R v Huang

The ERISP

1. The police made efforts to locate an interpreter for the offender. They were successful. An electronically recorded interview with a suspected person ("ERISP") commenced at 2:04pm. At the trial issue was taken with some of the interpretations of the offender's answers. The defence put forward some alternative interpretations of the answers which the Crown accepted were reasonable. Both the summing up to the jury and this judgment proceed on the basis of the defence's interpretation of any contested answer.
2. The offender was advised of his right to silence and provided with the opportunity to have a lawyer present. He stated he wished to continue. He told the interviewing detectives that he stabbed the victim "once". Later in the interview the offender was asked how many times he struck the victim. The offender stated "I have no idea".
3. When asked why he stabbed the victim the offender stated that it was because the victim had threatened to report him to the Department of Immigration and also he had been "saying that he want[ed] to kill me, he want[ed] to kill me". The offender described an incident that occurred the previous Friday at the building site. He said there had been an altercation between the two and it had led to threats from the victim to report him to the Department of Immigration and also to kill him.
4. The offender told the police that on 9 September 2013 he brought a knife to work. He said he approached the victim and asked him whether the feud between them had ended. He recalled the victim saying "[n]o, and you are certainly, certainly dead". The offender told the police that after the victim stated this he turned to open his bag. The offender said he suspected that the victim was picking up a knife from inside his bag, so he stabbed the victim first. At one point in the interview the offender stated that when he thought of the victim's threat to kill, "my head seem[ed] to explode completely".

The offender's evidence

1. The offender gave evidence at the trial. He expanded upon what was said in the ERISP. In most but not all respects his version was consistent with the ERISP. The offender stated that both he and the victim had worked together for approximately four weeks prior to 9 September 2013. They had both been living at Mr Zhou's house.
2. The offender said that some weeks prior to the victim's death he and the victim had a disagreement after the victim had fallen over while they were unloading a cement mixing machine. He said the victim accused him of having deliberately caused the fall.
3. The offender also stated that on the Friday prior to the victim's death he was standing on some scaffolding and while he was passing a cement bucket to the victim, the victim hurt his hand. He recalled that the victim became "very angry" and again accused the offender of deliberately hurting him. This led to a confrontation. At one point the victim picked up a spade and swung it in his direction. Later the victim threw two bricks at him. The offender said that as he and the victim were leaving the work site, he walked past the victim who picked up a spade. He heard a gust of wind behind him and felt sand on his neck. The offender concluded that the victim had swung the spade close to the back of his neck. The offender said the victim said to him "Don't run away. I'm going to kill you with the spade", and later said "If you're going home, you are going to die anyway. If you go home, you will die".
4. The offender told the jury that that night he went back to Mr Zhou's house where the victim also resided. He said he locked his door. He located a knife he had owned since he worked at an abattoir. He kept it close. Mr Zhou returned to the home later and told them that they both had to leave. The offender said that the victim left the home on the Sunday, but the offender remained. The offender said that on that day he overheard a heated telephone discussion between the victim and Mr Zhou in which he understood the victim threatened the offender's immigration status. However, the offender told the jury that he was not "worried or scared" about returning to China although he considered forced deportation shameful. More significantly the offender stated that later that Sunday he heard a friend of the victim say to Mr Zhou's wife that "[s]ooner or later there will be death or life lost involved".
5. The offender told the jury that he understood that the victim carried a knife to "work all the time". He said the night before the victim's death he asked Mr Zhou to sack the victim or, failing that, both of them, but Mr Zhou refused saying they were short of workers. Instead the offender gave two weeks' notice.
6. The offender travelled to work with Mr Zhou on 9 September 2013. The victim travelled in a different car. The offender packed his knife before he left. He said he saw the victim at a work site and noticed that his "facial expression was very scary". He said he approached the victim and said "between us do we have an end, [an] end of these fights or not?". The offender then described what happened as follows: "When I was saying this sentence in the meantime he suddenly turned his back like this and then bending down. Immediately I was thinking for sure he's getting the knife. Try to kill me. When he was turning in the meantime he was saying, 'You are dead for sure'. When he was saying these things, 'You are dead for sure', in the meantime he was bending down. I didn't [think] twice. I took my knife out. I stabbed him [in] the back. Suddenly he turned around. My word was, my original word was my brain was exploding. I couldn't describe how I feel at that point."

Issues at the trial and findings

1. Any findings this Court makes on sentence must be consistent with the jury's verdict and can only be adverse to an offender if "arrived at beyond reasonable doubt" (Cheung v R [2001] HCA 67; 209 CLR 1 at [14] per Gleeson CJ, Gummow and Hayne JJ).
2. As noted, when he was arraigned the offender pleaded not guilty to murder, but guilty to manslaughter. However, as the Crown did not accept that plea in full satisfaction of the indictment, the trial proceeded in respect of all issues including whether he was guilty of the offence of manslaughter (R v Hazeltine [1967] 2 QB 857). That said, both in his evidence and through his Counsel, the offender agreed that it was his deliberate act that caused the death of the victim. Further, while the offender stated that he genuinely believed that at least his initial stabbing of the victim was necessary to defend himself, he agreed his response was excessive in that it was not reasonable in the circumstances as he perceived them.
3. However in his evidence the offender denied that he had any intention to kill or injure the victim. While, in light of the jury's verdict, I will sentence the offender on a basis that is generally consistent with his evidence, I am satisfied beyond reasonable doubt that this aspect of his evidence should be rejected. In circumstances where the offender inflicted multiple stab wounds to the victim in what was clearly a savage attack, I am satisfied beyond reasonable doubt that he intended to kill the victim.
4. In order to prove that the offender was guilty of murder and not manslaughter, the Crown had to establish beyond reasonable doubt that the offender did not personally believe his conduct was necessary to defend himself, and that conduct was not a reasonable response in the circumstances as the offender perceived them. As stated, this second element was conceded by the offender, although the matter was still left in the hands of the jury. Further, the jury was also instructed that the Crown had to disprove beyond reasonable doubt that the offender was acting under provocation. The issue of provocation arose from so much of the offender's evidence that referred to his brain "exploding" and his assertion that he could not recall inflicting any stab wounds on the victim beyond the first one.
5. It follows that the jury's verdict of manslaughter is potentially explicable on three bases. The first is manslaughter by an unlawful and dangerous act. It can be immediately put aside given the finding I have made in [21] above.
6. The second is excessive self defence. The jury's verdict is consistent with their having accepted the offender's assertion that he believed that stabbing the victim was necessary to defend himself but having found it was excessive in the circumstances. The offender is to be sentenced on that basis.
7. The third basis for manslaughter was provocation. The relevant acts of the victim that were put to the jury as the possible basis for provocation were the conduct of the victim that indicated he wished harm upon the offender, including the statement on the morning of the attack that the offender was "dead for sure". As noted in his evidence the offender stated that, after he inflicted the first stab wound, his "brain exploded". In those circumstances I am not satisfied beyond reasonable doubt that the Crown disproved that the offender experienced a temporary loss of control after he inflicted the first stab wound on the victim. However I am satisfied beyond reasonable doubt that the conduct of the victim was not such that it could have induced or caused an ordinary person in the position of the offender to have so lost his self-control as to have formed the intention to kill the victim, or to inflict grievous bodily harm upon him. The victim's conduct may have posed a threat but that is very different to possibly inducing that form of response in a reasonable person.
8. Accordingly, the offender is to be sentenced on the basis that he committed manslaughter because his conduct in causing the death of the victim was engaged in by him in circumstances in which he believed it was necessary to defend himself, but was not a reasonable response to the circumstances as he perceived them (i.e. excessive self defence). In so acting the offender formed an intention to kill the victim although his actions in stabbing the victim, other than inflicting the first stab wound, were carried out while he experienced a temporary loss of self control.
9. Notwithstanding his belief that his actions were necessary to defend himself, the offender's response was a gross over-reaction to the threat that he perceived. There were numerous options available to the offender to defray that threat, other than stabbing the victim. In his evidence he repeatedly stated that he did not fear leaving Australia and returning to China. It was always open to him to simply leave his workplace and make arrangements to return to China even if that involved compulsory deportation. He had the option of speaking to his supervisor, Mr Zhou, to voice his concerns prior to going to work and making arrangements to work somewhere else. On the morning of the confrontation, he approached the victim and not vice versa. Further, even though he believed that the victim may have been reaching for a knife in his bag, the option for retreat was clearly available. He had taken that option the previous Friday.
10. The end result is that the offender is to be sentenced for deliberately inflicting multiple stab wounds upon the victim in circumstances where he intended to inflict death. He did so in the belief that his conduct in causing the death of the victim was necessary to defend himself and while he experienced a temporary loss of self control after inflicting the first stab wound. However, his conduct was a grossly disproportionate response to the circumstances as he perceived them.

Victim impact

1. The victim was aged 54 at the time of his death. As stated, it is not known when he entered Australia but it is known that, as at the date of his death, he had overstayed his visa. After his death his wife and son travelled to Australia and his son identified his body. At the time of sentencing the Court was advised that attempts had been made to contact the family to provide victim impact statements, but no response had been received. That said, the circumstances of the victim's death must have been very distressing for his family. Having to travel from China to Australia to hear the details of a loved one's violent death was no doubt a terrible experience. The Court acknowledges the suffering of the victim's family.

The offender's personal circumstances

1. In his evidence at the trial the offender outlined his personal history in some detail. He was born in Henan Province in China in February 1972. He was raised in a large family in what he described as a "rural" and "poor" part of China. His father and grandfather held positions of importance within the local community and the offender stated that there were significant expectations placed upon him in his education. As a result of an eye condition however, he did not fulfil them.
2. In 1992 the offender married his wife. In 1994 she gave birth to their daughter. By this time he was working in a relatively menial position with local government. To support his family he left for Beijing where he eventually opened his own tea shop in 2001. He sold his business in 2008 and returned to his position in local government. He decided to travel to Australia with a view to working here and sending money back to his family. He came to Australia initially on a tourist visa and then later applied for refugee status. The potential inconsistency between his applying for refugee status and what he stated was his purpose in travelling to this country was not explored in the evidence. After he arrived in Australia the offender worked in a number of manual positions, including at an abattoir and as a bricklayer on residential building sites.
3. The offender has not been convicted of any offences in Australia and there is no record of him having any convictions in China. Given that the crime of which he was accused was a serious crime of violence, at the trial the Crown did not contend that the offender's good character was affected by the fact that he overstayed his visa once he arrived, and worked in apparent violation of its conditions.

Plea of guilty

1. Subsection 22(1) of the Sentencing Act requires the Court to consider the fact that the offender has pleaded guilty, when the offender pleaded or provided an indication that they would plead guilty and the circumstances in which the offender indicated an intention to plead guilty. It enables the Court to consider those factors in deciding whether to impose a lesser sentence than is otherwise warranted.
2. An offer by the offender to plead guilty to manslaughter was communicated to the prosecution on 9 May 2014. It was accepted that this was prior to the completion of the prosecution brief and only shortly after his first conference with Counsel (although he had been legally represented for some months prior). The offer was rejected on 26 May 2014 and he was committed for trial in July 2014.
3. Allowing for a proper opportunity to review the Crown brief and obtaining considered legal advice, in my view this represents the proffer of a plea at the earliest opportunity that was reasonably available. It warrants a discount to reflect the utilitarian value of the plea of 25% (R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383).

Aggravating and mitigating factors

1. Subsection 21A(2) of the Sentencing Act lists a series of aggravating factors the Court is to take into account in determining the appropriate sentence. These factors cannot be considered as aggravating the offence if they are elements of the offence. Subsection 21A(3) lists a series of mitigating factors.
2. The only aggravating factor identified was the offender's use of a weapon, namely a knife (s 21A(2)(c)). The offender's use of a knife was not fortuitous. He had retained the knife from when he had worked at an abattoir. He carried it to work anticipating he might need to use it.
3. In relation to mitigating factors, Counsel for the offender submitted that the offence was not planned or organised (s 21A(3)(b)). This is true to a point although, as just noted, the offender carried a knife to work expecting he might need to use it.
4. Counsel for the offender submitted that the deceased was provoked by the victim (s 21A(3)(c)). The concept of provocation in s 21A(3)(c) of the Sentencing Act appears to be wider than that referred to in former s 23 of the Crimes Act. In this case I have already accepted that, to a limited extent, the offender was provoked.
5. Counsel also referred to the absence of any prior convictions on the part of the offender (s 21A(3)(e)), that the offender was a person of good character (s 21A(3)(f)), that the offender is unlikely to reoffend (s 21A(3)(g)), that the offender has good prospects of rehabilitation (s 21A(3)(h)) and that the offender has shown remorse for the offence (s 21A(3)(i)). These matters can be conveniently addressed together.
6. I have already referred to the offender not having any prior convictions and his good character in the context of a crime of violence. Nevertheless, the circumstances of the offence give reason to hesitate before concluding that his prospects of not reoffending are strong. Even allowing for the threat that he perceived, he was quick to resort to extreme violence when there were numerous non-violent responses open to him. The Court cannot exclude the possibility that he will respond violently in other situations of stress or conflict. In the end result, the offender is to be sentenced on the basis that, although it is unlikely, there remains a reasonable possibility that he may commit another serious act of violence in the future.
7. Finally, at the conclusion of his ERISP, the offender was advised that the victim had passed away. He replied "Sorry, I'm sorry". Having regard to that and his actions in immediately attending at the police station I accept that the offender is genuinely remorseful over the death of the victim.
8. Subsection 21A(3)(l) provides that the degree of pre-trial disclosure by the defence is a mitigating factor in sentencing. Section 22A elaborates upon this by enabling a Court to impose a lesser penalty than would otherwise be the case having regard to the degree to which the administration of justice has been facilitated by an offender's defence including by disclosures made prior to or during the trial. As stated, it was never disputed that it was the deliberate act of the offender that caused the death of the victim or that his response was excessive. However these concessions were a necessary aspect of the plea to which he adhered from an early stage and I do not consider that any significant further weight should be attached to this matter, given the discount for his plea that has already been quantified.
9. However of greater significance is s 21A(3)(m) of the Sentencing Act which provides that any assistance provided by the offender to "law enforcement authorities" is a mitigating factor. This is expanded upon by s 23 which provides: "23 Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters: (a) … (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) (Repealed) (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must: (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed for both reasons - state the amount by which the penalty has been reduced for each reason. (5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence."
10. Section 23 applies to assistance provided by an offender to the offence for which they are being sentenced (the "offence concerned") and other offences. Only the former is relevant although a number of the factors in s 23(2) are more relevant to the latter or at least to the circumstance of an offender informing on others. To consider the application of this provision it is necessary to return to the circumstances facing the offender immediately after the stabbing of the victim. As stated, he absconded from the scene with his co-workers. They were also foreign nationals who had apparently overstayed their visas. The police could not later locate them. At that point, given their likely visa status, the offender was entitled to be confident that they would not approach the police. The only remaining witness who could identify him as the killer was Mr Zhou. The offender did not know what he would say to the police. However, even if Mr Zhou did identify him, the offender had successfully evaded immigration authorities for a number of years and he could have reasonably anticipated that he may have been able to do the same in respect of the police. In short the offender had a genuine opportunity to avoid detection and apprehension yet he chose to immediately approach the police and confess.
11. These considerations warrant a further discount beyond that proffered by reason of the early plea of guilty to manslaughter. However any discount must not result in a penalty that is unreasonably disproportionate to the nature and circumstances of the offence. In those circumstances I will aggregate the discount for this factor with the discount afforded by reason of the offender's plea of guilty (R v Frank Waqa (No 2) [2005] NSWCCA 33; 156 A Crim R 454 at [12]). By reason of his assistance the offender will receive a further discount of 10%, so that a total discount of 35% will be afforded on account of the offender's plea and assistance to authorities.
12. Finally in the context of mitigating factors it was submitted on behalf of the offender that his very limited command of English and isolation from his family will make the circumstances of his imprisonment more difficult. I accept those contentions (see R v Huang [2000] NSWCCA 238; 113 A Crim R 386 at [18] to [19] per Adams J).

Special circumstances

1. It was accepted by the Crown and on behalf of the offender that the offender's liability to deportation was irrelevant to the sentencing process (R v Pham [2005] NSWCCA 94 at [13] to [14]). One consequence of this is that where an offender who is liable to be deported would otherwise qualify for a finding of special circumstances, because for example it is recognised that he or she would benefit from a longer than usual period of supervision, then such a finding should be made (R v Mirzaee [2004] NSWCCA 315 at [21] per Kirby J with whom Sperling J and Newman AJ agreed).
2. Accordingly it was submitted on behalf of the offender that a finding of special circumstances was warranted as it was the offender's first time in custody, and he would experience difficulties as a result of his cultural, linguistic and familial isolation. I accept that those matters are capable of amounting to special circumstances but that, in itself, does not warrant a variation in the usual ratio between the balance of term and the non-parole period. Instead the circumstances must be "sufficiently special to justify a variation" (R v Fidow [2004] NSWCCA 172 at [22] per Spigelman CJ and R v Simpson (2001) 53 NSWLR 704 at [68]). In this case they are not. The sentence that will be imposed will allow a sufficiently long period for the offender to be supervised.

Sentence

1. In his comprehensive submissions, Counsel for the offender took the Court through a range of decisions and sentencing statistics in respect of manslaughter with particular emphasis on offenders who were culpable by reason of their excessive self defence when killing their victims. I have reviewed and considered that material. The principles governing reliance on it were discussed in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [47] to [49]) ("Hili"). In summary the necessity for consistency in sentencing is not demonstrated by and nor does it require numerical consistency (Hili at [47] to [49]). In pursuit of consistency I am obliged to have regard to sentences that have been imposed in other cases but such comparisons have their limit (Hili at [53]). Such sentences can "stand as a yardstick against which to examine a proposed sentence" (Hili at [54] citing Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [304]). Critically it is important to identify the "unifying principles which those disparate sentences may reveal" (Wong v R [2001] HCA 64; 207 CLR 584 at [59]; Hili at [55]).
2. The limits on the utility of relying on either statistics or sentences imposed in other cases are of particular significance in sentencing for manslaughter. Of all crimes manslaughter is said to "thro[w] up the greatest variety of circumstances affecting culpability" (R v Blacklidge, Court of Criminal Appeal, Gleeson CJ, 12 December 1995, unreported). Within the categories of manslaughter, such as unlawful and dangerous act or excessive self defence, the range of circumstances is "notoriously wide" and an offence in one category is not necessarily better or worse than one in another (Berrier v R [2009] NSWCCA 40 at [25]).
3. Nevertheless the starting point is that manslaughter involves the unlawful taking of a human life and there must be an assessment of the gravity of the objective circumstances of the offence (Blacklidge id). In this case the stabbing of the victim was grossly disproportionate to the threat that he posed in that there were numerous alternatives easily available to the offender. The attack was savage. This was a serious example of the crime of manslaughter. The necessity for general deterrence, retribution and denunciation as well as personal deterrence apply with full force to the sentencing of the offender. Resorting to violence by the use of weapons such as knives when non-violent responses are open is conduct that warrants significant punishment.
4. Little is known about Song Feng An. At best as can be ascertained he did not come half way across to the world to fight but to work and support his family. Bleeding to death on a suburban building site so far from his home and family was a sad and terrifying end to his life. While he was in this country Song Feng An was entitled to the protection of the law. The law does not value his life any less than any other. The offender must be punished for unlawfully taking it.
5. In this case, prior to taking into account any discount, I consider the appropriate total sentence is twelve years imprisonment. After allowing for the aggregate discount that I have referred to and some rounding, the appropriate sanction is imprisonment for a total period of seven years and ten months constituted by a non-parole period of five years and eleven months, and a balance of term of one year and eleven months. As the offender was taken into custody on 9 September 2013, it follows that his custodial sentence should commence from that date.
6. Mr Huang, the offence of manslaughter is a "serious and violent offence" as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW). I am obliged by s 25C of that Act to advise you of the existence of that legislation and of its application to the offence you have committed.
7. Mr Huang, pursuant to s 23(4)(a) of the Sentencing Act I indicate to you and record that a lesser penalty is being imposed because of the assistance you provided to law enforcement authorities. Pursuant to s 23(4)(b) of the Sentencing Act, the Court states that the penalty that would have otherwise been imposed but for that assistance was a total sentence of nine years, comprising a non-parole period of six years and nine months and a balance of term of two years and three months imprisonment.
8. Chun Shui Huang, for the manslaughter of Song Feng An you have already been convicted. You are sentenced to a term of imprisonment. Pursuant to s 44(1) and s 44(2) of the Sentencing Act I set a non-parole period of five years and eleven months commencing on 9 September 2013 and an additional term of one year and eleven months commencing 9 August 2019 and ending on 8 July 2021.
9. The sentence will be taken to have commenced on 9 September 2013. The offender will be eligible for release on parole on 8 August 2019 and the sentence will expire on 8 July 2021.

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: 10 April 2015