DPP v Zhuang [2014] VSC 371

3 You are also from the Fujian province. You were born on 19 July 1963, and, accordingly, you are 51 years of age. In addition to Peter, you have two daughters, Guimei (May) and Xuemei (Suki). They both migrated to Australia from China in about 2002. You remained in China with your husband at that time. Subsequently, in January 2010, you came to Australia, in order to look after Selina during her pregnancy. You lived with your daughter May, and her family, in Reservoir, although you returned to China from time to time to visit your family there.

4 When Peter became engaged to Selina Lin, you supported their marriage. You looked after Selina during the latter stages of her pregnancy, and you helped her with her household duties. After the birth of Alfred, you stayed with Peter and Selina for one month, and looked after Alfred. Until then, the relationship between yourself and Selina had been quite good.

5 However, approximately one month after Alfred's birth, the relationship between Selina and yourself deteriorated badly, largely due to differences between you in your attitudes to issues of culture and tradition. You come from a very traditional part of rural China. As part of your culture, you expected Selina, as your daughter-in-law, to call you "mother", and to be deferential to you. You also expected that Peter, as the eldest son, and his wife, would live with you after he was married. On the other hand, Selina, having come to Australia during her teenage years, was less traditional in her outlook, and she wished to enjoy her married life with some independence from you and your family.

6 Shortly after Alfred's birth, Selina began to feel somewhat overwhelmed by the cultural expectations which you had of Peter and her. She told a close friend that she felt that you interfered too much in her marriage, and that you were causing difficulties in it. As a result, she sought to distance herself, and Peter and Alfred, from you and your family. At one stage, Peter, Selina and Alfred moved from their premises in the city, to a home in Keilor, without informing you or any other members of your family. It is clear that, at that stage, Selina was trying to gain space from what she regarded as excessive interference by you and your family in her marriage. On the other hand, understandably, you were upset and offended by Selina's attitude and behaviour towards you.

7 It was common ground that the relationship between Selina and you had deteriorated badly by the time of the incident in which you murdered Selina. It is clear that Selina did not like you, and she resented your interference in her marriage. At times she was prepared to stand up to you, and to refuse to comply with your wishes.

8 On the other hand, I am well satisfied on the evidence that you developed a strong sense of hostility towards Selina. On two previous occasions, that underlying feeling of animosity towards Selina was so intense that it had erupted into acts of physical violence by you towards her.

9 On one occasion, in July 2011, as a result of an argument you had with Selina, you cut the back of her hair with some scissors. I am also satisfied on the evidence that on that occasion you assaulted her by striking her on the face. One witness, to the aftermath of the incident, gave evidence that she also observed what appeared to be stab marks on Selina's neck and face. That evidence was not supported by the police who attended the scene of the incident, or by the doctor who examined Selina shortly after it. Accordingly, for the purposes of your sentence, I am not satisfied that, in that incident, you did stab or assault Selina with the scissors, otherwise than by cutting her hair.

10 On another occasion in 2011, Selina telephoned a close friend, Bin Li (otherwise known as James) in the middle of the night, complaining that you had assaulted her. She was particularly distressed, so much so that Bin Li, during that night, attended at Selina's house. When he arrived, you told Bin Li that Selina was not a good daughter-in-law, and that she deserved to be beaten. Although Bin Li's evidence was contested at the trial, I am satisfied that an incident did occur on that occasion, as described by Selina to Bin Li, in which you struck her.

11 In 2012, Selina, Peter and Alfred were living in premises, which you owned, in Tasman Drive, Bundoora. In the early part of 2012, you had travelled to China for a visit. You returned to Australia approximately one week before the incident in which Selina died. Two days before that incident, you paid an uneventful visit to Peter, Selina and Alfred at their home in Bundoora.

12 On 3 May 2012, you requested your daughter, May, to drive you to the premises at Bundoora, so that you could visit your grandson. She left you there at about midday. Subsequently, in the middle of the afternoon, an argument developed between yourself and Selina. In the course of that argument, you took hold of a hammer, and struck Selina's face and head more than thirty blows with it. You also inflicted a number of blows to her arms and hands while she was trying to defend herself. As a result of that beating, Selina died. The pathologist, who conducted the post-mortem, unsurprisingly concluded that the cause of death was blunt force injuries to the head. In particular, he considered that the injuries, sustained by Selina, would have resulted in an acute and catastrophic blood loss, which was the likely mechanism of death.

13 Almost immediately after killing Selina in that way, you took possession of a zip-up nylon suitcase, and you placed Selina's body in it. You cleaned the parts of the premises, which were covered in bloodshed, with a towel and some cloth. You then removed a wheelie bin from a neighbour's property, and you placed the bag, containing Selina's body, in it, together with the cloth and towels used by you to clean up the premises. You then returned the bin to its position outside the neighbour's house. Having done so, you departed the house at Bundoora, leaving your two year old grandson, Alfred, there alone and unattended.

14 At some stage, you made telephone contact with your elder daughter May, and arranged for her to meet you at the nearby Bundoora Shopping Centre. In response, May collected you from the shopping centre, and drove you home. At your request, she later drove you to the home of your other daughter, Suki, in Coburg, where you stayed overnight. At approximately 2.00 am on the next morning, you woke Suki, and requested that she drive you back to the premises at Tasman Drive, Bundoora. When you arrived there, you, on your own, took possession of the wheelie bin containing Selina's body, and pushed it, some 800 metres, to the precinct of the Darebin Creek. There, you tipped the bag, containing Selina's body, down a steep bank into the creek, and you hid the bin in some nearby bushes. You then returned to Suki's vehicle, and she drove you back to her home in Coburg.

15 Later on the same morning, you spoke to both of your daughters. You told May, in brief terms, that you had had to defend yourself and Alfred from Selina. Ultimately, a decision was made that you should surrender yourself to the police. Accordingly, you went, with your two daughters and your son in law, to the Preston Police Station. You told the police that you had killed your daughter-in-law, and that you had done so while acting in defence of yourself and your grandson. At that stage, there had been no report to the police that Selina was missing, and the police had not heard anything about the circumstances in which Selina had died.

16 At the police station, you submitted to a recorded interview, which proceeded, with breaks, for a period of 12 hours. You were in a highly emotional state before and during the interview. The interview was conducted through an interpreter. As a result, your description of what had occurred, and what you had done, was not entirely coherent.

17 In effect, you told the police that the argument between yourself and Selina had occurred when Selina was preparing to place Alfred in the bath. You considered that Selina had put too much water in the bath tub, and that the water was too hot. You claimed, in the interview, that when you pointed out those matters to Selina, she grabbed you by the hair, and tried to hit you with a hammer. You told the police that you managed to grab the hammer from Selina, and that you then struck her, in order to protect yourself and Alfred from death. You said that if you had not acted in defence of yourself and Alfred, both you and Alfred would have been killed by Selina. On a number of occasions in the interview, you said that you had acted in defence of yourself and Alfred.

18 As a result of the information which you gave to the police, they were able to locate the bag which contained Selina's body. The post-mortem examination, which was conducted on that day, revealed that Selina had sustained 33 separate injuries to her head and face. There were more than 30 lacerations to the scalp and face. In addition, Selina had sustained a depressed fracture to the rear of the skull, which, the pathologist considered, would have been the result of more than one blow to the head in that area. The pathologist expressed the view that the amount of force, required to inflict that injury, would have been severe. Selina had also sustained a fractured jaw and a fractured nose.

19 In addition, the pathologist found that there were five separate areas of bruising to Selina's right arm, and a number of injuries, including bruising and lacerations, to the back of her right hand and fingers. The fifth finger on the right hand was fractured. There were also four separate areas of bruising to the left arm, and bruising and lacerations to the left hand and fingers. Each of those injuries were described by the pathologist as typical defensive injuries.

20 You were examined by a medical practitioner at the Preston Police Station during the evening of 4 May. You did not complain of any pain or injury sustained by you, other than a sore back, which you stated you suffered when you fell over during the incident. The doctor examined your head, neck, torso and limbs, and could find no sign of any injury sustained by you.

21 At your trial, the principal issue was whether the prosecution had proven, beyond reasonable doubt, that you did not act in defence of yourself or Alfred in inflicting the blows which caused the death of Selina. By its verdict, the jury was satisfied, beyond reasonable doubt, that, at the time at which you struck the blows, which caused the death of Selina, you did not believe that what you did was necessary in order to defend yourself, or Alfred, from death or really serious injury.

22 Based on the verdict of the jury, and on the evidence in the trial, I am satisfied, beyond reasonable doubt, that, in striking the blows which caused the death of Selina, you did not act under an apprehension that Selina was, or might have been, posing any form of danger to yourself or Alfred. Rather, you killed Selina in the course of an uncontrollable burst of anger arising out of the argument that had arisen between you and Selina.

23 In the absence of any other evidence, I am satisfied that the cause of that argument was a difference of opinion between yourself and Selina as to the method by which Selina intended to bathe Alfred. There is evidence that Selina tended to be quite possessive of Alfred, particularly when she sensed that you were seeking to interfere with her care for him. However, on each previous occasion, Selina had not resorted to any form of violence, or threat of violence, towards you. On the evidence, I am satisfied that Selina did not, on this occasion, threaten you with violence, or commence to act in any way towards you, which would have led you to have any apprehension that she was about to do so. Rather, I am satisfied that, because of the argument which arose between the two of you over the issue of bathing Alfred, your underlying feelings of hostility and enmity towards Selina boiled over, so much so that you erupted in an uncontrolled fit of violent rage towards her. I am satisfied that it was you, and not Selina, who took hold of the hammer. The nature of the injuries, which you inflicted on Selina, the number of defensive injuries which she sustained, and the lack of any injury to yourself, satisfy me, beyond reasonable doubt, that throughout the incident you were the aggressor, and that Selina was desperately trying to defend herself against the relentless attack, which you launched on her with a hammer, until she was unable to do so when she lost consciousness, and died.

24 You have been convicted of the most serious offence known to our legal system, namely, the murder of another human being. The maximum sentence for that crime is life imprisonment. In this case, you murdered your daughter-in-law, in her own home, by a vicious and sustained attack with an implement, which, when used in the way in which you did, was lethal. You inflicted a sustained and violent attack upon her in the presence of her own two year old son, your grandson.

25 On the other hand, I take into account the fact that your actions, in murdering Selina, were entirely spontaneous and unpremeditated. There was no suggestion in the evidence, at all, that you had planned, or even contemplated, killing Selina, before the argument erupted between you and Selina which resulted in her death. Further, I accept that the outburst of violence by you, which resulted in Selina's death, was the product of the complex dynamics of the difficult relationship which you had with your daughter-in-law, which, themselves, were based on the intractable cultural differences between yourself and Selina.

26 Your conduct immediately after murdering Selina does you no credit at all. I accept that you acted out of a sense of panic. However, your reactions were all driven by a sense of self-preservation. You knew that you had murdered your daughter-in-law, and you knew that you had done so in circumstances in which you could not claim that she had given you any occasion or justification for doing so. In order to conceal your crime, you treated her deceased remains with an extraordinary degree of callous insensitivity and disrespect. Having taken her life from her, you then deprived her of dignity in her death. You even went so far as to leave your vulnerable two year old grandson alone and unattended in the house.

27 That conduct by you is an aggravating feature of your offending. On the other hand, I accept that, to a reasonable degree, it is offset by your conduct, on the morning of 4 May, of voluntarily attending at the police station, confessing that you had killed Selina, and providing to the police the information which enabled them to locate and recover Selina's remains.

28 The primary victim of your crime was, of course, Selina Lin. As I stated, at the time of her death she was only 21 years of age. The evidence at the trial demonstrated that Selina felt very deeply for your son Peter. She was a devoted mother to Alfred, and she truly adored her infant son. She was a courageous young woman, who had come to Australia, on her own, at an early age, in order to further her education. By your cruel crime, you have taken the life of that decent young woman. You have deprived her of the opportunity to experience the joy and satisfaction of raising a family in this country, and of nurturing Alfred from childhood to adulthood.

29 There are also other victims of your violent crime. In this respect, I have read the victim impact statement of Selina's mother, Shui Weng Cheng, which was tendered on your plea. Selina was the only child of Ms Cheng. As a result of her death, Ms Cheng is now the guardian of Alfred, and she has the responsibility of raising him. It is clear from her statement that she is struggling to cope with the overwhelming grief and depression caused to her by the loss of her beloved daughter.

30 In addition, you have taken from your son, Peter, his much beloved wife, and you have taken from your grandson, Alfred, his deeply loving mother. Each of those persons are truly victims of your criminal actions. Their suffering and loss is a salutary reminder of the gravity of your offending, and of the ongoing anguish and pain which has been caused by it.

32 As I stated, you were born in the Fujian province of China in 1963. Throughout your years, your life has been marked by an ongoing struggle with hardship, in which you have made great sacrifices for your family, to which you have demonstrated unstinting devotion.

33 You are the youngest of six children. You grew up in a village, and your parents were farmers. There was little work available in the countryside. Food was scarce, and there was barely sufficient to enable your family to subsist. You lived a life which, from a material point of view, was extremely impoverished. You did not have the advantage of any formal education at all, and you are, effectively, illiterate.

34 Your mother committed suicide when you were only 18 years of age. She had been quite ill, and she had borrowed money, which she was unable to repay, to purchase some medication. A few years later, your brother died as a result of a motor vehicle accident, and, shortly after that, your father passed away. Subsequently, one of your sisters also died. Your surviving three sisters are in China.

35 You were married when you were 18 years of age. Your marriage was arranged. Your husband's family situation was similar to that of your family. After you married, you undertook the responsibility of taking care of your own children and your parents-in-law.

36 You gave birth to five children in the short period of five years. However, because of your lack of financial resources, you had to adopt out two of your daughters. Your family survived on a meagre income, which your husband was able to make from his employment in a small company. Due to the one child policy in China, you attempted to conceal the birth of your last child, Peter. When it became known that you had had another child, your husband lost his employment as punishment for contravening the one child policy. As a result, the circumstances of you and your family were extremely reduced.

37 Nevertheless, over the course of time, your husband and you were able to form, and develop, a building materials business. You both worked very long hours in the business, and were frequently absent from the home while attending to the business. In doing so, your husband and you both made considerable sacrifices, in order to be able to provide sufficiently for your children. As a result of your hard work, you were able to provide your children with an education, and the opportunity to study abroad.

38 May, Suki and Peter were each able to come to Australia on student visas. In order to entitle them to study in this country, you had to provide evidence to the immigration department that you were able to financially support each of them while they were in Australia. In that way, and by making considerable sacrifices, you have enabled each of your children to come to this country, and to build their lives here with their families.

39 As I have already noted, you migrated to Australia in January 2010. Before coming to Australia, you had always lived in a rural village. You were unable to speak the English language. As a result, when you came here, you lived a fairly isolated existence, which was confined largely to caring for your family. Your father-in-law had recently passed away in China, and your husband remained in China to look after his mother.

40 It is clear from your background that, before you committed the offence in this case, you were a person of good character. At your trial, Peter, May and Suki each gave evidence to the effect that you had worked very hard, that you had made substantial sacrifices, for your family, and that you have consistently been a devoted and caring mother and grandmother. You have no previous convictions in China or in Australia. While you have been in custody, you have not been involved in any violent incidents or any episodes of anger, notwithstanding the fact that, during that time, you have been under substantial psychological stress.

41 The period during which you have been imprisoned to date has been quite difficult for you. As a result of the offence, you have been estranged from your son, Peter, who does not visit you. You have not had any access to Alfred. Understandably, that is a matter of substantial grief for you, particularly in light of your cultural background. As I stated, your husband remained in China to look after his mother. He has recently visited Australia, in order to receive treatment for a long standing gall bladder complaint. However, it is likely that he will return to China in the foreseeable future, in order to continue to care for his aged mother. In those circumstances, your time in prison has been, and will continue to be a very lonely time for you.

42 During your time in custody, you have suffered from ongoing psychological stress arising from the circumstances of your offending, and from the circumstances of your custody. You were first referred to the Marrmak Unit on 2 June, suffering from depression. Since that time you have attended at that unit for a number of reviews. In addition, you have been admitted to that unit as an in-patient on at least two separate further occasions.

43 On your plea, I received three reports by Dr Danny Sullivan, a consultant psychiatrist, who has examined you during your time in prison. The first two reports, which were prepared before the trial, were concerned with the issue of your fitness to stand trial. Since the jury's verdict, Dr Sullivan has had the opportunity to interview you via video conference on 27 June. He has also reviewed Justice Health medical records and Corrections Victoria records relating to your time in custody.

44 In his report, Dr Sullivan has noted that the prevailing diagnoses of your condition have been either of adjustment disorder with depressed mood, or a major depressive episode. Since that condition has persisted for more than two years, Dr Sullivan considers that the most appropriate diagnosis is that of a chronic major depressive disorder of moderate severity. There is no indication of marked anxiety, psychotic symptoms or manic features. Nor is there any indication of an underlying personality disorder, and no known history of violence or anger. Dr Sullivan considers that you appear to be functioning in the borderline range of intellect. However, there is no information which would support a conclusion that your cognitive limitations affected your judgment in committing the offence. Dr Sullivan considers that your mood disorder, and its consequences, are likely to persist.

45 Based on those matters, I am satisfied that your period of imprisonment, which I must impose upon you, would be substantially more burdensome for you. In particular, your continuing psychological issues, your limitations in the English language, your limited education, your lack of cultural adaptation, and the restricted family circle who will visit you over the years, will all combine to have the effect that your term of imprisonment would be substantially more difficult to bear.

46 In addition, it is relevant that, at the conclusion of your sentence, you may be liable to be deported as a result of your conviction in this case. In particular, in those circumstances, the Minister of Immigration possesses a discretion to order your deportation on the grounds of your character. The question, whether you will be deported, will be a matter for the exercise of ministerial discretion at the conclusion of your sentence. Neither your representatives, nor the prosecution, have been able to obtain any information, or data, relating to the manner in which that discretion is currently exercised. Nevertheless, taking into account the provisions of the Act, and the ministerial direction that was provided to me in the course of your plea, I am satisfied, for the purposes of sentencing you, that there is a realistic risk that you might be deported at the conclusion of your term of imprisonment.

47 That conclusion is relevant for two reasons. First, I accept that, during the term of your imprisonment, you will face the possibility that you might be deported upon your release. I have no doubt that that matter will weigh heavily on your mind, and will add to the burden of a sentence of imprisonment on you. Secondly, if you are deported, that would constitute a serious punishing consequence to you resulting from your offending in this case.

48 In light of the length of your term of imprisonment, it is not feasible to sensibly quantify the level of the risk that you may be deported. However, given the seriousness of your offending, and other matters referred to in the ministerial direction, I am satisfied that there is a realistic risk that you may be deported at the conclusion of your term of imprisonment. To that extent, it is appropriate that I take into account that risk as a potential additional punishing consequence resulting from your conviction in this case.

49 The prospect of deportation for you is a most serious matter. Your two daughters, and their families, have settled in Australia. By the time of your release, it is most unlikely that either of them would be able, or wish, to uproot themselves and their families, and return to China, in order to be with you. You have few family members living in China. If you were required to return to China, that would occur after you had lived in this country for a substantial period of time. In all those circumstances, it would be extremely difficult for you to adjust to your return to China. Hopefully all of those matters would be given sympathetic consideration by the Minister, in the exercise of his or her discretion, at the relevant time. However, for the purposes of sentencing you, I have no doubt that the matters that I have just discussed will weigh most heavily on you during the term of your imprisonment. They also satisfy me that, if you were deported at the conclusion of your term of imprisonment, that would be a particularly grave additional punishing consequence to you resulting from your offending.

50 I am also satisfied that it is most unlikely that you will re-offend upon the completion of your sentence. To that extent, your prospects for rehabilitation are, I consider, particularly good. I have made that assessment on the basis of your previous good character, Dr Sullivan's report, your conduct in prison, and the fact that your offending was the result of a spontaneous, unpremeditated outburst of anger deriving from the particular circumstances which I have already described.

51 In summary, then, you have been convicted of a most serious crime, namely the brutal murder of your daughter-in-law in her own home in the presence of her two year old son. The amount of violence involved in the attack, and the fact that you used a weapon to kill Selina, are serious features of your crime. The gravity of your offending was aggravated by your conduct in removing and seeking to dispose of Selina's deceased body, in order to conceal your own guilt.

52 On the other hand, there are important mitigating circumstances in your case. I am satisfied that your offending was not premeditated, but, rather, was the result of an outburst of uncontrollable anger on your behalf which arose from the difficult relationship between yourself and Selina. Your subsequent conduct in reporting the death of Selina to the police, and assisting the police to locate and recover Selina's body, substantially offset your earlier conduct in seeking to dispose of her body.

53 In addition there are a number of mitigating factors arising from your personal circumstances. Despite the fact that you have lived a most difficult life, you have devoted yourself to the welfare of your family. You are a person of otherwise good character, with no previous convictions. Apart from the two incidents involving Selina to which I have referred, you have no history of violence and you have not displayed any proclivity to violence during your time in custody. Further, for the reasons which I have already outlined, I am satisfied that a term of imprisonment will be substantially more burdensome for you. You have good prospects of rehabilitation, in that I am satisfied that there is little risk of you re-offending. You face a realistic risk of deportation at the conclusion of your term of imprisonment.

54 In determining your sentence, it is important that I take into account the principal purposes of sentencing in a case such as this. The sentence must be sufficient to properly express the condemnation by the court, and the community, of your crime, and to uphold the sanctity of human life, which is the most important value in our society. In addition, it is necessary that the sentence be of sufficient severity to constitute a deterrent to others, who might be minded to act in a similar way as you did. It is also necessary that the sentence should act as a specific deterrent to you, although that factor is of less importance in this case, as I am satisfied that you are unlikely to re-offend.

55 Taking those considerations into account, I sentence you as follows. I sentence you to 18 years' imprisonment. I fix a minimum nonparole period of 13 years and 6 months. Pursuant to s 18(4) of the Sentencing Act 1991, I declare that 831 days be reckoned as served under this sentence, and I shall cause that declaration to be noted in the records of the Court.

56 In addition, I make the disposal and retention orders proposed by the prosecution, and not opposed by your counsel.