R v Hong

Mr Hong's descent into mental illness and the circumstances of the killing

1. The facts of this case are not disputed and are set out in a statement of agreed facts, tendered as part of Ex A.
2. Mr Hong ran a small convenience store in Westmead for 15 years. In April 2019, he closed his business and stopped working. He was suffering from insomnia and his family noticed symptoms of anxiety and depression. In August, Mr Hong saw his family doctor, Dr Fang, and was referred to a psychiatrist, Dr Law. Dr Law prescribed various medications to help Mr Hong sleep. In late October, Dr Fang became concerned about Mr Hong's mental wellbeing and advised Lily to take her father to an Emergency Department of a hospital if his condition deteriorated. The offender tendered the patient health summary from Dr Fang's clinic. The notes reveal that Dr Fang had attempted to arrange for Mr Hong to see a different psychiatrist because Dr Law had retired. He was unable to find a Chinese-speaking psychiatrist who was prepared to bulk bill.
3. On 4 November, Lily took Mr Hong to Auburn Hospital because his insomnia and anxiety had worsened. They were referred to Cumberland Hospital where Mr Hong was assessed and diagnosed with a major melancholic depressive disorder. He was prescribed an increased dosage of Mirtazapine and Tamazepam, and had a privately scheduled appointment with a psychiatrist booked for 12 November. He was discharged that day. A bundle of notes from Cumberland Hospital was also tendered. The notes show that Mr Hong was assessed as being at low risk of self-harm and violence and a low risk to children.
4. On 11 November, Mr and Mrs Hong were at Lily's house in Berala minding their three grandchildren. Mrs Langfang Guo occupies the granny flat at the rear of those premises. When Lily left for work, she asked her mother about the offender's well-being and Mrs Hong said he had not slept well, in spite of taking his prescribed sleeping pills. At 9:40am, Mrs Guo heard Mrs Hong yell for help. Mrs Guo observed Mr and Mrs Hong through the fly screen door. She saw Mrs Hong holding Mr Hong: "The offender's arms were by his side in a relaxed posture but his body including his head and arms were shaking a small amount. The offender had a blank look on his face. The deceased had her right arm around the offender's shoulder and her left arm wrapped around his left upper arm. It appeared to Mrs Guo that the deceased was trying to control the offender."
5. Mrs Hong made a number of frantic calls to Lily and Allan To, with the assistance of Mrs Guo, asking them to come home quickly as Mr Hong was "not well". Meanwhile, Mr Hong was walking around the living room softly repeating "nevermind, nevermind".
6. Mrs Guo returned to the granny flat as her son was crying. At some point shortly thereafter, Mr Hong used a kitchen knife to stab his wife multiple times to her torso and neck. Mrs Guo was only home for a couple of minutes when she heard Mrs Hong scream. She returned to the house and saw Mr Hong straddling Mrs Hong and applying pressure to wounds on her chest. There was a knife covered in blood beside him. Mr Hong called '000' and said he had stabbed his wife. When asked "how" he hurt his wife, Mr Hong said: "Because I, ah, my, my, I can't sleeping …. You know, and, ah, he, I can't sleeping, and he, he tell my daughter, Call a, call a, call take me to the hospital… Cumberland hospital."
7. When police arrived at the scene Mr Hong pointed to Mrs Hong, who was lying on the loungeroom floor surrounded by a pool of blood and again said "I killed my wife". When asked why, he said, "can't sleep you know and last night I tell my daughter take me to the hospital".
8. Mrs Hong was pronounced dead at the scene at 10:32am. A post-mortem examination disclosed that the cause of death was "multiple sharp force injuries". Mrs Hong had 45 such injuries. There were at least six penetrating stab wounds.
9. Mr Hong was conveyed to the police station and participated in a recorded interview where he made similar admissions about killing his wife due to his "chaotic mind" and inability to sleep. He said he "heard voices in his head" and "felt like he lost control of his body". He said he had no disagreements with his wife and that they had lived together for a few decades. He said he "was mentally nervous, I did something wrong, I regret".
10. It is worth noting that there is other evidence, in the psychiatric reports, which casts some doubt on the family's account of an entirely happy and conflict free marriage. For instance, there is evidence that, at around midnight on 10 November, [3] Mr Hong awoke frustrated with his inability to sleep. A statement by a neighbour (Sibel Kucuk), referred to by Professor Greenberg, referred to overhearing a male and female arguing loudly around half an hour later. Ms Kucuk said the woman was shouting louder than the male and sounded angry. It is not certain that this was Mr and Mrs Hong although it seems likely that it was. The statement was referred to in the expert report but was not tendered on sentence and its contents were not included in the agreed statement of facts. Mr Hong denied this argument when asked about it by Professor Greenberg. [4]
11. The Prosecutor referred to an assessment of Mr Hong conducted by Dr Nguy on 9 January 2020 which noted the offender said: "I fight with my wife and lack of sleep. Two or three hours. I became confused and my head explode" and "I remember quarrelling and she died." [5] The Prosecutor referred to the "link between losing the business, insomnia, frustration, [being] unable to deal with it et cetera" and the context of unresolved anger in which the crime was committed.
12. While the evidence supports the proposition that Mr Hong became frustrated with his inability to sleep and that there was tension in the marriage arising from his deteriorating psychiatric condition and its impact on his life and business, there is no evidence capable of establishing to any relevant legal standard that Mr Hong had previously been violent in the marriage.
13. By his plea of guilty, the offender admitted that he had an intention to kill or to inflict grievous bodily harm. Based on the nature, extent and location of the stab wounds, I am satisfied beyond reasonable doubt that he had an intention to kill his wife, at least at the time the wounds were inflicted. I do not think he had that intention before the stabbing and I think he regretted it immediately afterwards and when he appreciated the magnitude of what he had done.

The psychiatric evidence

1. Mr Hong was assessed by two forensic psychiatrists, Professor David Greenberg and Dr Stephen Allnutt, with the assistance of a Mandarin interpreter. Dr Allnut interviewed Mr Hong on 23 January 2020 and 16 August 2021 at the Metropolitan Remand and Reception Centre (MRRC). Professor Greenberg interviewed Mr Hong at the MRRC on 28 August 2020.
2. Both psychiatrists were of the opinion that Mr Hong was substantially impaired in his capacity to judge whether his actions were right or wrong and his capacity to control himself. However, both experts were of the view that he likely had a capacity to understand the events at the relevant time.
3. Dr Allnut concluded his 20 September 2021 report as follows: "In my opinion, having regard to the information provided to date, I would conclude that he has a history of having suffered from a major depressive episode with melancholic features, and has possibly experienced more significant depressive symptoms causing a psychosis associated with his depression, and thus a psychotic depression, particularly given his report of auditory hallucinations. He has continued to take antidepressants and antipsychotic medications since his incarceration and endorses an improvement in his symptoms. He appears to have gone into some remission. The psychotic-type symptoms, mainly in the context of auditory phenomena, have been in remission for two months and the persecutory type phenomena have been in remission for about six months. At this stage I remain of the view that his mental illness contributed to the offence. I note that other psychiatrists have raised the likelihood that he was unable to reason about the offence with a moderate degree of sense and composure but nonetheless was found guilty of manslaughter. In my view, as noted in my prior report, his depressive symptoms caused him to distort events in his environment, perceive things in a more negative way and triggered an inappropriate response, resulting in an undermining of his capacity to control his actions and thus contributing to the offending. At this stage his depressive symptoms have gone into remission." [6]
4. Professor Greenberg interviewed Mr Hong on 28 August 2020 at the MRRC. He provided an opinion that Mr Hong met the diagnostic criteria for a "Major Depressive Disorder with melancholic features and likely psychotic features" at the time of the offence.

Assessment of objective criminality and moral culpability

1. The offence was objectively very serious. It involved the offender forming an intention to kill, and the infliction of more than 40 wounds to an innocent victim who was caring for him. The offence involved the use of a weapon and was committed in the proximity of young children. The injuries bespeak a savage and ferocious assault. Against that, there appears to have been no planning at all and the facts suggest the offence occurred spontaneously over a short space of time.
2. The offender's moral culpability was diminished by his severe mental illness, although this was the reason his charge was reduced from murder to manslaughter. [7] All offenders standing to be sentenced for manslaughter as a result of the proper application of s 23A can point to their mental impairment as a matter reducing their moral culpability and, perhaps, their objective criminality, where there is a causal connection. [8] The prosecution submitted that any further diminution in moral culpability could only be the result of impairment "beyond that required to make out the partial defence". [9] As I understood it, Queen's Counsel for the offender contested the correctness of this approach. He submitted: "I understand that that may well be what is being put, but we would submit that is not right, that is, that what your Honour is dealing with is a crime of manslaughter. It is not to the point as to how the crime of manslaughter comes about in order to determine the range of moral culpability within the crime of manslaughter, except insofar that your Honour is dealing with a matter that does involve a perception by the community, as expressed by the legislature, that the crime is less morally culpable than the crime of murder. Once you are into manslaughter, then questions of the range of moral culpability or objective seriousness, or however one wants to put it, within that crime is what is important for the sentence to be passed for that crime, having regard to the fact that there is a head sentence maximum of 25 years. So, you don't, as it were, take the view you have already got a benefit by being charged only with manslaughter so that, in effect, your moral culpability is subject, as it were, to some sort of handicap." [10]
3. In R v Reid (No 2) [11] Johnson J said: "It is appropriate for the Court to recognise that the Offender's mental condition has already played a significant part in his favour, given the acceptance by the Crown of his pleas of guilty to manslaughter by way of substantial impairment in satisfaction of the indictment which charged two counts of murder. It remains necessary for the Court to take into account the Offender's mental condition on sentence, in circumstances where that condition was linked directly to the commission of the offences. However, the Court must be careful not to double count, in the Offender's favour, his mental condition in a way which does not properly reflect the fact that the mental condition was also critical to the reduction of his offences from murder to manslaughter: R v Tarrant [2018] NSWSC 774 at [163]-[171]; R v Cahill (No. 4) [2018] NSWSC 1896 at [203]." [12]
4. The cases referred to at the end of [129] were earlier sentencing decisions of Johnson J. Queen's Counsel made the following further submissions: "As far as the Johnson J case is a concern, we submit that he's not saying you've already got a benefit and so we start with the proposition that you're not to get that benefit again if we give you reduced moral culpability. We simply say that the proper analysis requires one to start with the proposition you are convicted of manslaughter, should there be a conviction, and looking at the range of sentence in manslaughter having regard to the maximum sentence guide post, defining the objective seriousness of the conduct in accordance with what Johnson J said in Tepania, and looking to the moral culpability of your being unable to control yourself where the cause of your - that you seek to control is something over which you had no control. You didn't enter into a lifestyle or take up an angry position or something of that order, but that doesn't mean that your moral culpability is to be discounted because you're not being convicted of murder. I don't submit that that's what Johnson J is in fact saying. All that it could boil down to is this, that when looking at the impaired capacity which gives rise to the form of the charge, one should not take that into account of its own in relation to defining the ambit of moral culpability, otherwise it will be totally at odds with this idea that you look to see what is the residual responsibility for the death, and that is the major factor governing objective seriousness of the offence. It's the abnormality of mind which substantially impairs the various capacities but it has to do so in a way that is so substantial as to reduce the responsibility from murder to manslaughter. Once it's down with manslaughter, you don't disregard the root cause of it all, but you do take into account that the moral culpability is reduced by the fact that it's - you're not being found guilty of the most heinous crime, you're being found guilty of a less heinous crime. That's all. Otherwise it's almost, we would submit, impossible to reconcile with existing concepts of sentencing." [13]
5. With great respect, some of these submissions were obvious and self-evident while others were opaque, bordering on impenetrable. If the submission was meant to convey that a sentencing Judge should ignore the fact that, but for the defence under s 23A, the evidence establishes murder (and in particular, the specific intention required to prove that crime), I cannot accept it. On the other hand, it is obvious (and I accept) that the Court should not ignore the "root cause of it all". The simple fact is that comparison with all offences of manslaughter is a slippery undertaking because the crime can take so many forms. How can one make a useful comparison between the facts of a case like this one (where the offender intends to kill) and a case of involuntary manslaughter, such as manslaughter by unlawful and dangerous act or gross negligence (where no intention to harm needs to be proved). Similarly, I find the exercise of placing the "moral culpability" on some putative sliding scale with all cases of manslaughter an almost barren undertaking. Equally, when the Prosecutor submits in writing "the offence falls within the mid-range for this type of offence for objective seriousness", I am left to wonder: what type of offence? That is, is it a reference to all manslaughter offences or is it a reference to manslaughter cases that arise under s 23A.
6. It is not incumbent on a sentencing Judge, where no standard non-parole applies, to come to a conclusion as to whether the offence falls within the "mid-range of objective seriousness". [14] As Basten JA said in Cargnello v Director of Public Prosecutions (Cth): "This kind of characterisation, which was no doubt encouraged by the introduction into State law of s 54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) with respect to offences the subject of standard non-parole periods, is often unhelpful. That is because it is rarely explained what is meant by the "middle of the range". Clearly a range is not a point on a scale, but it could cover anything from 25% to 75% of a most serious case, or it could be far more narrowly defined. Unless it is narrowly defined, it is unlikely to provide useful guidance for the sentencing judge, let alone for those reading the judgment." [15]
7. I have expressed at [22] above my conclusion as to the objective seriousness of the offence and provided reasons for that conclusion.
8. As to Mr Hong's moral culpability, I repeat that I reject the suggestion that it is forbidden to take into account the fact that the offender has already been afforded leniency by the downgrading of the charge. On the other hand, the nature and extent of Mr Hong's impairment remains a relevant consideration and I have concluded that his moral culpability is relatively low for an offence of manslaughter, all of which involve the unlawful taking of human life.

The relevance of Mr Hong's mental illness to other aspects of sentencing

1. The offender's history of severe mental illness raises competing considerations for the purposes of sentencing. The relationship between his psychiatric condition and the commission of the offence is largely accepted and this reduces his moral responsibility in the way I have explained.
2. I also accept that his mental illness renders him an inappropriate vehicle for sending out messages of general deterrence. In the circumstances of this case, where the offender killed his own wife while in the grip of a major psychiatric illness, and where he called the ambulance and admitted the offence immediately and repeatedly, I also accept that personal or specific deterrence is not a factor that should be given great weight.
3. His mental illness, other personal attributes and the procedures arising from the COVID-19 pandemic satisfies me that his time in custody has been, and will continue to be, more onerous than for most inmates.
4. Those matters suggest the mental health issue would lead to a relatively lenient sentence. However, balanced against that is the need to protect the community from future random and unpredictable acts of violence. [16] This was an entirely unpredictable and inexplicable homicide and the Court has a responsibility to ensure, as best it can, that the community is protected from any repeat of this behaviour. The sentence cannot be increased so that it is disproportionate to the objective seriousness of the offence, and the protection of the community can best be satisfied by structuring the sentence to ensure a lengthy period on parole which will ensure Mr Hong's continued access to psychiatric care.

Aggravating factors

1. The Prosecutor did not submit that there were any aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The offender submitted that there were no such aggravating circumstances, a submission that was not contested. However, in assessing the objective seriousness of the offence, I have taken into account the following:

• The offence involved actual violence, noting that many (but not all) offences of manslaughter do.
• The offence involved the use of a weapon.
• The offence was committed in the presence of children.
• The offence was committed in another person's home.

Plea of guilty

1. Mr Hong pleaded guilty in the Local Court in the course of what is described (inelegantly and inaptly) as the Early Appropriate Guilty Plea process. The parties agree that he is entitled to a 25% discount for his plea in accordance with s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Age, character and prospects of rehabilitation

1. Mr Hong was born in September 1957. He was 62 years old at the time of the offence and is now aged 64 years. He has no criminal history of any kind.
2. The evidence of his personal and family history, contained in the psychiatric reports and his children's police statements, establishes that he is a person of good character.
3. Mr Hong was born in the municipality of Nan'an in China and is the eldest of four children. He had a healthy upbringing in a happy family and denies any physical, emotional or sexual abuse in his childhood. Mr Hong completed 13 years of schooling, with no reported learning difficulties or bullying, and was a primary school mathematics teacher in China. In 1988, he arrived in Australia on a student visa before working for a meat company as a general hand for 20 years. Following this, he opened his own sole trader convenience store in Westmead and the business closed in mid-2019.
4. I am satisfied that if he is treated properly for his psychiatric illness, and complies with his doctors' advice, his prospects of rehabilitation are good and that he is unlikely to offend again.
5. I have taken these matters into account as mitigating features pursuant to s 21A(3)(e), (f), (g) and (h) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
6. I have also taken into account, as mitigating factors, the fact that the offence was not part of a planned or organised criminal activity, and that Mr Hong was the one who initially contacted the police and has since continued to provide assistance to law enforcement authorities.

Remorse

1. The question of whether Mr Hong is remorseful is not a simple one. While he has expressed regret for his wife's death many times, he has also regarded the killing as an unintentional "accident" caused partly, if not entirely, by his insomnia. He reported that he accidentally harmed or killed his wife at various times during the interview with police, to Justice Health clinicians and reviewing psychiatrists, as well as in a letter to the Court. I think that many of these statements that appear to deny responsibility result from language issues and misunderstanding of the word "accident".
2. I am satisfied that Mr Hong is sorry that he killed his wife and can properly be described as remorseful and contrite. This is relevant to his prospects of rehabilitation and more generally, but I cannot be satisfied on balance that he falls within the mitigating factor defined restrictively in s 21A(3)(i).

Sentence

1. It is obvious that no sentence other than one of full-time imprisonment is appropriate. Mr Hong has been in custody since 11 November 2019 and the sentence should commence on that date.
2. Pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), I find there are special circumstances justifying a substantial reduction in the portion of the sentence that must be spent in custody. This includes the offender's age, vulnerability, prior good character and the fact that this is his first time in gaol. Most significantly is the desirability that the sentence is structured in such a way to ensure Mr Hong has as much time as possible on parole and for a substantial portion of that to be supervised. This will assist in his re-integration into the community and ensure that he receives appropriate psychiatric treatment to maximise his prospects of rehabilitation and to protect the community from any future acts of violence caused by his mental health problems.
3. I am conscious of the fact that the adjustment I will make to the non-parole period is substantial. I have done this deliberately and with the protection of the community at the forefront of my mind.
4. Taking into account all relevant considerations, I would commence with a sentence of eight years. With a 25% reduction for the utilitarian value of the plea of guilty, the total sentence will be one of six years. Applying the finding of special circumstances, and to allow a substantial period of supervision to ensure Mr Hong remains compliant with the advice of psychiatrists and doctors, I will fix a non-parole period of two years and six months. So, in summary, there will be a total sentence of 6 years with a non-parole period of 2 ½ years.
5. Accordingly, I make the following orders: 1. Mu Rong Hong, for the offence of manslaughter you are convicted and sentenced to a non-parole period of 2 years and 6 months commencing on 11 November 2019 and expiring on 10 May 2022. 2. There will be a balance term of 3 years and 6 months expiring on 10 November 2025. 3. You will be eligible for release to parole at the expiration of the non-parole period, and I recommend you be released on that date. 4. I am required to advise you of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and that the Act applies to this offence. I direct your legal advisers to advise you of the possible orders that may be made under the Act upon the expiration of the sentence I have imposed.

Endnotes

1. The Charge Certificate under s 66(1) Criminal Procedure Ac1986 dated 4 January 2021 indicated under the heading "How the Offence will Proceed": "Withdraw".
2. Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A.
3. As to which see, State of New South Wales v Nikua (Final) [2021] NSWSC 1240 at [7] (Dhanji J). In this instance midnight refers to the "point without dimension" dividing 10 November from 11 November 2019.
4. Report of Professor Greenberg, 12 October 2020, p 4.
5. Dr Nguy notes are summarised in the Report of Professor Greenberg, 12 October 2020, p 17-18.
6. Report, Stephen Allnut, 20 September 2021 at page 4.
7. See R v Keceski (Court of Criminal Appeal (NSW), Mahoney JA, 10 August 1993, unrep).
8. Tepania v R [2018] NSWCCA 247; (2018) 275 A Crim R 233.
9. Written submissions, Prosecutor, 28 September 2021 at par 23.
10. Tcpt, 30 September 2021, p 7.
11. R v Reid (No 2) [2021] NSWSC 475.
12. R v Reid (No 2) [2021] NSWSC 475 at [128]-[129].
13. Tcpt, 30 September 2021, p 45.
14. See for example, PK v R [2012] NSWCCA 263 at [24]-[27]; FL v R [2020] NSWCCA 114 at [58]-[60].
15. Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162; (2012) 266 FLR 464 at [88].
16. Cf Veen v R (No.2) [1988] HCA 14; (1988) 164 CLR 465 at [472]-[473].

Amendments 18 November 2021 - 18/11/2021 - Abbas Jacobs Lawyers to Abbas & Co. Lawyers 18 November 2021 - 18/11/2021 - Greg James SC to Greg James QC 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: 18 November 2021