R v Chen

The circumstances of the offence 11The autopsy report indicated that the cause of death was multiple stab wounds. There is no question that these injuries were deliberately inflicted by the offender. 12The offender did not give evidence. She has, however, given a relatively consistent history of her relationship with the victim and the events of 8 and 9 February 2011 to the psychiatrists who have assessed her. 13Dr Westmore's 31 May 2011 report, for instance, records the circumstances in which the offender came to meet the victim in 2003, when she became aware that he had two sons in China. He told her that he had divorced his former wife and that they had an agreement that they could have one son each. She and the victim began living with each other, then separated and later commenced cohabiting again, after his son was brought to Australia. She then learned that the victim had not divorced his wife. His son soon returned to China. 14The offender continued seeing the victim and later found that she was pregnant. She decided to keep the child and then lived again with the victim, who she said was good to her older son. She said he soon ceased working, describing him as a 'real professional con man'. They set up a business with money which she provided. He had no money at all. She did most of the work in the business and the victim started going on overseas trips, to see if they could open the Chinese market. 15The offender objected to these trips and wanted to concentrate on the local market, but the victim persisted. At the time she believed in him and agreed to the trips, which she funded, paying over $100,000. Over the years he spoke about other business deals which he was pursuing. On one occasion she provided him with more funds, some $41,000, which he begged for, in order that he not be put in jail because a supplier in Poland was talking about legal action. The money was to be repaid by a person with whom the victim said he had been dealing, but it was not repaid. When she spoke to that person, he denied ever having received the money. 16The offender said that she made no money from any of the victim's trips to China. He also talked about obtaining work in China with a friend as a marketing executive and about getting a job in Hong Kong selling real estate. She spoke to his friend, who denied offering him a job. She then agreed to buy a house in Sydney, so that the victim would forget about his trips. She paid a deposit of $500,000 and he borrowed $740,000 or $750,000, she thought after falsifying documents, in order to obtain the loan. He then had $220,000 or $240,000, needing only $530,000 for the mortgage. 17The offender then thought that the victim would settle down and concentrate on the local business, but the relationship broke down. They agreed to separate. She then felt too depressed to look after their son and agreed that the victim could take him to China for at least half a year. She knew that the victim had only contacted his sons in China one or two times a year when he was in Australia. She wanted her son to be with his father for half to one year. He was only 3 or 4 and she thought that he could return to Australia to go to primary school. In the meantime he had his father and she could visit him as many times as she liked. She thought it would be better for him, because she was too depressed. 18They left in August 2008, but the victim asked her to pay all of their expenses in China, because he could not work, having to look after their son. The victim lived with his sister in China and the offender discovered that he had put their son into the most expensive preschool in China. She rang their son almost every day. The victim said he needed $40,000 for school fees and to buy a car. She had already sent him $8,000 or $9,000. He spent all the money she gave him on a car and she had to send over another $8,000 or $9,000 for school fees. 19The offender went to China, where she found their son was being bullied at school, by another boy who had returned with his mother to China from Canada. She saw that the victim and their son were doing things together with this mother and her son every day after school. She saw her son becoming aggressive with this boy. He told her that the boy was bullying him and that he had complained to his father, without success. With his mother there, he was doing something back to the other boy. She came to realise that the victim was having an affair with the other child's mother. 20Dr Allnut's report records that when the offender went to China in January or February 2009, she found that their son had been placed in boarding school. The victim refused to return him to her. She found their son was very unhappy, but he remained at the school for about half a year. She returned to China in June 2009, knowing that his visa was soon to expire. She thought that the victim had bought a unit and while he was asleep there, she searched for her son's passport. The victim woke up and she hit him with a frying pan, because she wanted to search his pillow and did not know what he would do, if he woke up. He threatened to go to police, but instead he called an ambulance, because she said that she would tell police how evil he had been. The next day she learned he had not bought the unit and she gave him money. She sought legal advice, but could not recover her son and could not obtain a new passport for him, without both parents' signature. No one could help her and she had to leave their son behind at school in China. He was extremely distressed and so was she. 21The offender later learned that the victim came to Australia in September 2009, to take $200,000 from the loan and that he had left their son behind alone. In November 2009 he told her that she could have their son back. After his return to Australia, their son was full of anger and hatred towards her and she felt guilty and angry towards the victim. She was depressed and saw Dr Law. She then devoted herself to their son and her work and over time he improved. By the end of 2010 she felt that they had made it. They were then having little contact with the victim. 22The offender told Dr Allnut that prior to the offence in February 2011 her mood was alright, that she was sleeping 4 to 6 hours a night, as had been her habit for 15 years, which was why she was taking Avanza; her appetite and energy levels were normal; she was busy at work, to the extent that she had little spare time; her motivation was providing for her sons. She kept busy and was not depressed, unless she had time to think. In social situations she was more forgetful. Her self esteem and decision making were alright and adequate. She lived and worked normally, took pleasure in her interests and had no suicidal ideas. She had suffered occasional nightmares about her son in China and sometimes felt anxious. She distracted herself from this by listening to music. She said that when she thought of the victim, she would feel sad and sometimes sorry for him. Her most significant stressor was her work and anxiety about her sons' wellbeing. She engaged with others, her relationships with her sons was good and her business was doing well. 23Dr Westmore recounted that in February 2011 the victim suddenly rang the offender on a Sunday to say that he was in Sydney and wanted to see their son. She suggested the following weekend, but he was to be gone by then. They were to try and arrange a suitable time to meet, and she was shocked to find him at their son's school the next day, when she went to collect him. They walked out of the school together and she agreed that they would go to McDonalds. She then asked him to transfer their vehicle into her name and he said to her "we see if you are cooperative". 24She said that she felt sick in his presence, but she left their son with the victim, arranging to collect him later. The victim later rang her, to say that he would bring their son home. She did not want him in her house, because on the last occasion he had come for dinner, she had lost $5,000, which she had reported to the police. She drove to collect their son, but encountered the victim driving towards her home. She refused to have him come to her home. 25Their son was excited to see the victim and wanted to be picked up from school again the next day. He called the victim the next morning, who said he wasn't sure, but that he would try. She tried to speak to the victim later and when they spoke, he told her that he was already at the school. She asked him to let her know when she should collect their son, but he turned up with their son at her home. She was nervous and not happy, but let him in. He had bought a game, which he had promised their son he would set up. 26He then asked her for a rental statement, which she told him to get from a real estate agent. He told her he wanted to increase the rent and she asked him to leave. He went to go upstairs and she asked him what he was doing and went with him. He called the real estate agency, which was closing. She then asked him to help her make a delivery, in order to get him out of the house. He said she could do it tomorrow, he wanted to play with their son. She was nervous, because he had previously stolen from her. He told her he would leave after dinner. 27While in the kitchen the victim asked her to remove a caveat she had put on the house. She refused. She asked if he wanted to sell the house and he said it was his business. She said it was her business, believing that he would not be able to pay the mortgage indefinitely. He said she surely didn't want the bank to sell the house. She said that she would not remove the caveat, unless he gave her money back or put the house in a trust in the name of their son. 28She asked him what he would do if she did not remove the caveat and he said that he could take their son again. She said she had his passport in her safe and he told her that he knew a man in China who could get him a passport, all he needed was a photograph. He said that he could change their son's name, it was just a piece of cake. 29The offender said she was frightened and couldn't bear to think back to what had happened in China, when she had been parted from their son. She didn't know what to do, but while cooking came up with an idea. She thought there would be no end if she didn't do something, there was no way she could let their son be back in that situation again. It was then that she put the sleeping pills in the soup. Her son later had two or three sips and the victim ate the rest of the bowl of soup. 30The victim fell asleep on the couch and their son was sleepy too, but did not fall asleep until midnight. She lay down with him. She was frightened and panicked, her mind was mixed up and went blank sometimes. Memories of their son in the boarding school kept flashing and coming back to her. She realised that she could lose him at any time. She could not think of what to do, so she went and tied the victim up. 31She thought of calling the police, to tell them the victim was going to kidnap their son, but she thought they could not be with her son for 24 hours and he had said that he could use another name. She thought of going to New Zealand to live with her sister and she thought of ringing her ex-husband, but she panicked. 32In Dr Nielssen's report, the offender gave a similar history, but also told Dr Nielssen that looking back, she realised that she had loved the victim, but that he had come into the relationship for money and that his wife in China had been in a similar situation. He used their son as a tool to squeeze money from her. She blamed herself for her son's unhappiness in China, where he spent a year in a strict boarding school, rather than with the victim. 33She also explained that when the victim came to Australia in early 2010, he had come to dinner and the next morning she found that he had stolen $5,000 from a drawer. She went to confront him at his motel and called the police, who could not help. Later she was told by police that he had made a complaint about her. She found, soon afterwards, that the house had been put up for sale and it was then that she put a caveat on. 34Dr Allnut's report recounted a somewhat different history, that she had already placed the caveat on the house when she saw the victim in 2010 and that she had told him about it and her intention to pursue legal proceedings, when she saw him. She said he was not at the hotel, when she went there, but she gained entry to his room and threw his suitcase down the stairs. 35She told Dr Nielssen that when the victim returned in February 2011, she was angry about the money and the harm he had caused their son and felt that he was very vulnerable to kidnapping. When she put sleeping pills in the soup, her state of mind was one of anger and fear. She sent her son to bed, but he took a long time to go to sleep and her mind was all mixed up and she could not come up with a decision. She tied the victim up and unsuccessfully tried to ring her ex-husband between 4 and 5am. She said that she had only bits and pieces of memory. 36She also told Dr Allnut that she had tried unsuccessfully to ring her ex-husband at 4 or 5am and that the victim woke up and she asked him to leave her and their son alone. Her older son woke up after hearing the argument, but he did not come down stairs. The victim was trying to break free and asking her to untie him and he vomited. She said that she did not think about killing him at any stage. 37She also told Dr Allnut that she had realised while their son was in China that the victim wanted to use his penis to capture women, by having children with them, so that he could control them. He thought he could get women to do whatever he said, if he had children with them. They were a tool for getting money out of women. She was convinced that he was a professional conman targeting wealthy women. 38The offender told Dr Westmore that at the time of the offence she had memories of their son screaming and being tied up at home. She explained that while their son was in China, he was not allowed home. He cried whenever she rang and the victim asked her for $50,000, $100,000 and $200,000. She went to China to see their son. He was sick at school, but she was not allowed to take him. The victim came to get him and would not let her have him. When she went to the victim's home the next day, she could hear their son crying, saying 'please don't daddy. Please don't'. When the victim opened the door she found their son tied up. Their son said the victim was angry all the time. The victim was holding a stick and was about to hit him when she put herself between him and their son, who could not move, because he was tied up. When she went to hold him, the victim hit her with the stick on the head and back. She threatened to call the police and the victim then let her take their son for two days. He told her that if he didn't get his money soon he could even sell him. She said she could see him sold. She could see all those kids in China, where they have people kidnap kids, break their arms, break their legs and put them on the street and make them ask for money. In her mind she could see the kids on the street and that he was one of them. She could not bear the thought that she could lose him anytime. 39Dr Westmore's report recounted that he had asked the offender about what she had done on 9 February. Dr Westmore said: "I asked her at this point what had she done. She said: "I can't remember exactly what I did but something in me, destroy the monster's weapon. He uses his penis to harm woman(sic) and children. Something inside me said, destroy his weapon, don't let him harm anymore women and children. I can't remember exactly what I did but I remember he tried to get up. I remember we fought. He tried to push his head to me. I remember he vomit a lot. I think the soup and he tried to break the string. I was so frightened, I didn't know how tight the string was. I was worried if he break the string. I remember I said, how can you do this to [A]. I remember I cut some of his penis. I went to flush it down the toilet, to flush it down so he couldn't harm anymore children and he couldn't harm anymore women." 40When she returned she saw the blood and was frightened and called the ambulance. She didn't know the time. Dr Westmore's report further recounted that: "I indicated that the Police Facts Sheet reported that she called the ambulance around 6.00 am. She said "I don't know the time". I asked her how long Peng had been tied up before she had cut him. She said "I remember he was leaning against the couch and he was like this (demonstrates a foetal position). I just can't remember. He struggle, he tried to get up and push his head towards me. I was fighting with him. All the time he was trying to break the string on his wrist. The next I can remember I cut something out of his penis. I went to the toilet and flush it down. After I came out of the toilet there was blood on the floor everywhere and I just rang the ambulance". I then asked her, was what she had done to the deceased, wrong. She said "yes but at the time he was like a monster to me, all his face was twisted. All the memories. All I saw in my mind, all those poor kids on the street begging for money. [A] was one of them. I knew Peng used his penis to capture women, to have children by them, use the children as tools to squeeze money out of us. Something just urged me to do it, don't let the monster to harm anymore children." 41When asked what time she had tied the victim up the offender said that she did not know. She had gone upstairs around 10pm and stayed with their son. Her older son was still awake. She was there for some time and came downstairs to work out what to do. She said that he must have been tied up for some time, because she screamed at him 'what are you going to do to our son, how could you do this to your own blood, are you really going to do it'. He said he was going back to China in a couple of days time and with the fighting and the vomiting, she was sure it was a while. 42The offender could not remember when she stabbed the victim. She said she was frightened of all of the blood. The victim was then breathing heavily, like snoring. The 000 call was made at 6.22am. There she admitted stabbing the victim recently.

Other evidence 43Mr Leung, the offender's ex-husband, is currently residing in Sydney raising both the offender's sons. His evidence was that they had married in 1995 and that their relationship had been normal, without major problems, until after the birth of their son and that they had divorced, as a result of his decision. They later reconciled after counselling, but separated again, at a time when the offender was being treated by Dr Wong. He initially had no idea that the offender had been receiving psychiatric treatment, but as a result of the doctor's suggestion, she decided to move to New Zealand to be with her sister. She returned after about a month, when Mr Leung noticed her mental health issues. He said that there was never any violence, but that she would get angry and there was a lot of verbal abuse directed towards him. 44In 2003, they parted again and their relationship improved and they shared custody of their son. In 2004, she began seeing the victim and in June, Mr Leung moved to Hong Kong, where he had been born. He returned to visit his son once or twice a year, over the next two years, during which the offender's second son was born. 45In 2007, the offender asked if Mr Leung could return to Australia to help care for their son in a unit which she owned. He agreed and returned to Australia in June 2008. His son then stayed with him often. In 2008, the victim left the offender, taking his son. Their son went to live with Mr Leung. The offender then told him that she was worried about her mental health and did not want her sons to see this. 46They spent time together and she seemed normal and happy, but the offender later told him that her younger son was being neglected in China; that he was in boarding school and that the victim wanted money for his education. She went to China to get him back on a number of occasions, believing he was too young to be put in boarding school and wasn't being well looked after. Mr Leung knew that after he returned, she kept his passport in safe custody so that the victim could not take him away again. 47Mr Leung said that he developed a good relationship with the offender's younger son. He was in Hong Kong when the victim came to Australia in 2011. He returned on 8 February and was at home on 9 February, when he was called to the offender's home by police. He was worried that the victim had hurt his son and found that the two boys had been taken to the police station. He took the younger son to hospital to be tested, because he had eaten some of the soup. His son told him that they had been asleep and did not know what had happened. 48Mr Leung said he was shocked by what had happened. The offender had never been violent. He knew that she was seeing mental health doctors but she had seemed normal before he went away. He said that 'I don't know what Paul has done to her to make her do this". 49He explained that he had become the guardian of the offender's younger son and regularly visited the offender with her sons. He had discovered that the offender's younger son's passport was kept in a Commonwealth Bank safety deposit box. 50In his oral evidence Mr Leung explained that from what the offender had told him, she had come to realise that her son was in quite a miserable condition in China. She wanted him back and made several trips there to get him. He was surprised by what she had done to the victim, because normally she was a gentle, kind and polite person to most of her friends. While she could be anxious and unhappy in herself, she was not violent to other people, or him and she was good to the boys. She worried about their welfare and sometimes overreacted. They were very upset without their mother and it was difficult for him to look after them by himself. He had no other family to assist him. 51There were a number of character references tendered, as well as a letter from her eldest son. They spoke variously to the offender's good character, her love and care for her children, her business success, how her actions were out of character and her remorse.

The psychiatric opinions 52On the evidence the offender has suffered from a depressive illness for many years. She first consulted Dr Wong in 1997 and saw him up to 2003. There had been an earlier suicide attempt. She was treated by Dr Law in 2008 and 2010 for management of her depressive disorder. She then had symptoms of a depressive disorder, but was not suicidal or psychotic. She was prescribed medication. On her account to Dr Westmore, she did not adhere to her treatment regime, but now has insight into her need for treatment and the necessity of adhering to treatment which is prescribed. 53In his 31 May 2011 report, Dr Westmore's opinion was that the two most obvious issues arising from the offender's history were firstly, the victim's alleged emotional manipulation of her over years, together with his dishonesty and demands for financial support. Secondly, his alleged cruelty to their child. The acute stress operating on her at the time that she killed the victim was that he would take the child away again and her fears of how children could be abused in China. 54In Dr Westmore's opinion, the offender was suffering from an acute or chronic episode of depression, either a Major Depressive disorder or a Severe Adjustment disorder, which was an abnormality of the mind. She also had some symptoms of a post traumatic stress disorder type. Her actions arose as a result of her depressed mood, which arose because of how she believed the victim would act toward her and their son and how he might act towards other women and children in the future. 55Dr Westmore assumed, based on the reliability of the offender's history, that the stabbing and cutting was a sudden impulsive act and that after returning from the bathroom and seeing all the blood, she had immediately called for assistance. In those circumstances, in his opinion the defence of substantial impairment could be raised. Her ability to know that she ought not to do the act and that the act was wrong had been compromised as a result of her depressed mood. Her actions reflected extreme levels of anger, but Dr Westmore noted the close relationship between the effects of anger and depression and took the view that the angry mood also arose in the context of the offender's depressive disorder. 56In October 2011, Dr Nielssen diagnosed a depressive illness and anxiety disorder. He noted a history of symptoms amounting to a syndrome of depression, which had commenced after the birth of her first child, although there had also been a teenage suicide attempt. He noted that the offender was still quite depressed, despite ongoing treatment and had had a history of psychiatric treatment, including in the year before the offence. 57Dr Nielssen was of the view that at the time of the offence the offender was affected by an abnormality of mind in the form of a markedly anxious and depressed state, arising from her underlying condition. This had resulted in a significant impairment in her perception of events, perceiving that her son was in immediate danger of being abducted and mistreated and her capacity to judge right from wrong was impaired, as she saw herself justified in taking action against the victim, who she believed had used the care of children as a lever to take advantage of women. Her capacity to control her actions when she experienced a mixture of rage and fear was diminished by this impairment. She was, however, fit to enter a plea and to be tried. 58Having reviewed Dr Westmore's 31 May report and Dr Nielssen's 21 October report, as well as the Crown case statement and statements made to police by various witnesses, in April 2012, Dr Allnut's opinion was that at the time he saw the offender, she did not meet the criteria for a diagnosis of a major depressive disorder, but she did manifest depressive symptoms, suggestive of a resolving depression, with symptoms of anxiety or symptoms of a resolving chronic adjustment disorder, with a depressed and anxious mood. 59Based on her account, it was Dr Allnut's opinion that she had been the victim of significant psychological abuse and manipulation by the victim for a number of years and had witnessed his physical and psychological abuse of their son. By February 2011, she perceived him as a threat to their son's wellbeing and that of women and children in general. Notwithstanding that, she continued to feel conflicted in her dealings with him, because she had an ongoing desire for their son to maintain a relationship with him. Dr Allnut observed that material he had been provided with, suggested that others had seen the victim in a different light. 60Dr Allnut noted an alleviation in depressive symptoms in mid-2010. He observed, however, that the offender still manifested some symptoms of post traumatic stress, prior to February 2011, but not to the extent that a diagnosis of traumatic stress could be made. She was still manifesting a constellation of residual depressive and anxiety symptoms, with a history of periodic episodes of depression and was thus then manifesting an abnormality of mind. They were not, however, so severe that they were impacting on her functioning. 61Her experience of the victim had led her to the view that he was a conman. Prior to the night of the offence, it was unlikely that she was experiencing an abnormality of mind of a severity that it substantially impaired her capacity to understand events, to judge right from wrong, or to control her actions. 62Dr Allnut also observed that there had been a significant period of time between the decision to drug the victim and lying in bed with her son, trying to decide what to do. He noted her scant recall of the events, her thought processes and the offence itself, but that she had been angry and that she had called for immediate assistance when she came out of her haze, after she had tried to flush the victim's penis down the toilet. This was consistent with an acute stress response, with heightened levels of anxiety, fear and anger. She was more prone to such a response because of her prior experiences with the victim. 63Dr Allnut also noted her history of prior aggression towards the victim and her emotional volatility and behaviour towards her ex-husband. He concluded that the offender was then experiencing a mixture of feelings, including fear or anxiety, as well as anger. At the time of the offence there was an aggravation of her anxiety and anger and thus an aggravation of her abnormality of mind. 64Nevertheless, Dr Allnut was of the view that the offender then likely maintained adequate capacity to understand events. Her fears for her son and beliefs about the victim were not a deviation from her normal beliefs, but they were probably exaggerated, due to her anxiety. In his opinion her capacity to judge right from wrong was compromised, but that was unlikely to have been substantial. Her account suggested that she felt justified in her behaviour. That stemmed from her desire to protect her son and to extract retribution for the behaviour she perceived the victim had engaged in, in the past. He said that if her perceptions were accepted as understandable, her sense of justification would not be regarded as consistent with a substantial impairment in her capacity to judge right from wrong, as she based her justification on an appraisal of risk and the need to protect her child. 65In his opinion, depending on the evidence at trial, there was adequate capacity to control her actions, given the period of time from the drugging to the killing, which was suggestive of an evolution of events which culminated in the killing and thus an absence of loss of self control, in the sense of a sudden reaction or response to the situation. Dr Nielssen also accepted that it was possible that the offender had acted impulsively, after she tied the victim up, in which event she might be regarded as having lost self control. 66In his opinion, it was likely that the offender embarked on the offending behaviour, because she felt trapped, anxious and angered at the victim's ongoing treatment of her and their son and saw his comments as highly threatening to their son. The offender was, however, unlikely to have met the adequate threshold for a successful defence of substantial impairment. 67In Dr Westmore's 27 July 2012 report, he noted that he had been instructed with the other psychiatrists' reports. He noted a history of irregular medication, which the offender ceased, when she was not feeling unwell. He also noted that she was feeling better, after 18 months of regularly taking antidepressants and that she had told him of her feelings of guilt for what she had done. She also recognised the need for counselling and not bottling up her problems. He observed that she had told him that her actions were very, very wrong and that she had no right to take away the victim's life. She now realised the importance of remaining under the constant advice of a medical professional and taking antidepressants, as long as needed. She accepted her responsibility for the victim's death and its consequences for his parents and her son. 68Dr Westmore observed a notable improvement in the offender, who repeatedly expressed her remorse and feelings of guilt. He observed good insight into the fact that she was unwell at the relevant time and that medication had had a significant and sustained impact on her mood, which had improved. 69He detected no psychotic symptoms, but found evidence of an underlying depressive component to her mood. There was also appropriate mood reactivity, with repeated expressions of regret and remorse. In his opinion, the risks of the offender re-offending were negligible to non-existent. The offence had occurred in very specific circumstances, with extreme, uncharacteristic and unexpected behaviour resulting. He assessed the chances of that situation arising again probably to be non-existent. His view was that her prognosis was good and that she did not represent a risk to herself or the general community at this time.

The parties' cases 70While the offender's acts were not in issue, the parties were not agreed about the nature and seriousness of her offence. In part their disagreement rested on the impact of the offender's impairment, beyond that required to make out the partial defence of substantial impairment. This disagreement reflected that the experts did not have a common view about the extent of the impairment, or its impact on the offender. 71It was the Crown's case that in assessing the seriousness of the offence, the offender's strong motivation to cause the victim's death had to be considered, as did the degree to which the offender was motivated by fear and anger, as well as the acts which the offender committed. On her accounts, she felt that she had no effective legal way of preventing him from removing her son from Australia and the only way to prevent him, was to kill him. It was relevant that she had made no attempt to pursue other avenues which she considered to deal with her situation and had acted, oblivious to the fact that she was depriving the victim's sons of their father. That she believed him to be a negative influence, did not excuse the offence which she had committed. 72It was accepted that the offender's view that the victim was a serial predator, was influenced by her underlying mental condition, but it was submitted that nevertheless, the atrocious injuries which she had inflicted on the victim's genitals, evidenced her desire to punish him for the behaviour which she perceived he had engaged in towards her and other women. 73The degree of impairment which she suffered was accepted by the Crown to be sufficient to make out the defence to murder, but it was submitted not to have been overwhelming. It had plainly left room for the expression of the offender's anger and fear, normal human emotions on which she had acted. In these circumstances, it was submitted to be impossible to be satisfied that there would be no re-offending, despite Dr Westmore's opinion. 74The Crown submitted that consideration also had to be given to the evidence which showed a sequence of events, which began with the offender drugging the victim, in order to make him amenable to her offence. She then spent some hours putting her son to bed, leaving him at about midnight. The 000 call was made at about 6am. It followed that the offender had kept the victim restrained for a period of up to six hours, during which on her account, there was fighting and arguing between them. There was no evidence as to the period of time over which the attack lasted; whether the stabbing to the neck occurred at the same time as the mutilation; or when it had occurred. The evidence showed that blood was disbursed in primarily two locations in the room and that the victim was still alive when the ambulance arrived, dying only that night. In written submissions the view was urged that the offender's conduct involved torture. 75In the result, the Crown's case was that the offence required the imposition of a penalty at the upper end of the applicable range. The offender had shown that she was willing to use extreme violence to achieve her ends. An estranged spouse was not entitled to deliberately cause the death of her de facto partner, when dissatisfied with custodial arrangements, even when in fear of the other parent. It was submitted that the circumstances were such that a measure of general deterrence had to feature in the sentence imposed, to demonstrate that such parents could not take the law into their own hands, even when suffering from a depressive illness. 76The case put for the offender was entirely to the contrary, namely that it would be accepted that the offender's diminished moral culpability was not only reflected by the operation of s 23A of the Crimes Act, but would also have a significant impact on the role that deterrence played in sentencing. It was submitted to be relevant that the three psychiatrists had received a consistent history from the offender. She had clearly become preoccupied and concerned by the possibility that the victim would take their son back to China. There was discussion about the caveat, in which the victim had made threats, which brought memories of what their son had endured in China flooding back to the offender. It was then that the offender had drugged the soup, in order to buy time to think of what to do and after coming back down after midnight, she had tied the victim up. 77It was also submitted to be relevant that there was no version of events on which there had been any cutting, until shortly prior to the offender calling the ambulance. 78The psychiatrists' opinions were submitted to be similar, except that Dr Allnut had come to the view that the offender had an adequate capacity to understand events and that while she was compromised in her capacity to judge right from wrong, that was unlikely to have been substantial; she had adequate capacity to control her actions; and the planning involved suggested the absence of a sudden loss of self control. Those views, it was submitted, were contrary to the basis upon which the offender was to be sentenced and so could not be accepted by the Court. Dr Allnut's further observation, that it was possible that the offender had reacted impulsively, after she had tied the victim up and that when this occurred she might be regarded as having lost control, was submitted to provide a foundation for the conclusion that the offender was guilty of substantial impairment manslaughter, based on an impulsive act. 79The decision to mutilate the victim was submitted to have been plainly irrational. It was after she had flushed the toilet, that she had called the ambulance straight away. It was the stabbing, it was submitted which was the impulsive act which had caused death, although it was conceded that there was a lengthy period between the spiking of the soup and the ambulance being called at about 6am in the morning. What the offender had said in the 000 call was relevant, but it was submitted not to have been an admission of torture. It was also relevant that she had then attempted to assist the victim. 80This offence, it was submitted, was far from the most serious of cases, where there had been considerable planning involved in the offending. It would also be considered that here there was no question of future dangerousness. 81The view was urged that the offender had responded to a serious, threatening situation, which had confronted her suddenly; and that she had been suffering from a depressive condition for over 15 years, its seriousness not having been previously recognised or treated comprehensively. She had never previously been violent or involved in any criminal activity. The offence had arisen in a specific situation, which would not arise again, her feelings of anger and fear the clear result of her disorder. Given the relevant aggravating and mitigating matters and the special circumstances which were present, it was further submitted that it would be concluded that the sentence might properly be structured, so as to ensure that the offender was eligible for parole in the near future. 82I am not able to accept that submission, given the nature and seriousness of this offence, notwithstanding the impact of the offender's mental impairment and the mitigating matters relied on.

The Court's sentencing task 83The offender is being sentenced for a very serious offence, the taking of a human life. Her plea of not guilty to murder, but guilty of manslaughter was accepted by the Crown on the basis of the provisions of s 23A of the Crimes Act, as reducing her offence from that of murder to that of manslaughter. By her plea the offender has accepted that she is guilty of that offence. 84The evidence establishes that at the time of the stabbing which caused the victim's death, the offender's capacity to understand events, or to judge whether her actions were right or wrong, or to control herself, were substantially impaired by an abnormality of mind, arising from an underlying longstanding depressive illness. In the circumstances it must be accepted that her impairment was so substantial, as to warrant her liability for murder being reduced to manslaughter. 85That does not mean, however, that the appropriate sentence for this offence will necessarily be a low one (see R v Low (1991) 57 A Crim R 8 at 18). The Parliament has required that an appropriate penalty must be imposed on the offender, having in mind the purposes of sentencing fixed by s 3A of the Crimes (Sentencing Procedure) Act. Those purposes are: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community" 86The sentence imposed must reflect the gravity of this offence, viewed objectively (see R v Dodd (1991) 57 A Crim R 349 at 354.) Section 21A of the Act also requires that in determining that sentence, consideration be given to specified aggravating and mitigating facts revealed by the evidence, as well as any other objective or subjective factors that affect the relative seriousness of the offence. The sentence must also ensure that there is a reasonable proportionality between the sentence imposed and the circumstances of the crime committed (see R v Scott [2005] NSWCCA 152 at [15].) 87As to general and specific deterrence, the authorities make it clear that in a case such as this, where an offender is suffering from an abnormality of mind at the time of the offence, considerations of deterrence and retribution may be less weighty than in the normal case. Much depends, however on the particular circumstances of the offence (see R v Nguyen (No2) [2009] NSWSC 1120 at [44] - [45]). 88The difficulty of sentencing an offender for an offence of this kind has been repeatedly discussed in the authorities. What was observed in R v Dawes [2004] NSWCCA 363 should be borne in mind. There it was observed at [31] and [34]: "31 Manslaughter, whatever form it takes, constitutes unlawful homicide. It is always a most serious offence as it involved the taking of another human life and it is the responsibility of the courts to protect and preserve human life and to punish those who unlawfully take it. All human life is to be protected including that of the disabled, the handicapped, the criminal, the derelict and the friendless. ... 34 When the basis of a finding of manslaughter is diminished responsibility (now substantial impairment), pursuant to s 23A of the Crimes Act what is nevertheless ordinarily involved, and what is involved in the present case, is a conclusion that the taking of human life was the consequence of a deliberate and voluntary act, performed with intent to kill or cause grievous bodily harm, or with reckless indifferent to human life. The abnormality of mind diminishes the offender's responsibility for his or her act but it does not negate such responsibility." 89These observations are important to bear in mind in this case. There is no question on the evidence that it was the offender's voluntary, deliberate acts, which not only resulted in the victim's death, but also caused him other considerable harm. What the offender has revealed to assessing psychiatrists shows that her offence is unquestionably a serious one. That must be properly reflected in the penalty imposed. 90It may also not be overlooked that the offender has not given evidence. This means that the accounts she gave the psychiatrists about the victim's threats; his conduct towards her and their son; the views which she formed of him; and what happened on 8 and 9 February have not been tested. The victim of course, cannot speak for himself. It follows that the offender's untested report of relevant matters, including her perceptions of the victim, perceptions which she does not appear to have shared with others before his death, must not unquestioningly be accepted. Also to be considered is that the histories she has given reflect an apparent ongoing desire that their son have a continuing relationship with his father, notwithstanding the poor opinion she came to have of the victim and his dealings with their son, with her and with other women and children. 91There is no issue between the parties that there must be a term of imprisonment imposed for this serious offence, by which the offender took the victim's life, as the result of her deliberate and voluntary acts, while intending to cause him at the least, grievous bodily harm. In determining the appropriate sentence, the maximum penalty of 25 years imprisonment for this offence, must be borne in mind. 92In R v Backlidge (unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Grove and Ireland JJ, 24 February 2005), Gleeson CJ observed that: "It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. (R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)" 93In assessing the objective criminality of this offence, it is not just the fact of the offender's underlying impairment, but the nature of its impact on the offender, at the time that she killed the victim, which must be considered. 94The experts were largely agreed that the offender was then motivated by a mixture of anger and fear, both of which were exacerbated by her underlying illness. The experts did not agree as to the extent of the impact of her illness on what she did. In considering the impact of her illness, the evidence of what the offender actually did must be considered. That evidence certainly does not leave open the conclusion that all that she did to the victim, even on her own accounts, was the result of a sudden impulsive reaction to the threat which she perceived he presented. 95It may be accepted that what she finally did on 9 February was the result of both fear of what the victim would do to their son and anger over his past treatment of her and others, emotions exaggerated by the effect of her underlying illness. The causative impact of that illness on her violent, fatal attack must have the result that the offence for which she is being sentenced is reduced to one of manslaughter, rather than murder. The sentence for that offence must also properly reflect the impact of her illness, but it does not excuse what she has done. 96It must also be considered that on her accounts, on the evidence of Mr Leung and on the various character evidence relied on, that there is no question that at the time of her offence, the offender had been functioning at a high level, without any apparent impact from her underlying illness on her daily life; her ability to care for her children and to conduct successful social relationships with other people; or to successfully conduct her business. She was also actively pursuing legal steps available to her to deal with her ongoing financial dispute with the victim. 97Before her offence, the nature and extent of the offender's illness was not such that it was having any significant impact on her life or functioning. On the histories she has given, it was in 2008 that she was concerned about her mental condition, so that she took steps to have her sons cared for by their fathers. She appears to have had no such concern in the period leading up to the offence. She was then apparently functioning quite normally. 98The evidence reveals that long before 9 February 2011, the offender perceived that she and their son had been abused by the victim, who was a con man who preyed on women, using their children in order to extort money from them. These were opinions which she formed at a time when she was not adversely affected by her underlying disorder. 99That she was frightened by what the victim said to her about their son, on 8 February, while they were arguing about their financial affairs, before she prepared the soup which she laced, may well be accepted. She believed that the victim presented a serious threat to her son's safety, and that he was again seeking to use him in order to manipulate her for his further financial gain and to evade the legal steps she was pursuing to deal with their ongoing disagreement over financial matters. It may also be accepted that she was already very angry with him about his treatment of her and other women and that her underlying illness exaggerated these emotions. 100In assessing the seriousness of her offence, consideration must not only be given to what the offender finally did on 9 February, but also to what she did on 8 February. On that day, her underlying condition was not having any apparent negative impact upon her normal functioning until threatened by the victim. Even then, on her later accounts, her response to the threat which she perceived the victim first presented on the evening of 8 February, was approached in a measured and controlled way, despite her anger and fear. 101It was then that she decided that she had to act. While preparing dinner she came up with an idea, upon which she then acted, by lacing the soup, in order to give her time to think about what to do. While she later said that she did not consider killing the victim, it cannot be overlooked that she not only drugged him, but several hours later, tied him up, thereby ensuring that she had control over him. 102Also to be considered is that she did not act further, while her sons were awake. She only tied the victim up after they were both asleep at around midnight. She then took further time to consider her various options. She did not stab the victim until the early hours of the morning of 9 February, after having considered her situation over many hours. The stabbing occurred after a further argument, after the victim woke to find that he was tied up. The offender's account was that he was then vomiting, struggling to break free and asking to be freed, as well as making further threats. It was apparently not long before she made the 000 call that she stabbed the victim so as to cause his death. She also grossly mutilated him. 103At what point the offender stabbed the victim and at what point she mutilated his genitals, is not known. She told the 000 operator after 6 am that the stabbing was recent. The autopsy report showed that he had suffered defensive wounds. It follows that the victim was not unconscious while the offender inflicted all of the injuries which he suffered. 104Given the nature of the mutilation, it seems unlikely that this can have occurred before any stabbing or blood loss, notwithstanding that the victim was tied up. Had it occurred beforehand, it is difficult to see that the children would not have been more greatly disturbed by noise than they were. Whatever be the sequence, it is relevant that there is evidence not only that the offender was conscious of the seriousness of what she had done, but that she took steps to ensure that it could not be undone, before she called for assistance. 105In her various accounts, the offender said that she was frightened by all the blood. Despite this, before she called for assistance, she took steps to ensure that her mutilation had the consequences she intended, of stopping the victim in engaging in further behaviour of the kind she believed he had engaged in towards her, that is preying on wealthy women and using their children to extort money from them. That was why she tried to flush away part of his penis, before she called for help. This was clearly not impulsive behaviour, a matter which may not be overlooked, in assessing the seriousness of this offence. 106The nature of the gross mutilation of the victim's genitals must also be considered. For the offender, the Crown's description of her conduct as involving torture was resisted. It is not necessary to use that description, but on the offender's own accounts, the victim was sufficiently awake to fight off her attack, before lapsing into unconsciousness. It follows that the victim's consciousness of his awful situation, may not be overlooked in assessing the nature and seriousness of this offence. 107What the offender finally did on 9 February was no doubt affected by her underlying illness. What cannot be accepted, however, is that the offender suddenly stabbed the victim in an angry, frightened and impulsive response to the threat which she perceived that he had suddenly presented. To the contrary, on her own account, the offender recognised on the evening of 8 February that there was a threat; she decided to deal with it by taking steps designed to bring him under her control; she considered over many hours what she would do; with the result that it was not until the early morning of 9 February, not long before the 000 call, that she repeatedly stabbed and mutilated him. The victim was still alive when the ambulance responded. 108What the offender said during the 000 call, shed significant light not only on what the offender had done, but her awareness of what she had done. She said variously that the victim was dying; that she had killed a crook; that he was conscious and breathing; that she had killed him with a knife; that they had been fighting; that she had done it recently; that he was bleeding very badly everywhere; that he was bleeding from the neck; that he was dying and drowsy; later that he was unconscious; that she was not sure how many times she had stabbed him; and later again, that she had stabbed him in the penis, as well as the neck. She then took steps directed to stopping the bleeding, as the operator asked her to do. 109It follows that while this killing was clearly not premeditated, nor was it an impulsive response to threats which the victim made before dinner on 8 February. What the offender did involved both a measure of consideration and planning, before the wounds which killed the victim were inflicted early the following morning. The mutilation was also deliberate, as were the steps taken to ensure that what she had thereby done could not be reversed. 110That the offender did finally called for assistance, is a factor which must be taken into account in her favour, as must the aid which she rendered the victim, as the 000 operator asked her to do. But so, too, must all of her other acts, for which her responsibility is diminished by her depressive illness, but not thereby excused. 111It follows that the objective seriousness of this offence is such that imposition of a penalty which would result in the offender shortly being released on parole, would be to impose a sentence significantly less than what is warranted by the offence, notwithstanding the impact upon the sentence which the matters relied on for the offender must have. 112It must be accepted that the offender's actions are considerably ameliorated by the impact of her disorder on her ability to distinguish right from wrong and to control her actions at the time of the stabbing, with the result that considerations of deterrence, both specific and general, must be given less weight in this case than would otherwise be the case. Nevertheless, given the evidence of the nature of the impact which her illness had on the offender, over the course of 8 and 9 February and the consideration and planning involved in the offence, which included the deliberate, gross mutilation of the victim and steps taken to ensure that the assistance called for could not undo the damage which had been done, it may not be concluded that deterrence and retribution have no role at all to play in this sentencing exercise. 113This conduct must be denounced by the sentence imposed.

Aggravating matters 114Apart from matters inherent in the offence itself, it being one of considerable violence and involving use of a weapon, there are also aggravating features here necessary to be taken into account, by virtue of s 21A of the Crimes (Sentencing Procedure) Act. Not only did the offence involve the use of an intoxicating substance, it is unarguable that it involved considerable gratuitous cruelty. The offender also knew that she was depriving three children of their father. While the offender's two sons were nearby, I accept that the offence does not appear to have been committed in their presence.

Mitigating matters 115The mitigating matters to be taken into account under s 21A were strong. The offender was clearly a person of good character, up until the time of this offence. She had no criminal record and was a caring and devoted mother. She plainly misses her children and they miss her. That, however, unfortunately is a situation in which many offenders find themselves. Of itself it is not a mitigating factor. 116 Dr Westmore has the view that the offender is unlikely to re-offend and has good prospects of rehabilitation. The Crown submitted that there could be no certainty about this. Plainly this depends on the offender adhering to the treatment regime which she now accepts has helped her to recover to the point where she has come to realise the nature of her offending and to repeatedly express her remorse. She has not adhered to such treatment in the past. 117Also to be considered is that this was not her only violent attack on the victim. On her account, she had hit him with a frying pan while he was asleep when she was in China, necessitating an ambulance being called. She has no record of violence towards others, but there are accounts of other occasions of acting upon anger towards others. 118Also to be considered however, is the significant character evidence. It seems to me that while there can be no certainty about this on all of the evidence, there are good reasons for having considerable confidence that on release, the offender will not pose any further threat to the community. The sentence which I propose to impose will take account of this. 119The offender's remorse is evidenced by her plea and by what she has told the psychiatrists who have assessed her. It is generally preferable for offenders themselves to give evidence, if their remorse is to be accepted. In this case there is evidence of what the offender has told the assessing psychiatrists as to her remorse, which reflects a growing acceptance of her responsibility for what she has done, as she has responded to treatment. The early offer of a plea also reflects remorse. The offender's remorse was not in this case challenged by the Crown, even though she did not herself give evidence. In the circumstances, I accept that it has been established. 120It is within my discretion to grant the offender a discount for the utilitarian value for her plea of guilty, in accordance with the Court of Criminal Appeal's judgment in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. The purpose of such a utilitarian discount was there explained by the Chief Justice as reflecting the benefits which flow from a guilty plea for the efficiency and effectiveness of the criminal justice system as a whole, as well as to witnesses and victims, who, as the result of such a plea, are spared having to give evidence and the personal rumination of traumatic events, which is inevitably involved in that process. These benefits must be identified by a trial judge when sentencing, in order to provide an incentive to offenders to enter such a plea, so that such benefits will, in fact, be derived (see R v Thomson; R v Houlton at [115] to [123]). 121Given the early time at which the offender offered her plea, I am satisfied that she must have a 25% discount for the utilitarian value of her plea of guilty to the offence of manslaughter. 122I am also of the view that special circumstances should be found under s 44 of the Crimes (Sentencing Procedure) Act. The offender is responding to treatment for her illness, she has no criminal history and this is her first time in custody. In my assessment, given all of the offender's circumstances, as envisaged by cl 228(1) of the Crimes (Administration of Sentences) Regulation 2008, she should have a considerable time of post release supervision on parole, for a period of 3 years.

The sentence 123The parties referred to various decided cases, where offenders have been sentenced for offences of this kind. They accepted that the authorities and available sentencing statistics showed that there have been a range of sentences imposed, but that they are of relatively limited assistance in fixing this sentence. Those authorities revealed, at the upper end, starting sentences of some 12 years, before discount. The Crown submitted that the nature of this offence brought it within the most serious of these types of offences. It was submitted for the offender that the sentence imposed should fall at the lowest end of the range, providing for release on parole shortly after judgment, the offender now having served some 18 months' imprisonment. 124Given the diverse nature of the offending, the conditions of mind which affected the offenders and the subjective circumstances which the authorities deal with, these various decisions are not of significant assistance in determining penalty in this case. The sentence I have determined must be imposed, to reflect all of the various considerations which must be weighed in the balance, does not rest at the top of the range for which the Crown contended. I was also well satisfied, however, that the approach for which the offender contended was not available, if the sentence was properly to reflect the seriousness of her offence, as well as the other matters which arose for consideration. 125The offender has been in custody since her arrest on 9 February 2011. The sentence should start from that day. But for the discount of 25%, having considered all of the matters I have discussed, I would have sentenced the offender to a term of imprisonment of 9 years. With discount the total term will be 6 years, 9 months. The earliest date on which the offender will be eligible for release is 8 November 2014.

126Jian Chen you are convicted of the manslaughter of Jin Xiang Peng. 127You are sentenced to imprisonment with a non-parole period of 3 years and 9 months commencing 9 February 2011 and expiring on 8 November 2014, with a balance of term of 3 years expiring on 8 November 2017. The effect of that sentence is that the earliest day you will be eligible for release is 8 November 2014.

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