyes and to her lips. According to the pathologist, these injuries were consistent with trauma to the neck caused by compression force to that region. This injury, together with other injuries, caused the death of Ms Zhang. It is unclear at what point of time the injury to the neck was inflicted by the respondent on Ms Zhang.

12 The respondent drove from Alexandra Street to his address in Katherine Street, North Caulfield. He removed his bloodied clothes and washed himself. He placed his clothes into two plastic bags, along with the handle of the paring knife which he had used. The blade of the knife had broken during the attack on Ms Zhang and he had placed it in the boot of her motor car prior to leaving Dudley Street, West Melbourne. He placed the plastic bags with the knife handle and bloodied clothing, as well as the gloves that he had worn during the attack, in a cardboard box which he sealed. He then left his home in Ms Zhang's car and drove back to Alexandra Street and there abandoned her car. He subsequently took a taxi to where he had left his own car in Spencer Street earlier in the evening. Whilst he was in West Melbourne, he received a number of calls on his mobile phone from the management of Computer & Parts Land at Notting Hill who were expecting Ms Zhang and were concerned as to her whereabouts.

13 Subsequently, the respondent drove to the home of his friend, Mr Jin, and there gave him some $3,500, part of the moneys which he had stolen from Ms Zhang. Of that amount, $2,000 was by way of repayment of moneys owed by the respondent to Mr Jin. He requested the balance of $1,500 be placed in Mr Jin's account and then transferred by Mr Jin to the respondent's account, as a means of concealing the fund's source. The respondent gave Mr Jin a cardboard box containing the bloodied items and also some personal papers and requested Mr Jin that he keep them safely for him without revealing the contents of them to anyone. He left Mr Jin's home and attended at Crown Casino, where he gambled until approximately 3.00 am. At this session he lost approximately $3,300.

14 The respondent attended work on 19 May and was directed by his employer to return home. In his record of interview, he indicated that he was in possession of Ms Zhang's two mobile phones. On the morning of the 19th, one of those mobile phones was located electronically in the North Melbourne area, although the phone was never recovered. The other phone was the source of a text message to the witness, Jenny Zhang. The text message indicated that Ms Zhang needed help and that she was with a white person near the sea. It was the Crown case that the text message was sent by the respondent, although he denied sending it.

15 Over the course of the following weekend, 20 and 21 May 2006, the respondent drove past Ms Zhang's vehicle on a number of occasions. On one of those occasions, on the evening of Sunday 21 May 2006, concerned that the car may have been detected, the respondent opened the boot of the car and partially covered Ms Zhang's body with sand in an attempt possibly to mask the smell of decomposition. At about midnight that night, the respondent drove the vehicle to a friend's place in Foster Avenue, Glenhuntly and requested that the friend store the vehicle in his garage. The friend was told and accepted that the car belonged to a friend of the respondent who had returned to China and required storage for a period of time.

16 The respondent was arrested at about 11.05 pm on Monday 22 May 2006. There were simultaneous searches conducted on his premises and the premises of Mr Jin. Those searches revealed the ignition key to Ms Zhang's Seat motor vehicle at the respondent's home and also resulted in finding the cardboard box with its contents.

17 A video taped record of interview was conducted with the respondent, who initially denied any involvement in Ms Zhang's death. After the investigators revealed the information they had, the respondent admitted that he had been lying to the investigators and made full admissions of his involvement in Ms Zhang's murder. He agreed to accompany the police, in the early hours of 23 May 2006, to the area in which he had parked Ms Zhang's motor vehicle in Alexandra Street, St Kilda East. He also took the police to the friend's premises in Caulfield where Ms Zhang's car was stored. Initially, the respondent asserted that he had been acquainted with Ms Zhang in China, that he perceived that Ms Zhang had slighted him in some way whilst they were both living in Australia and that he had approached her in order to talk to her about that slight. In fact, there was no relationship between the respondent and Ms Zhang in China or at all. The motive in approaching Ms Zhang was to steal the proceeds of the day's takings at the Dudley Street business address. There was a suggestion in the record of interview that gambling may have been a motive for the taking or stealing of the proceeds. Investigations revealed that the respondent earned some $600 per week and that, since March 2005, he had lost approximately $8,000 at Crown Casino and that he had lost some $2,700 in the six weeks preceding Ms Zhang's murder.

18 This Court's function on hearing an appeal against sentence by the Director of Public prosecutions was confirmed in R v Clarke.[1] There this Court confirmed that 'an appeal by the Crown should be brought only in 'the rare and exceptional case' to establish some point of principle.' An occasion may arise for the bringing of a Crown appeal 'where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle' or 'to correct a sentence which is so disproportionate to the nature of the offence as to shock the public conscience.' The Court also confirmed that in dealing with an appeal against sentence including by a prisoner the Court 'is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact.'[2]

Was the sentence and the non-parole period manifestly inadequate?

19 The Director gave the following particulars of the allegation that the sentence imposed and the non-parole period were each manifestly inadequate. He said that in fixing the sentence imposed on count one and the non-parole period, the sentencing judge -

(a) failed to adequately reflect the gravity of the offences generally and in this case in particular;

(b) failed to take into account or sufficiently to take into account the aspect of general deterrence;

(c) failed to take into account or sufficiently to take into account the aspect of specific deterrence;

(d) erred in finding the offences were to a substantial degree a product of the respondent's disturbed mental state;

(e) gave too much weight to factors going to mitigation;

(f) gave insufficient weight to the maximum penalties applicable; and

(g) gave insufficient weight to the principles of denunciation and punishment.

20 The Director contends that by imposing a sentence of nineteen years' imprisonment on the murder count and by fixing a non-parole period of fourteen years' imprisonment, the sentencing judge made an unwarranted departure from the sentencing standard for an offence of this nature and seriousness. The Director submits that in the particular circumstances of this case, each of those sentences was manifestly inadequate.

21 The Director contends that the respondent committed a very serious example of the offence of murder. I do not disagree with that observation. The Director further contends that the respondent utilised knowledge gained as an employee of the company, Computer & Parts Land, to plan and execute an offence involving the taking of a considerable sum of money from a vulnerable fellow employee entrusted with the day's takings. The Director says that, while carrying out that criminal purpose, the respondent launched a ferocious and sustained knife attack on his defenceless female victim. The Director contends that he then knowingly allowed Ms Zhang to suffer what must have been a slow and agonising death. Again, I do not disagree with those observations and would say they are entirely apposite in this case.

22 The Director contends there are a number of aggravating features to the respondent's offending, including inter alia:

(b) the nature and severity of the attack, including the fact that the respondent used his hands to fracture the victim's hyoid bone;

(d) the offence was at least partly motivated by the respondent's determination to succeed in his original criminal purpose;

(e) the respondent's callous disregard of the victim's suffering;

(f) the respondent's efforts to avoid detection, including the deliberate laying of a false trail by sending a text message from the victim's mobile phone; and

(g) lying to the investigating police during the record of interview.

23 I agree that each of those were aggravating features of the respondent's offending. In particular, I agree the murder was motivated in part to conceal his involvement in his theft of the takings. The sentencing judge took these factors into account. He said, amongst other things:

At a critical stage, you produced and used your knife to subdue her. You then stabbed her time after time. It was a ferocious attack. She tried to ward off your blows with the knife. There were more than 30 stab wounds to her head and neck, there were more than 20 to her hands and arms.[3]

24 As to the question of motivation, the sentencing judge said:

What your motivations were for confronting her is not clear. Your motive was not out of any animosity towards Joanne, linked to any history of past dealings. I say that conscious of the suggestion to that effect given by you to the police initially. It is clear now that the suggestion had no basis in fact. Part of the motivation seems to have been money, since you did rob her. Moreover, you had developed something of a habit for gambling. To further that habit you had recently borrowed money. Indeed, later on the night of 18 May, you used part of the stolen money to repay the loan and part to gamble at the casino. But I do not see that it was money alone that motivated you, particularly as you had ample access to funds through your parents. I am disposed to substantially accept the more complex explanation that emerged when you spoke recently to the psychiatrist, Dr Walton. You were depressed and lonely. Your former girlfriend had found another man. Your work was dissatisfying. You perceived that maternal pressure had, to some degree, contributed to your sad state. Joanne was somehow symbolic of what you perceived to be wrong in your life.[4]

25 The sentencing judge did have regard to the callous disregard of the victim's suffering. He said:

Having subdued her, you bundled her into the hatchback area of her own car. You drove the car away. You then took more than one step that aggravated the seriousness of your actions viewed overall. You listened to her attempts to get aid. You sat passively until you were satisfied that she had died.[5]

26 The sentencing judge expressly referred to the deliberate laying of the false trail by sending a text message purporting to be sent by Ms Zhang and accepted that the respondent did send the SMS message. The sentencing judge expressly referred to the fact that he lied to the investigating police.

27 The Director also referred to the fact that the respondent was able to rely in mitigation on the following matters:

(a) he had no prior convictions;

(b) although not a young offender as such, he was relatively young;

(c) he suffered from a major depressive illness, both at the time of the murder and the time of being sentenced;

(d) he had pleaded guilty and shown some remorse; and

(e) he had good prospects of rehabilitation.

28 The sentencing judge took each of these matters into account.

29 The Director contends that insofar as those matters in mitigation were concerned, the weight to be attached to the respondent's plea, remorse and mental state should be somewhat limited given the surrounding circumstances. The Director submits the respondent denied criminal involvement in the killing when first interviewed, ran a contested committal and pleaded not guilty to murder at the committal, and again at the final directions hearing shortly before the trial was listed to commence. The Director contends that in those circumstances, the respondent was not entitled to the sort of discount which is given where a plea of guilty and remorse have been demonstrated at the earliest opportunity.

30 The Director also contends that the respondent's depression had to be viewed in context. The Director says that his actions bore a rational explanation. The respondent had planned to steal his employer's takings and went equipped for that task. I agree with that observation. The Director says that the respondent's fatal assault on the victim was carried out, at least in part, for financial gain. I agree and so did the sentencing judge. The Director says that the respondent was cognisant of the seriousness of his actions and thereafter made a deliberate choice to let the victim die from her injuries, rather than ensure that she received appropriate medical attention. I would agree with that observation and the sentencing judge took those matters into account.

31 Further, the Director said that prior to the respondent's apprehension, he had used the stolen money and taken a number of steps which were clearly designed to avoid being apprehended and/or prosecuted. I agree with those observations and the sentencing judge also took them into account.

32 The Director contends that, in lying to the police during the first part of his interview, the respondent sought to avoid the consequences of his criminal conduct. He says that in those circumstances his moral culpability was of a high order and general deterrence required only limited amelioration. The Director relies upon R v Verdins[6] in support of this last proposition. In my opinion, the matters relied on by the Director cannot be disputed, however, it is also observed that the sentencing judge also took each of these matters into account and that any amelioration of general deterrence can be attributed to the respondent's depressive illness.

33 The Director submits that general deterrence, denunciation and just punishment were important considerations in the exercise of the sentencing discretion in this case. He says the nature and seriousness of this murder, together with the respondent's attempts to avoid responsibility for it, meant that specific deterrence was also important.

34 The Director contends that notwithstanding the matters in mitigation of penalty upon which the respondent could rely, this offence of murder necessitated the imposition of a very substantial sentence in order to properly reflect a number of important sentencing principles, in particular general deterrence and denunciation. He says similarly, the fixing of the non-parole period in this case called for a period that retained an appropriate level of punishment and did not undermine other important sentencing principles, in particular general deterrence.

35 In substance, the Director's contention that the sentencing judge erred in principle comes down to the contention that the sentence imposed by the sentencing judge was manifestly inadequate in the sense that it is so disproportionate to the seriousness of the crime as to shock the public conscience.[7]

36 The argument of the Director does not identify any particular error made by the sentencing judge. In substance, the Director's contention is that, as the sentence is so manifestly inadequate in the circumstances of this case, the sentencing judge must have given insufficient weight to the aggravating matters discussed above and must have given too great a weight to the mitigating factors referred to above.

37 The Director gave particular attention to the weight that the sentencing judge gave the psychiatric report prepared by Dr Lester A. Walton, a consultant psychiatrist. In his report, Dr Walton includes a description of what took place during the murder and also made observations about the respondent's upbringing in Shanghai and his life in Australia. Dr Walton assumed the correctness of what he had been told by the respondent in drawing conclusions concerning the respondent's state of mind at the time of the offence. Dr Walton referred to the respondent's upbringing in China and in particular the privileged position he held by virtue of his parents' senior positions in the Communist Party. He received a good education, but complained of his demanding parents. Dr Walton referred to the fact that the respondent had lost his girlfriend, who left for Canada where she engaged in a relationship with another man. He referred also to his gambling problems. The respondent apparently had ill-feelings towards his employer and hated his work. Mr Walton questioned the respondent as to what motivated him to offend in this way. In reply he stated: 'It was to do something against my parents'. Dr Walton said this was particularly directed at his mother, who was the equivalent of a Crown prosecutor in China and thus for the respondent to commit a criminal offence would have been profoundly distressing to his mother.

Mr Pan did not deliberately acquire the knife with a view to any criminal activity. It was a small paring knife which routinely he carried in his lunch box to peel fruit and the like. He stated that he finally decided to conduct the robbery only on the day that it actually occurred.

Mr Pan was aware that the alleged victim would recognise him and he intended to encourage her to participate in the robbery as well, but "I didn't have the chance. She just started to scream".

It was this that prompted Mr Pan to take hold of the alleged victim and he describes her as retaliating vigorously, kicking him and pulling his hair. He then proceeded to stab her, closing his eyes as he did so. He stated that he was unaware how many stab wounds were inflicted. He recalls thinking rather than calling out "Shut up, bitch", although the feeling was that this anger was directed at his former girlfriend rather than the victim.

Mr Pan stated that he observed blood on his hands. The alleged victim continued to struggle but eventually her struggling subsided. He stated that he attempted to drive away in her car but he observed that her body was still moving. It crossed his mind that he should take her to hospital and he actually drove towards St Vincent's Hospital and en route he heard the alleged victim call out "Help".

Mr Pan stated that he was driving along Nicholson Street and he was forced to stop at traffic lights and he became aware that there was no further vocalisation or movement from the alleged victim and he concluded that she must be dead.

Mr Pan parked the car and sat in the vehicle "shaking". He then drove home and washed himself.

Later he went and abandoned the car but he was concerned that it might be relatively easily discovered and hence he went and parked the vehicle at the dwelling of an acquaintance.

In relation to his misconduct, Mr Pan stated to me "I've destroyed two families. Hers and mine". He indicated that his parents had offered to visit him in prison but he is too ashamed to receive them.

39 Dr Walton's conclusions and opinions were as follows:

(1) Eric Pan is suffering from a diagnosable major depressive disorder at present. It seems probable that this condition was aggravated in the aftermath of the killing but there are indications that he was depressed prior to the incident due to his family and relationship problems, no doubt exacerbated by his relative isolation in Australia.

(2) Mr Pan can provide a clear description of his behaviour, which results in what I would describe as psychodynamic rather than a forensic psychiatric understanding of his motivation. It is apparent that he was experiencing a good deal of pent-up anger over many years which were directed at his parents and he was also angry about being abandoned by his former girlfriend. He was not in any need of additional finances and he seems to have deliberately set out to commit a crime to be offensive to his mother, in particular. The robbery was not simply impulsive, but neither was it carefully planned and when the situation began to unravel, particularly the alleged victim screaming out loudly, Mr Pan's anger was unleashed towards her, at one level simply to silence her but, at another level, he was seeking to cause harm to his parents and his girlfriend, he having an image of the latter in his mind at the time.

All of this is interesting psychology but it does not amount to a defence of mental impairment. While it seems highly likely that Mr Pan was not in the state of mind where he could reason with composure about his actions at the time, and there would be few acts of killings where that would apply, the defence of mental impairment is not available fundamentally because this man is not suffering from the type of mental illness which would give rise to that defence.

40 As indicated above, the sentencing judge accepted the thrust of Dr Walton's diagnosis of the respondent's mental state. I have already quoted the sentencing judge above where he refers to the fact that he was disposed to substantially accept the more complex explanation that emerged when the respondent spoke recently to the psychiatrist, Dr Walton. The sentencing judge repeated that the respondent was depressed and lonely; that his former girlfriend had found another man; that he had maternal pressure and that, to some degree, all contributed to his depressed state. He found that Joanne was somehow symbolic of what he perceived to be wrong in his life.

41 During his reply, counsel for the Director suggested that the findings of the sentencing judge concerning the respondent's motives were not open on Dr Walton's report. In my opinion, they were. In the circumstances, it can not be reasonably asserted that improper or undue weight was given by the sentencing judge to Dr Walton's psychiatric report.

42 In the end, therefore, the appeal comes down to the Director's submission that the sentence is manifestly inadequate as compared to, or would be expected in view of, the seriousness of the crime and is so inadequate as to shock the public conscience. The Director pointed out that the median sentence for murder in recent years is eighteen years' imprisonment, while the non-parole period is fourteen years' imprisonment.[8]

43 As indicated in my discussion of the nature of the appeal, the Court is not hearing the matter anew and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. In reiterating this principle, this should not be taken to mean that I am of the view that the sentence is inadequate. The sentencing judge was in a much better position than I to undertake the instinctive synthesis approach to sentencing.[9]

44 I do not take issue with the legal principles the Director raises in his submissions. However, in the circumstances I do not accept that the sentencing judge committed an error in principle in relation to the sentencing. It is not a question of whether the sentence was merely inadequate. The sentence has to be manifestly inadequate. As was said in R v Clarke,[10] this Court is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate (which I do not suggest it was).

45 In summary, the sentencing judge has not been found to have made any particular error in his sentencing. He took into account the aggravating factors that he ought to have, and he took into account the mitigating factors that he was entitled to take into account. The sentence imposed was above the median and on the median for the non-parole period. The sentencing judge took into account the seriousness of the offence, which was indeed serious. I find no error in the sentences imposed and would dismiss the appeal.

[1] [1996] VICSC 30; (1996) 2 VR 520

[2] Ibid per Charles JA with whom Winneke P and Hayne JA agreed at 522

[3] DPP v Pan [2008] VSC 509, [5].

[6] [2007] VSCA 102; (2007) 16 VR 269.

[7] R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 523 (Charles JA with whom Winneke P and Hayne JA agreed).

[8] See Sentencing Advisory Council: Sentencing Snapshot No.4, Sentencing Trends for Murder in Victoria, September 2005; Sentencing Snapshot No.27, Sentencing Trends for Murder in the Higher Courts of Victoria, 2001-02 to 2005-06, August 2007.

[9] Markarin v R [2005] HCA 25; (2005) 228 CLR 357.

[10] (1995) 2 VR 520.