R v Barrett

Supreme Court of NSW|2017-12-13|Before: Wilson J, Mr P, Johnson J

Judgment

In September 2014 Derek Barrett started down a path of sexual deviancy that would lead him to the dock of this Court where he today faces sentence for five criminal offences.
Those offences are: 1. three counts of committing an act of indecency contrary to section 61N(2) of the Crimes Act 1900 (NSW); 2. one count of detaining a person for advantage (or kidnapping) contrary to section 86(1)(b) of the Act; 3. and one count of murder contrary to section 18(1)(a) of the Act.
The sexual offences carry a maximum sentence of eighteen months imprisonment; kidnapping carries fourteen years; and murder carries a maximum sentence of life imprisonment. Only the last offence attracts a standard non-parole period, that being, relevantly, twenty years imprisonment.

The Facts of the Offences

Before the Court as exhibit A2 is a statement of the facts of the offender's crimes, which are not disputed by him. What follows has been drawn substantially from that document, supplemented by other evidence before the Court in exhibit A, including the offender's account of events to police.
Mengmei Leng, who is the victim of the murder, was a young woman of Chinese birth who moved to Australia to study in 2011. She was 25 years old when she died.
In 2012 the offender married Ms Leng's aunt, Ms Cheung, who was living and working in Australia. Ms Leng lived with the offender and his wife, together with Ms Cheung's daughter, Peitung Chan and, for a time Ms Cheung's son, at a number of residences in Sydney. In 2014 the family was living at an apartment at Beamish Street in Campsie. The offences all occurred in the family home.
In September 2014 the offender placed his mobile telephone in a shared bathroom facing the shower area. Ms Chan, the offender's adult stepdaughter, later entered the bathroom and undressed in readiness for a shower. She showered, dried herself, and dressed. The offender's telephone recorded her in the bathroom throughout with the recording lasting for 14 minutes and 56 seconds. This offence, which is to be taken into account on sentence, is the first charged incident that evidences the offender's sexual deviancy.
On 12 September 2015 the offender again sought to view Ms Chan for his sexual gratification. He entered her bedroom a little before 7am that morning and filmed her sleeping in her bed with himself standing over her masturbating. Towards the end of the footage, of 1 minute and 59 seconds duration, the offender appeared to flick fluid from his fingers towards his stepdaughter's clothing. This is sequence 7, for sentence.
The following month on 15 January 2016 the offender again installed a mobile telephone in such a way that he was able to secretly film Ms Leng, this offence being item 20 on the Form 1 document. Pretending to use the toilet in the shared bathroom, he placed his mobile telephone to record Ms Leng, when shortly afterwards she entered the bathroom, removed her clothing, bathed, dried herself, and dressed. The recording was for a little over 33 minutes.
On 27 January 2016 the applicant entered Ms Leng's bedroom in the very early hours of the morning and filmed her as she slept. With his erect penis in the frame, the offender focused the camera on Ms Leng's bottom and underwear. The recording shows the offender ejaculating at the end of the 48 second film. This offence is sequence 3, for sentence.
On 13 February 2016 the offender again filmed Ms Leng as she slept in a darkened room. The device panned up and down Ms Leng's body, whilst in the foreground of the frame the offender can be seen to masturbate his erect penis. In a second recording taken minutes later, the offender recorded his act of masturbation with the sleeping victim in the images. This offence is sequence 5, for sentence.
Between 1 April 2016 and 24 April 2016 the offender's wife was away from home working in Wollongong. The offender, Ms Chan, and Ms Leng remained at the Campsie apartment.
On 21 April 2016 Ms Leng had lunch with a friend at the fish markets in Sydney, travelling home by train. Her Opal card was used at 4.32pm as she exited Campsie Railway Station and her image was captured by CCTV cameras as she entered her apartment building at 4.42pm. She spoke to friends by telephone that evening and sent a text message at midnight. That is the last time she was in communication with anyone other than the offender.
At some time after midnight on 22 April 2016 and before 8.37am the offender detained Ms Leng, binding her hands behind her back and gagging her with heavy duct tape secured over her mouth. She can be seen in the photographs, which are exhibit B, naked and bound and, in the single image of the thirteen in evidence where her face can be seen, she appears terrified. The other images do not show her face; they all focus on her breasts or, in close up, her genitals. For some of the images to be taken, the offender must have forced Ms Leng to part her legs, so that she can be seen lying humiliatingly exposed.
The other thing that the images show is that Ms Leng was at that time physically uninjured.
The offender's conduct in detaining Ms Leng and binding her for the benefit of being able to exploit her for his own sexual gratification is the offence contrary to section 86(1)(b). In the period in which the offender held his wife's niece in this degrading way, he took a series of images of her, of which exhibit B is a sample. The acts of recording images of the victim's breasts and genitalia are reflected by the charge sequence 8 to 26 inclusive which are before the Court on the Form 1 document.
At some time after 8.39 on the morning of 22 April 2016, when the last of these images were taken, and 3.19am on 24 April 2016 when the offender left the Campsie apartment to drive to Lake Munmorah, he killed Mengmei Leng by stabbing her to death.
The injuries to Ms Leng evidence what was a vicious attack upon her and her struggle against that attack for her life. When a post-mortem examination was later conducted, 31 separate wounds were noted, some being stab wounds and some being incised wounds. All of these wounds were consistent with having been inflicted with a knife. There were also numerous blunt force injuries. The lethal wound was one to Ms Leng's throat, which almost completely transected her larynx, penetrating 40 millimetres into the body. There were nine wounds to the left hand and two to the right hand and wrist, consistent with defensive injuries. The remaining nineteen wounds were to the head, neck and torso.
Whilst the wound to the larynx was lethal, blood loss from the other wounds could have contributed to death. Examination of the tissues of the lungs revealed that Ms Leng survived these injuries for a time after the wound to the larynx was inflicted. The blunt force injuries, of which there were many, are all consistent with post-mortem injuries, likely to have resulted from the manner in which the offender sought to dispose of Ms Leng's body.
The evidence does not establish when in the period between the morning of 22 April and the morning of 24 April 2016 the offender murdered Ms Leng. It does establish that he took significant steps to disguise his crimes and dispose of evidence of it.
At 4.14pm on 22 April 2016 Ms Chan arrived home at the apartment. She remained at home for a few hours, leaving again at 7.29pm. During that three hours and fifteen minutes the offender was, but for a brief trip to his bedroom, in the apartment's bathroom. The shower in the bathroom was running for the entirety of that time. At one stage Ms Chan knocked on the door of the bathroom to ask for shampoo. The offender opened the door a crack and passed the shampoo out. He told Ms Chan that the bathroom smelled and that she should use the second bathroom. She did not, however, detect any bad odour.
Ms Chan did not see Ms Leng at all.
At 7.51pm the offender placed a telephone call to his father. There is no suggestion that he presented as in any way other than his usual self.
The offender did not leave the apartment on the evening of 22 April or on 23 April 2016, other than to take the building's lift to the basement where the building's rubbish is disposed of. The offender went between the apartment and the basement at 4.46am, 5.17am, and twice in the few minutes around 2.30pm.
These trips to the rubbish disposal area may have been linked to the offender's apparent effort to clean the apartment. Later, the offender's wife would tell police that when she returned home on the late afternoon of 24 April 2016, the apartment was exceptionally clean. A large and previously full bottle of cleaning fluid was almost empty and the victim's bed sheets had, unusually, been laundered. A number of bath towels, a roll of black duct tape, and a large suitcase were missing.
At 6.21pm on 23 April 2016 the offender had a 40 minute telephone call with his mother. He arranged to drive to her home at Gwandalan and collect some money, being $300 that had been given to his parents by his wife about a month earlier.
At 7.41pm Ms Chan arrived home. She remained there until 8.30pm when she again went out. When she was at home Ms Chan did not see her cousin. She saw the offender using a computer in the living room.
The offender remained at home alone with Ms Leng, or her body, for the rest of that night.
In the early hours of the following morning the offender sent a text message to his wife to check on the time at which he should collect her from work.
At 3.19am he took the builder's lift to the car park, driving out of the car park at 3.34am. Ms Leng had by that time been murdered and the offender was travelling with her body in the boot of his car, driving to the place where he would attempt to dispose of it.
At 3.37am the offender stopped at a Campsie petrol station and bought drinks. There does not seem to have been anything unusual about him at that time.
At 7.27am a car consistent with the make and model of that driven by the offender travelled through the Pacific Highway entrance of the Munmorah State Conservation Area situated on the coast. Three minutes later, his mobile telephone connected through a telephone tower located in that vicinity, at Mannering Park, about 15 kilometres from the conservation area.
Sometime after his arrival in the park, the offender went to the Snapper Point Blowhole at the cliff edge, carrying Ms Leng's body, naked but for a wrapping of black plastic. He stepped over a safety rail and threw Ms Leng's body off the cliff so that it entered the water 20 or 30 metres below.
The offender's mobile telephone was used to take seven images of the cliff and waters off the Blowhole at 9.19am.
At around that time the offender was observed taking photographs by two walkers. He spoke briefly to them saying, "I wouldn't recommend going down there". He also spoke briefly with a park officer who had earlier noted the offender's car in the car park, before driving away quickly.
At 10.30am a walker on the cliff top saw a body floating face down in the water. Police were called and the body of Ms Leng was later recovered by Police Rescue.
On leaving Snapper Point, the offender drove to the nearby home of his parents and collected $300 from his mother. He stayed for only about ten minutes. There is no suggestion in the agreed facts that the offender was observed to be acting unusually.
He subsequently drove to Sydney, collecting his wife from Hurstville Railway Station shortly before 10pm.

The Events Following the Murder

On arriving home, Ms Cheung asked about her niece's whereabouts, telling the offender that she had been trying to call her. He said he did not know.
Later, he assisted his wife and stepdaughter to search Ms Leng's bedroom, social media accounts, and private messages and computers, for clues to her whereabouts. He tried to call Ms Leng's mobile telephone in his wife's presence late on 24 April 2016.
On the evening of 25 April 2016 the offender went to Campsie Police Station with his wife and reported Ms Leng missing. He said that Ms Leng had not been seen since midnight on 21 April 2016 but claimed to have spoken to her at 10am on 22 April by telephone. There was no such call made on the offender's mobile telephone. He and Ms Cheung also later reported Ms Leng as missing to the Chinese Embassy.
At some stage the offender told his wife that Ms Leng had been seeing a man from Wollongong and suggested that the man had murdered Ms Leng and dumped her body in Wollongong.

The Police Investigation

On 26 April 2016 police investigating the murder of the woman whose body was found off Snapper Point, and who had seen the missing persons report concerning Ms Leng, attended the offender's home to obtain a DNA sample for comparison purposes. When the officers spoke to Ms Cheung and Ms Chan the offender repeatedly interjected in a way that the officers interpreted as an attempt to control what was said. The offender told police that Ms Leng had been "internet dating" and seeing a man she had met online.
Later, observations were made of the offender's car, which was coated in dirt and dust. The road leading to Snapper Point is a dirt road and the detritus had likely been collected on that road.
Later on 26 April the offender made a statement to the police (Ex. A5) in which he gave details of his own background and information about Ms Leng. He claimed that Ms Leng had lately "been going to parties, nightclubs and started drinking" (at [22]). He said she had been using a particular dating application, or app, and had met a few people.
The offender claimed that he had last seen Ms Leng on the evening of 21 April 2016 when they were home alone together. He said that "maybe we had a salad for dinner" and watched a movie, which he nominated as "Two Guns" (at [36]). He said that she went to bed in her room at 12am or 1am, and gave a detailed description of her pyjamas. He said: "She closed her bedroom door. Normally she puts a rubber doorstop on the inside of her door so you can't get it [sic: in]" (at [41]).
The offender told the police that he woke up in the afternoon of 22 April 2016 and Ms Leng was not in the apartment. He assumed that she had gone out. He did not see her that day and remained at home. He gave a detailed account of his activities. The following day, Saturday 23 April 2016, the offender said he sent a text message to Ms Leng asking if she would be home for dinner, as he was "a little bit concerned".
He said he had spoken to his father and mother on the telephone that day, and commented that it had been "weeks" since he had been to the Central Coast. He mentioned that Ms Leng had been to the Central Coast in the past to see the beaches.
The offender said he spent the Saturday night "mo[p]ing around" and watching Chinese TV before going to bed. On Sunday 23 April he again woke very late, went to get some takeaway food at a drive-through restaurant, and then picked his wife up at Hurstville Police Station. On returning home, they looked through Ms Leng's room to see if she had left a note for them.
That day and the next the applicant said he sent messages to and tried to call Ms Leng using both mobile communications and the WeChat app. He obtained photographs of Ms Leng from a camera in her bedroom to give to police when he reported her missing.
He claimed to have contacted friends of Ms Leng by using her Facebook account, and subsequently speaking to the friends, who reported that Ms Leng had been going out with a man from Wollongong and a German guy. Her friends supposedly said she had been "chasing guys" (at [92]) and using a dating app.
On 26 April the offender (referring to Ms Leng as Michelle) claimed (at [104] - [104]) that: "My wife and I went to the Sydney Police Station because we heard about a girl found on the Central Coast who was found dead in the water. She was described as Asian appearance and 170 centimetres, which is the same size as Michelle. We found out this because one of my wife's friends sent a story to her phone. Fearing it could have been Michelle, we went to the police station to see if there was any more information."
He concluded his statement of that day: "There is nothing more I can comment on about this. I have told Detective Nathan Rose everything I am aware of and everything I can remember. This statement is true to the best of my knowledge and belief. There is no person that I can think of that would ever want to hurt Michelle" (at [121] - [122]).
On 29 April 2016 Ms Leng's body was identified by a DNA match. Police asked the offender to come to the police station and he agreed. He was later interviewed under caution.
When told that police suspected that Ms Leng had been murdered, he responded, "We suspected that for a couple of days at least".
Initially, other than adding a memory of having gone out to dinner with two friends on the night of Monday 25 April, the offender maintained the version of events he had given to police in his witness statement. He did, however, add a significant level of detail of the events of 21 to 26 April 2016.
After a time he told the interviewing officers that he had seen a female friend to hang out with her on 19 April 2016 or thereabouts, attending the Casino in the city.
He also gave a considerable amount of detail of his observations of Ms Leng when she came home on 21 April 2016 and during that evening, including conversations they had. He said: "We had fun watching the movie together."
He continued: "We laughed and, sorry, this is emotional. It's kind of like the last moment we had together."
He also added that he had seen his female friend in the very early morning hours of Sunday 24 April 2016. When pressed by the police as to where and when he had seen his friend, the offender described the route he drove along before the meeting at a train station near Sydney, but seemed unable to provide details of where he had met his friend. He told the officers that he "may have had some intimacy" and soon after asked to see the Custody Manager. To the Custody Manager the offender asked to see a lawyer and family. The interview was suspended.
After the offender had an opportunity to seek advice, he was arrested in relation to Ms Leng's murder and participated in a forensic procedure. He was cautioned specifically in relation to the death and further interviewed. He was advised that investigations had revealed that his mobile telephone had connected with a telephone tower located on the Central Coast on the morning of Sunday 24 April and that his mother and other relatives had confirmed that he had attended his mother's home that morning. Nevertheless, he maintained his denial that he had been to the area recently.
When shown a photograph of a car similar to his entering the State Conservation Area at Munmorah, the offender said it was blurry but it could not be his car as he had not been there in a long time.
When the offender was again pressed about his car, and a demand was made of him for the identity of the driver on or about 7am on Sunday 24 April, the offender said it was "unknown". He then began to assert memory loss for that period. He told the officers: "I just can't remember anything from that time. I assumed I was asleep."
He denied being sexually attracted to Ms Leng and denied murdering her. He said he did not know the Blowhole and had not disposed of her body at Snapper Point. When asked if there was "any kind of closure you'd wish to give to the family of Mengmei", he said, "I'm sorry for their loss. That's it."
The offender was charged.
His mobile telephone was seized and, although the offender had deleted them, the photographs and recordings already referred to were recovered by the police.

The Impact of the Offender's Crimes

On 13 December 2017 a victim impact statement was read to the Court on behalf of Ms Leng's family. The statement was written by the victim's mother.
Whilst the death of Ms Leng has affected all of her family, it is her mother, Zhang Mei, whose loss is the greatest. Ms Zhang has told the Court that her daughter Mengmei was her only child, and she feels shattered and lost as a result of her death. In the Chinese tradition children look after and support their parents in old age, and Ms Zhang has been deprived of a future spent with her daughter, being cared for by her. Her health has been affected by her loss and she struggles to cope.
Ms Leng's grandparents too have suffered, with the health of both deteriorating. Her grandmother has sadly died since Ms Leng was murdered.
Ms Leng's aunt, the offender's wife, feels responsible for Ms Leng's death, blaming herself for having worked the few extra days that meant she was not at home on the evening of 21 April 2016.
Her cousins, with whom she lived in Sydney, have also been badly affected by Ms Leng's murder. Peitung Chan, who herself is a victim of the offender's perversion, has withdrawn from her studies and has isolated herself from her friends. Sing Wang Chan, like his mother, feels responsible for what happened to Ms Leng. He reasons that had he not returned to China before these events, he would have been in Campsie and able to protect his cousin.
Ms Leng was a daughter, granddaughter, cousin, niece, and friend, and her loss to those who loved her is not just the cause of great grief and pain, but must also be quite unfathomable. They must be left wondering how and why these terrible crimes could have happened. Ms Leng's family have my deepest sympathy.
It must be understood, however, that these proceedings cannot be the measure of the value of Ms Leng's life, or of the harm done by her murder. That is something that no court can redress.

The Offender's Circumstances

The offender is 29 years old. He has no criminal history.
He both gave evidence and called evidence from Dr Richard Furst, forensic psychiatrist, and Mr Nicholas Lavidis, psychologist.
Dr Furst saw the offender on two occasions in November 2016, and then more recently, this month. His initial consultations were to consider the question of fitness, and also whether the offender had a defence or partial defence available to him. Dr Furst concluded last year that the offender was fit to be tried and had neither a mental illness nor an abnormality of mind. He confirmed that opinion at his recent consultation with the offender.
Dr Furst took a history from the offender of having been born and raised on the Central Coast of New South Wales. The offender described an unhappy childhood, being teased and bullied at school and feeling socially isolated. He said that he dreaded leaving the house and going to school. He fared a little better in high school, although he remained unpopular with fellow students. He became interested in computers from about the age of twelve. His parents separated when he was a teenager and his mother later remarried. His father lives in Queensland. The offender's brother is said to have a form of schizophrenia.
The offender told Dr Furst that he left school before completing Year 10, and finished his school certificate through a TAFE college. He undertook an IT course at TAFE and subsequently obtained employment in that field. He was fully employed up until October 2015, when he was retrenched.
Dr Furst reports that the offender had two long-term relationships, the first when he was at school, and the second with a neighbour. He met his wife in 2010 and they were married in 2012. At that time the offender was aged about 24 years old. His wife is considerably older. Although the offender said that his marriage was good at the start, the couple's intimacy diminished and he felt as if he and his wife drifted apart. His wife, who had previously expressed a desire for children with the offender, later changed her mind, leaving the offender feeling rejected and inadequate. He began to use the services of prostitutes.
When he lost his job in October 2015 he felt depressed and began to overeat, thus gaining weight. He was using drugs on a regular basis, especially methylamphetamine, or "ice", having been introduced to it in 2012. From the later months of 2015 the offender told Dr Furst that he was using about half a gram of ice each day. He said that the drug kept him awake and made him more sexually aroused.
The offender told Dr Furst that at the time of the murder he was using a lot of ice and experiencing confusion. He said that he had memory gaps for the week of the murder and had experienced blackouts.
On examination, the offender denied hearing voices or feeling paranoid. He was logical and coherent and there were no indications of psychosis. Dr Furst considered the offender to be of at least average intelligence. Dr Furst saw no evidence of a mental illness, noting that the offender's actions were suggestive rather of sexual deviance. He said: "He does not appear to suffer from delusions or a defect of reason in the McNaughton sense. His alleged actions of filming the victim and himself in a sexual manner for sexual gratification, images of the victim gagged and bound with a look of horror prior to her death, the deletion of such images and allegedly disposing of the victim's body in a blowhole at Snapper Point on the Central Coast a long distance from Campsie were actions that were highly suggestive of sexual deviance or gratification driving his alleged actions. His alleged actions are also indicative of conscious choices, knowledge of his actions and knowledge of the wrongfulness of his alleged actions."
The doctor concluded that there was no indication that the offender was psychotic, and thought he may have been overstating the amount of drugs he had consumed at around the time of the offence. He thought the offences were most likely to have been driven by deviant arousal of a violent and likely sexual manner.
Dr Furst concluded, on the basis of the offender's reported history, that he had a substance use disorder, and possibly an autism spectrum disorder, although he noted that defendant had maintained a reasonable level of psychosocial function.
Dr Furst was asked in his oral evidence about the effects of methylamphetamine. He said that it was a drug with a disinhibiting effect and it could make users more aroused, elated, reckless, and sometimes violent. With respect to the offender, the doctor said that if he was in fact using ice as he claimed, there would be issues of sexual disinhibition and increased aggression.
The doctor noted, however, that the offender had, prior to seeing him in November 2016, maintained that he had used only minimal amounts of ice. The doctor referred to Justice Health records, some of which are in evidence as exhibits A8 and A9, which record the offender's firm denial on entry to custody of being a regular ice user. In those records the offender is noted as asserting that he had used ice in the two months prior to entering prison in fairly small amounts only. On 5 May 2016 he said that he had not used any stimulant in the previous four weeks. He was not assessed as intoxicated or withdrawing from intoxicants.
Dr Furst said it was difficult to know the truth of the offender's drug use having regard to the different versions given by him on that subject.
Dr Furst did not accept the offender's claims to have memory loss for the period of the murder. He said that methylamphetamine typically made users more aware of things around them, rather than to have no memory of them. He said it was possible that the offender's claims in this regard were no more than a convenience.
He considered the possibility of psychogenic amnesia but did not think it was relevant to the offender. He said: "He is, basically, I think not telling the truth about his memory loss."
Later the doctor agreed that he did not accept that the offender's memory was poor. He said: "I don't believe he was out of it and had no memory. […] It is also unlikely to have amnesic episodes where one has patches of memory recovery during such episodes."
As to the possibility of psychosis, including drug induced psychosis, Dr Furst did not consider that the offender had ever been psychotic. He had denied symptoms consistent with psychosis shortly after arrest and denied them to Dr Furst in November 2016. No bizarre behaviour was observed and nothing indicative of psychosis. By contrast, the offender had acted in a purposeful way in cleaning the scene of the crime and disposing of the body.
The doctor was not able to agree with the opinion of Mr Lavidis that drug induced psychosis was a possibility. He thought sexual voyeurism or sadism was likely to be more relevant. He said in evidence: "The actions of recording victims in sexual acts towards them in the lead-up and taping young women in various stages of undress is more suggestive of voyeurism, I would say, like peeking and looking at other people, rather than actions which are clearly arousing to him because that is captured in the videos he recorded and he was sexually aroused at the time of recording them.The other possibility is there is also some type of sadistic fantasy and that might be more relevant in terms of the murder, as in the victim was bound and gagged prior to being stabbed and killed. So that was also recorded or photographed, so that suggests there is some kind of gratification from the actions that were inflicted on the victim and when the victim was in a helpless position."
Dr Furst could not be conclusive because the offender had not spoken of the events.
The multiplicity of the wounds inflicted on Ms Leng was, Dr Furst thought, indicative of a "sadistic drive", whilst the acts of photographing her bound and gagged was "in keeping with deriving pleasure or wanting to record the suffering of another human being and the dominance, could be dominance over the other person, which in this case was complete and proved fatal.
Again, he could not be conclusive because of the offender's failure to discuss the offences.
The fact that the offender photographed not just Ms Leng but also Snapper Point was suggestive of a wish to access the memories again in the future for pleasure.
Dr Furst said that it was possible that the offender had bound, gagged and photographed Ms Leng as a consequence of sexual deviancy and, thereafter, killed her in a panic at the prospect of discovery, but considered the number of stab wounds inconsistent with that possibility.
Mr Lavidis is a psychologist with both a clinical and forensic practice. He has particular expertise in drug and alcohol counselling. He assessed the offender over four one hour interviews and subsequently prepared a report dated 2 April 2017 (Ex. 2.1). Shortly before the sentence proceedings, he again saw the offender, for over two hours, and prepared a second report of 6 December 2017(Ex. 2.2) .
Mr Lavidis reported that the offender had expressed his remorse for his crimes, but maintained that he had a poor memory of the events. He said he had only snippets of memory having been awake for a week using methylamphetamine, and smoking synthetic cannabis. He claimed to have always had memory problems, dating back to childhood, and having at one stage in childhood being placed on "a memory pill", which he could not identify.
On formal assessment the offender was found to have "IQ, concentration and memory […] within normal limits".
The offender gave Mr Lavidis a history which was in some respects consistent with that given to Dr Furst. As to his drug use, he gave a rather more detailed account of it, telling Mr Lavidis that he had been reintroduced to methylamphetamine by his wife in 2016, as opposed to in 2012 as he reported to Dr Furst. To Mr Lavidis he also claimed to have experienced both aural and visual hallucinations, which he described. He had denied any hallucinations to Dr Furst.
On the basis of the offender's assertions as to methylamphetamine use, Mr Lavidis considered that he may have committed these crimes when in the grip of a drug induced psychosis. Mr Lavidis accepted that the offender was, as he asserted, unable to remember much about the offences. He observed that memory loss can follow both a psychotic episode and prolonged methylamphetamine use.
In his second report, Mr Lavidis referred to the offender's remorse and tearful expressions of concern for the effect on his family and the victim of his crimes.
The offender again gave a history of heavy drug use, stating that he commenced using ice when he was married to his wife [in 2012] with ice use escalating in 2015. In January and February 2016 he was using two to three "8-balls" of ice each day (where an 8-ball is approximately 3.5 grams in weight). Leading up to the murder he said he was using three 8-balls and watching pornography.
He told Mr Lavidis about the flashes of memory he recalled from the murder - an argument, blood in the sink, his face reflected in the mirror, being in the car at his parents' house - but nothing else. He told Mr Lavidis that after his step-niece was missing he became worried that "he had done something he could not remember". When he was arrested he panicked about whether he may have been responsible. He said to Mr Lavidis, "It should have been me. It should have been me."
In oral evidence Mr Lavidis said that, in his experience, synthetic cannabis was associated with hallucinations. He said drug use as described by the offender could lead to memory problems, that being consistent with his clinical experience. He said: "There are people who do use, and a large volume of people, who use ice and then will use cannabis to come off the ice, sort of what they call a bender. That is consistent. What is also consistent is the increase in tolerance to the ice or the increase in tolerance to any substance. The results unfortunately with ice is you could experience a psychotic episode. You would experience memory loss. You would experience a lot of things. The same with the synthetic cannabis, same process. Every drug works pretty similarly except the effect on the body might be different."
Mr Lavidis thought that using methylamphetamine and synthetic cannabis could quickly lead to psychotic episodes. He was asked: "Q: Can be there be degrees of symptoms of psychosis from mild to high or severe?" A: No. A psychotic person is a psychotic person. I mean, they view the world psychotically. They are not oriented to time and place. They have delusions. They don't understand what they are doing in full to some degree. That is somebody who is psychotic. Can I just say, though, they still plan and here is the reason; a lot of people who are psychotic, you may have heard this, they may have escaped from mental health units so you don't lose all your faculties. There are faculties that are still there to some degree. As to memory at the end of a psychotic period, very few people actually remember what happened."
He said that psychotic people could perform ordinary tasks "to some degree".
He conceded that it was possible that the offender was falsely claiming to have memory loss of the events.
The offender, who was 27 at the time of the offences and is now aged 29, gave evidence after Dr Furst and before Mr Lavidis.
Having heard the victim impact statement given to the Court he was asked how he felt. He said in part: "There's no words, there's no level words of expression I can give. I can never reverse the actions that I've done, though I would gladly exchange position in the actual situation. I would rather her be here than me. She had a beautiful future ahead of herself. I could only imagine what the family is going through. If I was her I don't think I could forgive me. I think she" - that is Ms Cheung - "is right in her impact statement. I deserve life. I betrayed my own family and hers for my actions. I disgust myself."
He said that his use of ice increased massively at the start of 2016 and he had been using synthetic cannabis to "come down" from the intoxication of methylamphetamine. Although he described a synthetic substance as useful for that purpose, he said that when using it he started getting blackouts and waking up in places without knowing how he had come to be there.
Asserting that he had no memory of these events, he said: "I understand I did an unforgivable thing but I can't understand why I got there, into that situation."
Despite earlier denials (such as that to Dr Furst) he conceded being sexually attracted to Ms Leng, and to his stepdaughter. He said that "the sexual desire would increase when I was on ice".
He was asked about the lies he had told police but said that: "I wasn't sure at the time. Straight after the drug I was very hazy. I took a few, a couple of days coming down off the drugs. As soon as my wife and I realised there was something wrong, when I got home, I decided that I just wanted to clear my head, so I stopped, but I couldn't figure out what exactly had happened until a little later."
The offender maintained that he had no more than flashes of memory of the offences, had not initially believed himself responsible for what had happened to Ms Leng, and had only come to that realisation later (necessarily at a point after he had been charged, as he said he discussed his amnesia with his lawyers).
He blamed his memory loss on his use of drugs, or because of stress saying, "I don't remember because of the stress of the moment, or it could be from the drugs."
Although Senior Counsel for the offender described what the offender had said to police as lies, the offender did not appear to fully concede that, asserting that the police had "hounded" him and he filled in the gaps in his memory as best he could.
He said that he had partial memories only, including driving to the Central Coast and being at his parents' house.
As to his assertions to police and Justice Health authorities that he had not used ice in the month or so prior to entering custody, and then only in small quantities, he said that he had been told that he would be put on methadone if he admitted using methylamphetamine. He also said he was embarrassed.
He blamed drugs for causing "bad actions", that would normally be under control, to come out. When asked in cross-examination to tell Ms Leng's family and the Court what had happened the offender said: "I really honestly don't know. The only thing I can think of is, I know that ice makes you do some silly stuff, especially mixed with marijuana. It probably brought out some of my sexual frustration. My wife and I hadn't had an intimate relationship for quite some time."
The offender claimed that he had gone to bed normally on the night of Thursday 21 April 2016, with no memory of having seen Ms Leng on Friday morning, or of having bound, gagged or photographed her. When asked about deleting the images of Ms Leng that he had taken at the time, the offender suggested that he had not known the images were on the phone, either when deleting them or thereafter, until he had seen the police brief of evidence. He said: "I was cleaning out a whole heap of stuff on my phone, because I had remembered about the previous figures that I deleted, and I wanted to make sure there was no more sexual perverse stuff on there."
He denied deleting images on the phone intending to avoid detection for Ms Leng's murder.
He agreed that, in July 2016, he had told his lawyer that an Asian man had killed Ms Leng saying, curiously, "I remember an Asian man, but I realised that was not on the same day. I remember him, but I don't think he was involved."
He later conceded in evidence that there was no Asian man involved in the crime.
When it was put to him that he was lying in his evidence the offender said: "I came here to tell the truth. I came here to help in some little way - some little way - whether they appreciate it or not, to help with the mother's grief."
Although the offender continued to deny being able to explain why he had hurt Ms Leng, who he said was his "TV buddy" and good friend, he did raise the prospect that he had become angry with her, referring to occasions when she would put Ms Chan, with whom he conceded he had been in love, down. He said: "The only other thing I could think of when [Meimeng] used to tease Peitung and put her down, but that's when I got angry."
Later, he returned to drug use, blaming it for the crimes. He said: "The only thing I could think of is if I've gone overboard while on drugs. That's the only thing I can think of."

The Gravity of the Offending

There is no question that this is an extremely grave series of offences and the offender does not argue otherwise.
Even sequences 3, 5 and 7, the offences reflecting the offender's acts in filming Ms Leng and Ms Chan as each slept in their bedrooms, and masturbating over them, are serious examples of an offence contrary to s 61N, in that both women were vulnerable in sleep, and vulnerable to a breach of their privacy and security by the offender, a trusted family member. The fact that the offender filmed the incidents, keeping the footage for some time, presumably for his own sexual gratification when viewing it, heightens the gravity of these crimes. These crimes fall towards the top of the range of seriousness for such conduct.
The offence of detain for advantage is also a very grave example of a crime of this nature, despite the fact that there is much about the circumstances of the offence which cannot be determined on the evidence. I am not able to determine the period of the detention, being able to conclude only that Ms Leng's detention began some time after she sent her last text message at midnight on 21 April 2016, and ended with or shortly before her murder some time before 3.19am on 23 April 2016 when her body was removed from the apartment by the offender.
What can be said is that during the period of the detention, which was prolonged if unquantifiable, Ms Leng was subjected to conduct that terrified and degraded her by a man who was physically much larger than her, and who could have readily overpowered her.
The offender, who was later able to describe her pyjamas to police in detail, either removed her clothing himself, or forced her to do so. With her naked and exposed, he then bound Ms Leng's hands with heavy tape, and gagged her with what appears to be (from Ex. B) a number of layers of the same thick black tape. That must have been painful as well as profoundly disempowering. The offender effectively deprived Ms Leng of her voice, and the only means she had of calling for help.
The only motivation for detaining Ms Leng in this way, and rendering her completely vulnerable and degradingly exposed, was the offender's own sexual enjoyment, and to permit him to commit other crimes, being the recording of images of Ms Leng's breasts and genitals. Whilst the offender in evidence denied deriving any sexual enjoyment from these sadistic acts, that is at the heart of this offence. It was a depraved and sadistic act, committed by a man in a position of trust to Ms Leng, and in a place that should have been one of refuge and safety for her.
There followed the commission of the offences which comprise 19 of the 21 offences on the Form 1 document, to be taken into account when the offender is sentenced for Ms Leng's murder. The offender took 19 separate images on his mobile telephone of Ms Leng's private parts. Of those in evidence as Ex. B, the majority are extreme close-up views of her genitals, for which Ms Leng was obviously forced to spread her legs widely. She must have felt utterly degraded and completely humiliated, as well as frightened. Having taken the images, the offender kept them on his mobile telephone until such time as he deleted them from fear of detection. The only possible motivation for keeping the images prior to that time was so that the offender could look at them, for his aberrant sexual pleasure.
There followed, at a time I cannot determine, Ms Leng's murder. In what circumstances the offender came to murder Ms Leng is not established on the evidence. Neither does the evidence allow the Court to conclude why this terrible crime was committed.
At some point after having taken the photographs of Ms Leng bound and gagged, the offender must have unfastened her bonds since, when he attacked her savagely with a knife, probably in the bathroom, she was able to use her hands in a desperate, and ultimately futile, attempt to defend herself.
The most that can be said about the knife the offender used is that, in the opinion of the forensic pathologist who conducted the post-mortem, the blade was approximately 20mm in width, and it was likely to be longer than 40mm. The knife was not identified or recovered, necessarily either because the offender disposed of it, or because he cleaned it so thoroughly that it was not able to be forensically identified by police as the murder weapon.
Using the knife the offender stabbed Ms Leng 31 times to her head, neck, torso and hands, acting with an intent to kill. The fatal wound penetrated the larynx, almost transecting it. This was an attack of significant savagery.
The defence wounds to Ms Leng's hands are indicative of her fight for her life; the white blood cells in the tissue of her lungs show that she survived her wounds for a period of time. She must have been in great pain, and great fear.
Like the other crimes committed in this period between midnight on 21 April and 3.19am on 23 April 2016, it occurred in Ms Leng's home and was committed by a man she should have been able to trust. The offender was only able to live in the Campsie apartment, a property evidently owned by Ms Leng or her mother, because of the familial relationship; he abused that relationship in the most egregious way to carry out this attack on Ms Leng. This is an aggravating feature: Jonson v R [2016] NSWCCA 286, at [40] - [42]; [50] - [52].
Given his lately acknowledged sexual attraction to Ms Leng, and the obvious sexual motivation behind these crimes, the question is inevitably raised as to whether the offender sexually assaulted Ms Leng before her murder or after. Although it seems likely that he did, the evidence does not allow any conclusion to be drawn beyond reasonable doubt as to that fact, not least because the offender placed the body into sea water. Accordingly, I must set it aside.
Having killed his wife's niece, the offender kept her body with him for some period, although the duration cannot be determined. In that time, he spoke with family on the telephone, having apparently quite ordinary conversations, and cleaned the apartment.
His conversation with his mother is likely to have been prompted by a need to create a reason to travel to the Central Coast; by that stage the offender must have considered the Blowhole at Snapper Point, an area he knew well, as a suitable spot at which to dispose of Ms Leng's body.
It is unlikely that the offender took the body to the garage of the apartment block until 3.19am on 23 April 2016, since that is when his security card accessed the lifts of the building to go to the carpark. He callously pushed Ms Leng's remains into the boot of his car, having wrapped her naked body in black plastic.
It seems extraordinary that, given what he had done and what he was setting out to do, the offender would stop at a petrol station soon after and purchase drinks for himself, as if he was no different from the other early morning motorists travelling to work or some other legitimate destination. The offender presumably consumed the drinks he bought as he drove north, with Ms Leng's body in the boot.
He drove to Snapper Point. There, he threw Ms Leng's body into the turbulent waters of the Blowhole, where it was hurled repeatedly against the rocks of the surrounding cliffs, sustaining the multiple blunt force injuries later seen at the post-mortem examination.
It was a remarkably contemptuous act against the remains of a young woman whom the offender claimed in evidence to be his good friend, and is relevant to the assessment of seriousness: R v Yeo [2003] NSWSC 315 at [36]; Knight v R (2006) 164 A Crim R 126; [2006] NSWCCA 292 at [28].

The Role of Drug Use

Having considered Dr Furst's evidence, and the circumstances of the crime, I have concluded that it arose from the offender's sexual perversion and sadism, and not from drug use.
Although the offender sought to blame drug use for the crimes, I do not accept that his use of methylamphetamine and synthetic cannabis was at the heart of these offences.
The offender's claims of heavy drug use came well after the commission of these crimes. On arrest, and only days after the murder, the offender reported that he had used ice for 2 months, whilst cannabis was a drug he used only occasionally (Ex. A10). On being assessed on reception into the Corrections system, the offender answered questions about use of "stimulant type substance use", "cannabis use" and "other drug use", "No" (Ex. A9). He told Justice Health on 9 May 2016 that he had used ice for the past 2 months, smoking it 5 or 6 times only. He denied other drug use.
Only in November 2016 when seeing Dr Furst, for an assessment that he knew was directed to possible mental incapacity, did the offender claim disabling drug use. Dr Furst thought these claims were probably exaggerated, if not false.
In his evidence to this Court, the offender said that he had not told officials the truth when he entered into the custodial system as he had been told by other inmates that he would be placed on methadone if he confessed to drug use. Firstly, it is difficult to see how the offender could have received that information from prisoners at a time when, soon after arrest, he was in the Sydney Police Cells (Ex. A10). Secondly, it is inherently unlikely that the offender would have been given information that is not consistent with what occurs within the Corrections system. A user of methylamphetamine, a stimulant, would not be placed on the methadone programme, methadone being an opioid replacement.
Finally, his evidence of how he came to pay for as much as 10 to 12 grams of methylamphetamine weekly - that is, from cash earned by his wife and left lying about the home - seems implausible, and is inconsistent with the evidence that he had arranged to retrieve $300 from his mother because he was running out of money.
It is more likely that the offender was initially truthful in his account of short term, very occasional use of methylamphetamines, later exaggerating his drug use to explain his criminal conduct, and account for his claimed memory loss.
Like Dr Furst, I do not believe the offender was truthful about drug use, or his amnesiac state.
He referred in evidence to "bad actions" that would normally be under control, emerging, and this may be something more like the truth.
In any event, s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that a court is not to take an offender's self-induced intoxication into account as a mitigating factor. Nor can it mitigate the offender's moral culpability to any extent in my view.

The Question of Remorse

The offender told Mr Lavidis that he was remorseful, and he expressed his sorrow for his crimes in the witness box. He agreed in cross-examination that one way of expressing true remorse for his actions was to assist the victim's family to come to terms with what had happened by telling them and the Court what he did to Ms Leng and, importantly, why he did it. Despite that, the offender could not, or would not, answer the Crown Prosecutor's questions on these topics, pleading amnesia.
Having watched the offender give his evidence, and considering all of the other available evidence, I found it difficult to accept that the offender was genuinely remorseful. He had the air in the witness box of someone playing a part, and saying what he thought he should say to present the best possible impression of himself. Whilst he was occasionally tearful, his distress seemed somewhat contrived.
That the offender said on affirmation that he was remorseful does not mandate an acceptance by the Court that he is. As Buddin J said in Alvares v R [2011] NSWCCA 33, with the concurrence of other members of the Court, and confirmed in SJ v R [2011] NSWCCA 160 at [25]: "...a sentencing judge is not bound to accept assertions by an offender that he is remorseful, even when that assertion is made in the witness box: R v Starfrace (1997) 96 A Crim R 452. Nor will what Simpson J has described, in Pham v R [2010] NSWCCA 208 [at para 33], as 'the often ritual incantation of remorse and contrition' be automatically accepted by a sentencing judge."
The offender's assertions of deep remorse need to be viewed against his conduct overall. Initially, rather than confessing the crimes that I do not accept he did not know he committed, and at least preventing the days of distress to her family when they believed Ms Leng to be missing, the offender disposed of her body, deliberately, and having thought out his actions. He played the part of the worried relative, even telling the police that he had been a sort of father figure to Ms Leng and was distressed by her disappearance.
His conduct in placing telephone calls to her mobile phone, making enquiries of her friends, and anxiously reporting her as missing to her consulate when he well knew she was dead was cynical at best. Everything about these acts suggests a man playing a part.
When first spoken to by police he gave a detailed account of his movements surrounding the time in which Ms Leng was last seen alive, which was wholly fabricated. In an interview he gave even more detail, down to sharing tearful details of the meal he and Ms Leng had happily shared. I do not accept that this detail was simply something given by a man who genuinely did not know what had happened, so as to "fill the gaps". Rather, this was a complex and deliberate fabrication intended by the offender to divert the investigation from him.
Only when the investigating police began to probe his account, and slowly produce pieces of evidence they had gathered that cast doubt on his claims, did the offender's version shift, although at first only to endeavour to address the evidence he was confronted with.
He denied absolutely the commission of the offence.
When he first saw Dr Furst in November 2016, by which time the brief of evidence had been served or at least substantially so, and the offender would have well understood the strength of the case against him, he was claiming to have used drugs heavily at the relevant time and to be amnesic. Those claims, I regard as likely to have been fabricated by the offender in an attempt to meet evidence that could not be gainsaid.
Although the offender entered pleas of guilty to his crimes in August 2017, about 15 months after having been charged, that was in the face of incontrovertible evidence. Realistically, once the police had seized the offender's mobile telephone, and recovered the material he had deleted, a plea of guilty was virtually inevitable, absent any mental illness defence, which, as at November 2016, the offender knew was not available.
In some circumstances a plea of guilty may be evidence suggestive of remorse. I do not so regard it in this case.
Had the offender been genuinely remorseful, that is, felt a deep regret for the wrong he had done, and a wish to make such amends as he could to Ms Leng's family, he would have given an honest account of what he did and why. I do not believe that the offender has done that, despite his testimony on 13 December 2017. I have concluded that the offender can give an account of these events; he has chosen not to.

The Pleas of Guilty

The pleas of guilty were entered in the Local Court and, accepting that an accused person is entitled to explore matters such as whether a mental illness defence is available and the like, his pleas were entered at an early stage. Ordinarily, a discount on the sentence that would otherwise be imposed of 25 percent would be appropriate, to reflect the utilitarian value of the pleas.
In this instance, as the offender conceded, the provisions of s 22(1A) of the Crimes (Sentencing Procedure) Act are of relevance. That section provides: (1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
In the circumstances of this case, a 25 percent discount would render the penalty disproportionate to the crimes, and be incapable of reflecting their gravity.

Prospects for the Future

The nature of the crime and the sexual motivation for it also gives rise to considerations of future dangerousness and the protection of the community, as well as to questions of rehabilitation.
Assessing the level of threat posed by an individual decades into the future is not greatly removed from crystal ball gazing; however, it is a relevant feature to the exercise of the sentencing discretion and it must be considered.
Dr Furst gave evidence that the absence of any history of prior offending pointed to a lesser risk of future offending than an individual with a criminal record. However, he said that: "The negative factors that stand out for Mr Barrett are the fairly horrendous nature of what he has actually done, murder, and as you know there were about 30 stab wounds or thereabouts and other indicators of sexual deviance. So the presence of sexual deviance and the presence of violent offending towards the victim at the time of the sexual offence are negative factors which tend to increase risk."
Whilst there are a number of therapeutic courses that the offender can undertake in custody, the efficacy of any such course is dependent to a considerable extent upon the level of engagement of the participant. Insight is important. At the present time, the offender is not even willing to acknowledge a memory of what he did; that he could be insightful seems a remote prospect, and may be an obstacle to rehabilitation. Whilst whatever sexual deviancy the offender may have remains unidentified, unacknowledged, and untreated, the offender must continue to pose some level of risk, perhaps until he is of too advanced an age to act upon his sexual desires.
There is a possibility that the offender has an autism spectrum disorder, but that is undetermined. The possibility of it is raised by the offender's self-report of being socially isolated as a child. As Dr Furst observed: "The reason the autism spectrum disorder came up as a possibility, had to do with his history of being what one might term as social isolation - having no friends at school [...] and being picked on and bullied and having largely solitary interests".
If the offender does have such a disorder, it could be relevant to future dangerousness. The evidence is, however, inconclusive and I have not treated it as a factor of any great relevance to sentence.
On the available evidence, I am simply unable to assess the offender's prospects of rehabilitation. There may be questions of future dangerousness.

Does This Offence Call For a Sentence of Life Imprisonment?

Much of the argument before the Court concerned this question.
The offence of murder carries a maximum penalty of life imprisonment and a standard non-parole period of 20 years in the circumstances of this case. These are the guideposts against which sentence is determined, although parole is not relevant in circumstances where a life sentence is imposed: R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469 at [122], [125].
In some circumstances, a life sentence is mandatory. Section 61(1) of the Crimes (Sentencing Procedure) Act provides: 61 Mandatory life sentence for certain offences "(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence."
It is the combined weight of those four features - retribution, punishment, community protection and deterrence - which is relevant to the determination of the question of the application of s 61: R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19, at [52]-[54].
Regard must also be had to s 21(1) of that Act, which provides: 21 General power to reduce penalties "(1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term."
In R v Miles [2002] NSWCCA 276 it was held at [204] that: "There is a two stage process involved in determining whether a life sentence is mandated. The Court must first determine whether on the objective facts the level of culpability is so extreme that it warrants the maximum penalty. The Court must then determine whether the subjective factors are capable of displacing the prima facie need for the maximum penalty."
At common law a sentence of life imprisonment was regarded as intended for those cases where the facts of the crime are such as to place it in "the worst category": Ibbs v The Queen (1987) 163 CLR 447 at 451-452; [1987] HCA 46 at [4]; Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; [1988] HCA 14 at [15]. However, in The Queen v Kilic (2016) 91 ALJR 131 at [19]-[20]; [2016] HCA 48 at [19]-[[20] the use of the term "worst category" was discouraged as apt to be misunderstood. Certainly, for those who loved Ms Leng, that her murder is the worst of crimes could not be a matter about which to debate. The process of a Court conducting an assessment of the seriousness of the crime that took away a greatly loved young woman must seem offensive at best. For Ms Leng's family, no crime could be worse than this.
However, the principles of law applicable to the determination of sentence require the assessment to be made.
The question for the Court is whether the offence is so grave as to warrant the imposition of a life term considering both the circumstances and nature of the crime: The Queen v Kilic at [18] and [20]. It is not the case that a "lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness": Veen v The Queen (No 2) at 478.
It is for the Crown to establish that the case meets the s 61(1) criteria to the criminal standard: The Queen v Olbrich [1999 HCA 54; 199 CLR 270.
Senior Counsel for the Crown submits that the offender's crime was one of extreme violence and brutality, being terrifying, humiliating and prolonged, and that it is deserving of life imprisonment. It is contended that the combination of a number of features demand such a sentence, being: 1. the sexual motivation behind the crime, 2. the detention and degradation of the victim which preceded it, 3. the savagery and multiplicity of the wounds inflicted on Ms Leng, 4. the fact that the offence was committed in her home, 5. the abuse of trust by a family member who lived under the same roof as Ms Leng, and 6. the treatment of her body.
Senior Counsel for the offender concedes that the offender's crime is objectively extremely serious, and well above any notional mid-range point. However, it is argued that, whilst a lengthy determinative sentence is called for, s 61(1) is not enlivened in the circumstances of the case. The offender points to the evidence which suggests that his crimes were committed under the influence of drugs, a feature which, it is submitted, removes it from the extreme cases contemplated by the section. Further, the crime is argued to be one committed without any degree of premeditation, although it was prolonged in execution.
As I have already stated, this was a despicable crime of extreme brutality and great wickedness. Its motivation was sexual.
The offender was sexually attracted to Ms Leng, and had both filmed her as she slept and he masturbated, and secretly as she bathed. These actions, not said to be the product of a drug induced haze, bespeak a perverted sexual obsession with the victim. It seems likely that the murder occurred, as the offender's speculation seems to hint, because he lost control of "bad actions".
Use of drugs may have contributed to that loss of control, through the disinhibition of which Dr Furst spoke, but this was not a crime committed in a state of drug induced psychosis; it was a sexual crime committed by a socially inadequate man who had long thought about the victim sexually and acted on his thoughts, probably relatively spontaneously, by detaining her, filming her naked, and then brutally murdering her. Although I cannot conclude it beyond reasonable doubt, and thus must set it aside, I record here that I consider it likely that the offender murdered Ms Leng for the sexual pleasure that he derived from the act and her suffering.
That he committed the crime in Ms Leng's home, and then disposed of her body by throwing it off a cliff into the ocean, heightens the overall gravity of the crime.
It is necessary to determine whether the level of culpability for Ms Leng's murder is so extreme, that the community's interest in its protection, and in deterrence, retribution and punishment, can only be met by a sentence of life imprisonment.
Having carefully considered the evidence, submissions of Senior Counsel, and the authorities to which I have been helpfully directed, I have concluded that the criminality of the murder of Ms Leng can be adequately addressed by a determinative sentence.
In reaching that conclusion I have considered the offender's age and willingness to undergo rehabilitative programmes, his acknowledgement of responsibility for his crimes and his former productive life and good character.

Other Issues

That being the case, questions of concurrence and accumulation must be addressed. The offences reflected by sequences 3, 5 and 7 are distinct from the kidnapping and murder of Ms Leng. Whilst there is some commonality in the sexual motivation of all of the crimes, a significant degree of accumulation is required between those offences and the offences of late April 2016, ameliorated only by the principle of totality. That is particularly so for the offence involving Ms Chan, she being a separate victim to Ms Leng.
The kidnapping and the murder also call for a degree of accumulation. I am guided in determining the extent of concurrence and accumulation by the principles expressed in Cahyadi v R (2007) 168 A Crim R 41, 47 at [27]; [2007] NSWCCA 1, per Howie J at [27] : "[...] there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the offences represent discrete acts of criminality or can be regarded as part of a single episode of criminality".
Although a discount of 25% on sentence would reduce the non-parole period below that which is the minimum term the offender must spend in custody to reflect the gravity of his crimes, some recognition should be made of the utilitarian value of the pleas of guilty. I propose to allow 10% for that purpose.
A finding of special circumstances is not appropriate or necessary in view of the extended period that will comprise the non-parole period as a consequence of the ordinary operation of statute. Whilst the offender may require assistance with drug rehabilitation, that can be given to him in custody. I did not accept the opinion of Mr Lavides as to the extent of the applicant's usage, and possible amnesia, preferring the evidence of Dr Furst.

Sentence

I have concluded that an aggregate sentence pursuant to s 53A(1) of the Crimes (Sentencing Procedure) Act is appropriate in all of the circumstances.
Having been previously convicted of each of the offences before this Court, and taking into account the Form 1 offences, the offender, Derek Barrett, is sentenced to a term of imprisonment of 46 years to date from 29 April 2016 expiring on 28 April 2062. There will be a non-parole period of 34 years and six months expiring on 28 October 2050.
The sentences that would have been imposed had separate sentences been fixed are: 1. For the offence of the murder of Ms Leng, taking into account 21 charges on the Form 1 document, a term of 40 years and six months imprisonment. 2. For the offence of kidnapping, a term of 9 years imprisonment. 3. For the offences of committing an act of indecency, 13 months imprisonment for each count.

Other Matters

The offender is advised that the Crimes (High Risk Offenders) Act 2006 (NSW) may apply to him.
I propose to make an order sealing exhibit B. It is not to be opened other than by order of a Judge of this Court or of a superior court.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2018

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