R v Li

R v Li - [2012] NSWSC 477 - NSWSC 2012 case summary — Zoe

[10]

ATM usage 25During the course of the investigation police established that the deceased held three bank accounts (a cheque account, a fund management account and an investment account) and a Visa credit card with the ANZ Bank. The deceased also held two American Express credit cards. The offender robbed the deceased of these cards on 20 September 2009. 26Between 20 September 2009 and 26 September 2009 the offender used the deceased's ANZ Bank card on the following 15 occasions: No. Date Time Account / Activity / Location

20.09.09 16:08 ANZ Bank access card used to obtain a balance of the deceased cheque account at a Commonwealth Bank AIM at 553 Elizabeth Street, Strawberry Hills.

        16:08  ANZ Bank access card used to withdraw $500 from the deceased's cheque account at a Commonwealth Bank ATM at 553 Elizabeth Street, Strawberry Hills. [count 3]

        16:09  ANZ Bank access card used to withdraw $500 from, the deceased's cheque account at a Commonwealth Bank ATM at 553 Elizabeth Street, Strawberry Hills. [count 4]

        16:10  ANZ Bank access card used to attempt to withdraw $500 from the deceased's cheque account at a Commonwealth Bank ATM at 553 Elizabeth Street, Strawberry Hills but was unsuccessful.

        16:10  ANZ Bank access card used to obtain an account balance of the deceased's fund management account at a Commonwealth Bank ATM at 553 Elizabeth Street, Strawberry Hills.

21.09.09 12:53 ANZ Bank access card used to withdraw $1000 from the deceased's cheque account at an ANZ Bank ATM at Town Hall Square, Sydney. [count 5]

        12:54  ANZ Bank access card used to obtain a balance of the deceased's Cheque account at an ANZ Bank ATM at Town Hall Square, Sydney

        12:54  ANZ Bank access card used to attempt to withdraw $200 at an ANZ Bank ATM at Town Hall Square, Sydney

        12:55  ANZ Bank access card used to obtain a balance for the deceased's fund management account at an ANZ ATM at Town Hall Square, Sydney.

       12:56  ANZ Bank access card was used to attempt to withdraw S1000 from the deceased's account at ANZ ATM Town Hall Square, Sydney.

22.09.09 00:00 ANZ Bank access card was used to withdraw $1000 from the deceased's cheque account at a Westpac ATM on Elizabeth Street, Sydney. [count 6]
23.09.09 09:01 ANZ Bank access card used to withdraw $1000 from the deceased's fund management account at a Commonwealth Bank ATM at 553 Elizabeth Street, Strawberry Hills. [count 7]
24.09.09 12:59 ANZ Bank access card used to withdraw $1000 from the deceased's fund management account at a Commonwealth Bank ATM at 553 Elizabeth Street, Strawberry Hills. [count 8]
25.09.09 11:51 ANZ Bank access card used to withdraw $1000 from the deceased's fund management account at an ANZ Bank ATM at Strathfield. [count 9]
26.09.09 09:55 ANZ Bank access card used to withdraw $1000 from the deceased's fund management account at an ANZ Bank ATM at Hurstville. [count 10]

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Saturday 26 September: the arrest, search of the offender's premises and police interview 29On 26 September 2009 police were informed that at 9.55 am that day the deceased's ANZ Bank card was used to withdraw $1,000 from the ANZ ATM in Cross Street, Hurstville. CCTV footage later obtained by police showed that this was the offender. Police went to the Hurstville area with images taken from the CCTV footage of the 21 and 25 September 2009. Shortly after 2.00 pm the offender was seen walking in a nearby street with his girlfriend. He was arrested, searched, taken into custody and interviewed by the police. 30Police searched the offender's unit on 26 September 2009. During the search police found the clothing that the offender was seen wearing in the CCTV footage. Police also found $5,500 in cash (all in $50 notes) and a mobile phone that police were later able to establish was used to call the deceased on 20 September 2009 at 11.40 am, 11.44 am and 1.39 pm. The first two calls were made from the Hurstville CBD while the third call was made from Strawberry Hills. The subscriber of this phone was listed as a "John Jacky" of Blacktown. Whilst searching the kitchen in the unit police also found a roll of clear packing tape on top of the fridge. 31During the police interview the offender stated that he had previously worked at a massage parlour at Granville where he performed 'Chinese' massage. He denied ever meeting a customer from the massage parlour outside of work or attending any customer's residence outside of Granville. He denied having any Caucasian friends or friends of about 50 years of age. The offender denied any knowledge of the deceased or his residential address. 32When asked what his movements were on Sunday 20 September 2009 he stated he was at home with his girlfriend. He stated he accompanied her to Hurstville railway station between 10.00 and 11.00 am as she had to go to work and on the way home he bought some bread and then stayed in his room using the Internet and fell asleep. He said his other flatmate was home and he spoke to her both in the morning and the afternoon. He stated he got up from his sleep about 4.00 - 5.00 pm in the afternoon. 33After denying he knew a person by the name of Ian Craigie the offender was shown a photograph of the deceased. The offender identified this person as a male he knew as 'John' who he met whilst working at a massage parlour in Granville. He stated he last saw 'John' a couple of months ago when they met at a coffee shop near Central. He identified 'John' as a regular customer who he met when he was working at the massage parlour last year. 34The offender stated that the coffee shop was close to Harold Park. He said that he was picked up by the deceased near Central railway station in front of the University of Technology and driven there. The offender stated that 'John' had offered to give him English lessons for $50 per hour. He denied the deceased ever gave him his address and insisted the deceased had only picked him up once, but admitted to calling the deceased to practise his English on the phone. 35The offender denied that the deceased called him 'Terry'. In relation to the piece of paper with the name 'Terry' and the two mobile phone numbers, the offender confirmed that one was a number he used to use. 36In relation to the ATM withdrawal on 25 September 2009 at Strathfield, the offender was shown a photograph taken from CCTV footage at Redfern railway station. The offender identified himself in the photograph as wearing a red cap, black shirt and dark jeans and carrying a bag. 37The offender was captured on CCTV footage boarding a train heading towards Strathfield. On arrival at Strathfield the offender got off the train wearing different clothing: a dark jumper, a black cap and dark sunglasses. The offender was still carrying the same bag. The offender was shown the footage of himself at the ATM at Strathfield at about 11.55 am but denied it was him and insisted he went to Burwood that day. 38The offender was asked about the $5,500 in cash found during the search of his unit. The offender stated that his aunt had given him $2,000 and the balance was left over from work and money he had saved. 39The offender denied being picked up by the deceased on Sunday 20 September 2009. He denied being in a sexual relationship with him or ever having sex with him or ever having been to his unit.

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Further evidence adduced by the Crown on sentence 46At the request of the offender, the Crown also tendered statements from Peter Bollard, Gary Lysaght and Walter Cook, each of whom was a friend of the deceased. 47Their evidence established that the deceased taught Classics at Saint Ignatius College, Riverview, where he had worked part-time for the previous five or six years. Prior to this, the deceased had been employed as a senior legal officer for the Director of Public Prosecutions. His parents had died some time previously and his only immediate family was his sister who was, and remains, institutionalised in a Psychiatric Ward at a Sydney hospital. 48This evidence also proved that the deceased was, at least among his inner circle of friends, open about hiring Asian male prostitutes of a particular age for sex. 49Mr Lysaght described the deceased as a wealthy man who had inherited a substantial amount of money and property. Mr Cook said that the deceased was careful with his money and did not waste money on material goods, although he was not afraid of displaying the fact that he carried a substantial amount of cash. 50The Crown also relied on the evidence of AQ who gave oral evidence and was cross-examined. AQ had met the deceased in the same way as the offender had: at a male brothel in Granville. AQ worked at the brothel for a couple of months. At the time of the sentence hearing AQ was about 33 years old. According to Mr Cook, when AQ was younger, the deceased would pay AQ for sex, first at the brothel and then, after AQ had stopped working there, at the deceased's unit. 51After some time, the relationship between the deceased and AQ ceased to be sexual and developed into what AQ described as a "father and son" relationship. AQ would often go to the deceased's unit on Saturday night and have dinner with him. He would tidy up the deceased's flat, and in particular the kitchen and bathroom areas, and also help the deceased with anything that had to be done on the Internet as the deceased was not particularly comfortable with technology. AQ set up Internet banking for the deceased and helped him use it. Mr Cook believed that the deceased also paid AQ for these services. 52AQ gave evidence that he did not see any packing tape in the deceased's flat at any time and in particular he did not see any tape there when he was there on 19 September 2009, the evening before the deceased was bound and gagged by the offender. He was cross-examined on this matter to the effect that the deceased's flat was generally messy and there might have been tape there which he did not notice when he was tidying and cleaning it. AQ agreed that he could not be sure that there was no packing tape there. AQ said that he focussed on the kitchen and bathroom because the deceased did not want him to tidy up things, principally books on the tables in the rest of the unit in case he could not find things that had been rearranged. 53The Crown also tendered a certificate pursuant to s 35A of the Crimes (Sentencing Procedure) Act 1999 to the effect that the statement of agreed facts was settled in accordance with the applicable Prosecutor's Guidelines. There was no consultation with the deceased's family since his only immediate family member, his sister, has a psychiatric condition which is such that it would be detrimental to her mental health for her to be spoken to about these proceedings.

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The offender's evidence 54The offender gave oral evidence with the assistance of an interpreter at the sentence hearing and was extensively cross-examined. 55The offender came to Australia to study hospitality management at Carrick College, a private TAFE college. He was also working at a Chinese restaurant in Auburn. He gave evidence that his skin was allergic to garlic and shallots which caused him to stop working at the restaurant and look for another job. 56He found a position in a male brothel in Granville for which he was paid $80 per hour. In March 2008, he met the deceased, who came to the brothel every fortnight for sex. The offender became the deceased's preferred sexual partner at the brothel. The offender told the deceased his name was "Terry" and the deceased, according to the offender, told him that his name was "John". There were four or five other males who worked at the brothel while the offender worked there. 57The offender gave evidence that at some time in 2008, he decided to leave the brothel because he had a girlfriend and wanted to "have a normal life". He told the deceased of his intention and they exchanged phone numbers. The deceased rang the offender a fortnight later and they arranged to have coffee. While they were having coffee at a café in Glebe, the deceased proposed to the offender that he come to his unit for sex, but the offender refused. The deceased offered to teach English to the offender, who agreed to come to the unit for that purpose. 58According to the offender, in December 2008, the deceased invited him to his unit for an English lesson. At the unit, the deceased offered him orange juice which made him drowsy and then unconsciousness. When he awoke he discovered that the deceased was taking photos of his naked body. According to the offender, the deceased threatened to send the photographs to magazines and newspapers and to report him to Immigration if he refused to have sex with him. The deceased then raped the offender. 59The offender agreed in cross-examination that at no time prior to 20 September 2009 when he was at the deceased's unit did he attempt to delete the three photographs from the deceased's mobile phone. The offender said that he feared that the deceased had downloaded the photographs to his computer, although he admitted that the deceased had never told him that he had done so. 60According to the offender, from that time on, he visited the deceased every fortnight and would have sex with him. He would catch the train to Central and the deceased would pick him up and drive him back to the unit where he would park in a designated car space outside his unit. The offender gave evidence that he had no interest in sex and the deceased "forced" him to take Viagra. The offender said that at no time did the deceased offer to pay him for sex at his unit. 61The offender admitted in cross-examination that, notwithstanding his evidence that he had stopped working at the brothel in November 2008, he had returned there in 2009 for about a fortnight. The offender gave no evidence as to how he supported himself in the period when he was no longer working at either the brothel or the restaurant. 62According to the offender, on Sunday 20 September 2009 he told the deceased that he was no longer prepared to come to the deceased's unit because he was now living with his girlfriend. The deceased then suggested that he come and live with him, and offered money, accommodation and a car. The deceased then showed him his bankcards and told him the PIN, which the offender thought was fake. The offender did not note it down. 63On that occasion the deceased made no reference to the photographs he had taken of the offender and made no threat to disclose the photographs either to the press or to the authorities. According to the offender he told the deceased that all he wanted was for the photographs of his naked body to be destroyed. The deceased then suggested that they have sex and talk about the future later. 64According to the offender, there was then a tussle between them as a result of which the deceased, according to the offender, picked up a roll of tape which happened to be on a nearby table. The offender said he believed that the deceased wanted to tie him up with the tape. In order to rebuff him, the offender pushed the deceased and they both fell to the ground. At first the offender thought that the deceased had passed out. The offender then grabbed the tape and used the tape to bind the deceased's hands. The offender said he picked up a knife which happened to be nearby. The deceased then swore at the offender which made him frightened so he bound the deceased's mouth as well. According to the offender, the deceased was still able to breathe and speak notwithstanding the tape. 65According to the offender he simply wanted to protect himself and did not intend to steal from the deceased. 66The offender then reiterated that all he wanted was the photographs. The deceased threatened to call the police to report an assault. There was then another tussle, which the offender described in his evidence in the following terms: "I kept struggling on the ground and one of my hands touched a rope which was on the floor so I then used the rope to strangle his neck. He kept struggling as well and then I felt that I didn't have the strength to hold the rope any more so I then used my hand to punch his head and pushed him away from my body, and by then I was still very scared and frightened so I picked up the roll of tape from the ground and tie his hands up again, and then I picked up the small knife which was on the floor and then quickly ran out. By that time he was still talking to me something continuously but I cannot recall what he said. Then when I was trying to get out I found out that the door was locked from the inside so I then returned to look for his keys... I found the keys in his bumbag. I noticed the mobile phone next to him and then I thought of my photos, and then I put the mobile phone and also the roll of tape both inside the bumbag and then I took the bag away with me. When I walked out I found that I was very tired all over my body and so I just sat on the metal - on the grass in front of his unit, under the unit, under stairs. Then I took out his mobile phone and deleted my photos. I later found out that his wallet was also in the bag. I had a lot of grievances for what had happened for that period because I didn't get anything for what had happened and I just recalled that he did tell me the password to his bankcard so I just took the bankcard. I also noticed the car keys; the car key was also in the bag. I then took the car key and the bankcard with me away and left all other things on the grass. Then I drove his car home." 67When asked in cross-examination why he stole the deceased's car, the offender said: "...the reason why I drove his car was because at the time I felt very weak. I didn't have any strength so I just drove his car home but it was on my way home I saw the ATM machine on the roadside and it was just impromptu, like one thinking suddenly slipped into my mind that I wanted to take some money out of the card." 68The offender volunteered in cross-examination that he was waiting for the deceased to telephone him because he "was concerned about how he was doing". When asked whether he called Triple-0, he said that his English was very poor. When it was put to him that all he needed to say had he called Triple-0 was the deceased's address he said: "I didn't think that much at the time and I thought if Ian Craigie was okay he could call the ambulance himself." 69The offender accepted that he knew the deceased's address and that, in any event, it was recorded on the deceased's licence, which the offender had taken with the bankcards. 70In re-examination he said that he was not aware of the Triple-0 system and had never used it. 71The offender maintained in evidence that he was concerned about the deceased as the days passed since the binding and gagging. He said: "I also wanted to learn how he was doing but I didn't know how to get the information and plus on that week I remember I was very busy. I was attending classes every day from Monday to Friday." 72When it was put to the offender that he was not too busy to withdraw the maximum allowable amount from the deceased's bank accounts, the offender said: "I admit that I was a little bit greedy at the time about money so that is why I feel very regretful for what I have done." 73The offender denied that he accepted that what he did that day led to the deceased's death. The following further exchange is illuminating: "Q. And do you accept he couldn't escape or get help? A. INTERPRETER: No, I don't accept that. Because I believe it will be very simple for him to... release his hand and his feet and call for help." 74However when the offender was asked by his counsel whether he felt responsible for the death, he said that he did and wanted to apologise to the deceased's friends and his family, especially his sister, whom the deceased had told him lived in a mental hospital. 75He said that he was taking medication in prison and expected that once his term had been served, he would be deported to China where he would like to do another course, find a job and look after his parents. He said: "I want to have a normal life in China, stay away troubles."

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The offender's credibility 80The offender's version is difficult to accept either as a matter of objective probability, internal consistency or by reference to other evidence. For the reasons which follow I do not accept the offender's evidence, except where it constitutes a statement against interest, is corroborated or is in accordance with the statement of agreed facts. 81When first apprehended, the offender lied to the police about various matters including his relationship with the deceased and his visits to the deceased's unit. I accept that there may be reasons why someone does not at first tell the truth to the police which do not amount to a consciousness of guilt and which, properly analysed, do not adversely affect the person's credibility. However, I find that the offender lied to police because at the time he genuinely believed he could get away with his crime and may well have thought that his identity could not be established. 82In his evidence at the sentence hearing the offender took every opportunity to portray himself as the victim and a hostage to fortune rather than a willing actor and perpetrator. He sought to justify his working in the brothel by deposing to an allergy to garlic and shallots at the restaurant where he had been employed. He deposed that he went to the deceased's unit to learn English and was drugged by the deceased and found himself naked on the bed. 83To accept the offender's account of events, I would have to be satisfied that he continued to meet and have sex with the deceased without remuneration because he had been blackmailed. The offender said that he initiated phone contact with the deceased because he was scared that his girlfriend would find out that he was having sex with the deceased. He said that he only took the deceased's car because he was so worn out from the struggle that he did not feel able to catch public transport home. I do not accept any of these explanations. 84The offender would have me believe that several matters were entirely fortuitous and instantaneous, including: (1)That his hand just happened to touch the rope on the floor of the unit during the tussle; (2)That the unit was locked from the inside which meant that he had to take the deceased's keys to get out of the unit; (3)That he happened to be passing an ATM on his way home when the thought occurred to him to use the deceased's bank cards and that he remembered the PIN that the deceased had voluntarily divulged to him even though at the time of its disclosure the offender had assumed it to be fake. 85I do not accept that any of these matters was fortuitous. In my view the offender planned, before his arrival at the deceased's unit, to disable the deceased, steal his cards and his car and use the cards to make withdrawals from his bank accounts. 86Although the offender had been prepared to work in a brothel, and the deceased paid him for sex there, the offender would have me believe that he was not prepared to accept money for sex at the deceased's unit and that the deceased was not prepared to pay him for sex there. I do not accept this evidence. The allegation that the deceased was prepared to blackmail the offender to live with him and provide sexual services to him is inconsistent with the deceased's way of life as described in the evidence from the deceased's friends. I infer that the deceased regarded sex as a commodity that could be bought or sold in the course of a harmonious and consensual commercial exchange. I find that the deceased's financial means were more than adequate to pay prostitutes to satisfy his sexual demands and that he was prepared to spend his money in that way. 87I do not accept that the deceased at any time attempted to blackmail the offender. The deceased knew only the mobile phone number of the offender and possibly the suburb in which he lived when he lived in Strathfield. I accept that the deceased knew that the offender was studying, but I do not accept that he knew at which institution he was enrolled. He did not know the offender's name. The account of the mobile phone number that the offender used was not in the offender's name. He knew him only by the name "Terry". 88In my view, it beggars belief that the deceased, if he were truly in a position to blackmail the offender, would nonetheless willingly give him the PIN of his ATM card. I do not accept the offender's reason that he still remembered the PIN when he happened to be driving past an ATM on his way home, particularly in circumstances where on the offender's version, he did not believe at the time it was divulged, that it was truly the deceased's PIN. 89The methodical way in which the offender bound and gagged the deceased is also, in my view, inconsistent with the offender's being disturbed, agitated or fearful. Rather it suggests a degree of premeditation, planning and sangfroid. It is also testament to the relatively greater strength of the offender, who was, at the time of the offence, over forty years younger than the deceased. 90I consider that the speed with which the offender accessed the deceased's bank accounts and extracted the maximum daily limit to be inconsistent either with his being agitated or relieved that the immediate threat to his immigration status had been removed. Rather it bespeaks a calculated implementation of a pre-conceived plan. 91The version of events which the offender gave in court at the sentence hearing was in parts at odds with the version he gave to Dr Nielssen, a psychiatrist who assessed him on 16 September 2011 at the request of his solicitors, for the purposes of this sentence hearing. At that time, the offender had been in custody for almost two years. Dr Nielssen saw the offender on a videolink rather than in person. 92The offender tendered a report of Dr Westmore following a consultation which had taken place on 9 June 2010, at which an interpreter had been present. There are various further matters where the history given by the offender to Dr Westmore accorded with his evidence before me, and was at odds with that given to Dr Nielssen. 93The Crown submitted that the disparities between the histories the offender gave to Dr Nielssen and the evidence he gave before me reflected adversely on the offender's credit. The offender's counsel submitted that the contents of Dr Westmore's report were sufficient to rebut any allegation of recent invention. 94The disparities relied upon are not, in themselves, sufficient to persuade me that I ought not accept the offender's evidence. Nor are the consistencies between his version to Dr Westmore and his evidence sufficient to persuade me to accept him. The reasons I do not accept the offender's evidence are set out above and do not depend on a comparison between the two reports and the offender's evidence.

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The factual findings for sentencing purposes 95I accept the Crown's submission that the offender bound and gagged the deceased for financial gain and that his conduct in so doing was planned and calculated. 96I find that the deceased and the offender met fortnightly from November 2008 until 20 September 2009 for the purpose of having sex at the deceased's unit for which the deceased paid the offender. The offender and the deceased had known each other since the previous year and had regular telephone and personal contact. This was a consensual commercial arrangement. The deceased had had other such arrangements and I do not accept that his arrangement with the offender was other than consistent with his usual practice. The deceased had money to pay for sex, and was prepared to do so, with males whom he found attractive, which included the offender. 97The deceased's close friends were aware of the relationship. The offender knew that the deceased lived alone on the third storey of a building in a unit without a balcony. That the deceased trusted the offender is evident from the offender's previous visits to the unit and the invitation which I find the deceased extended to the offender on 20 September 2009. 98I am not satisfied beyond reasonable doubt that the offender brought the packing tape that he used to bind and gag the deceased to the deceased's unit on 20 September 2009. Nor am I satisfied on the balance of probabilities that this item was already at the deceased's unit when the offender arrived on 20 September 2009, since I consider that had the packing tape been there already, AQ would probably have noticed it. However, irrespective of whether the packing tape was in the deceased's unit or brought there by the offender, I am satisfied that the offender intended to disable the deceased in the unit on 20 September 2009. 99The knife wounds on the deceased's body persuade me that there was a physical altercation, in the course of which the offender overpowered the deceased. I do not accept that it was the deceased who first picked up the tape. I do not accept that the deceased willingly offered his PIN to the offender. I am satisfied that the deceased divulged his PIN only as a result of threats made by the offender to him. 100I do not accept the offender's evidence that the accused was still able to speak notwithstanding that he had been gagged with packing tape. 101The manner of restraint was cruel and degrading. The offender was assaulted and then heavily taped around his wrists, hands, across his chest, his thighs, ankles, head and mouth. The offender went to considerable effort to disable and silence the deceased. I find that he appreciated that there was a real risk that no one would come to the deceased's aid before he died. This risk was compounded by the fact that the offender had taken the deceased's car, which postponed the realisation by the police that it was necessary to break into the deceased's unit to see whether he was inside. 102I do not accept the offender's evidence that his stealing money from the deceased from the deceased's bank accounts was an afterthought. I find that the motive for the offence of manslaughter was financial. It was little more than two hours from the time the offender telephoned the deceased from Strawberry Hills at 1.39pm on 20 September 2009 following his arrival at Central Station, that he made the first withdrawal at an ATM at Strawberry Hills. In two withdrawals, he took the maximum daily amount from the deceased's account, and continued to do so until he was apprehended.

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Objective seriousness 108The offender has pleaded guilty to manslaughter on the basis that his act in binding, gagging and abandoning the deceased in circumstances where the deceased could not move freely was both unlawful and dangerous, and that a reasonable person in his position would have realised that his conduct exposed the deceased to an appreciable risk of serious injury. The Crown accepts that the offender did not intend to kill the deceased or to inflict grievous bodily harm: Wilson v R [1992] HCA 31; 174 CLR 313. 109During the days that followed his binding and gagging the deceased, the offender took no steps whatsoever to see whether the deceased was alive, to render assistance himself or to alert others to the deceased's need for assistance. I find that his reason for failing to ring Triple-0 was neither his allegedly poor English or his lack of knowledge of the service, but his lack of humanity towards another human being whom he had exploited, and ultimately killed, for his own greed. The photographs tendered on sentence show the extent to which the deceased was bound and gagged. He acted with utter disregard to the deceased's fate. Almost a week passed before the deceased was found dead and decomposing in his unit. As I have said above, the offender's stealing the deceased's car led those who were concerned for his welfare, and who had reported his absence to police, to believe that he might be away. This delayed discovery of his body in the unit may well have contributed to his death. It also permitted the offender to obtain more money, since, as each day passed, he could access a further $1,000 from the deceased's bank accounts. 110It would be at odds with the plea of manslaughter for me to find that the offender realised that the deceased would probably die (R v Styman; R v Taber [2004] NSWCCA 245 at [331]) and I do not make that finding. Nonetheless in my view the offender must have appreciated that there was a real risk that nobody would come to the aid of the deceased before he expired because he was incapable of freeing himself from the restraints he had put in place. The fact that the offender found himself able to access the deceased's money for many days after his illegal acts is palpable evidence of his appreciation. For the reasons already given I do not accept that the offender believed that the deceased was capable of either releasing himself or making himself heard. 111The offences of manslaughter and aggravated robbery involved actual violence. The photographs tendered by the Crown show that the deceased was the subject of considerable violence. I have, in the reasons above, described the way in which he was bound and gagged. The photographs also show knife wounds on his body. Since the circumstances of aggravation relied upon were that the offender deprived the deceased of his liberty (by binding and gagging him), there is no element of double-counting in taking into account the actual violence involved in the commission of the offences. 112These offences were committed in the home of the deceased who had invited the offender there. The offender had been to the deceased's home on many prior occasions. The offender grossly abused the trust that the deceased had placed in him.

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Consistency 113The offender has, through his counsel, referred me to a number of cases which exhibit similar features to the instant case in that the manslaughter was coupled with an intent to rob the victim, or to obtain financial redress from the victim, including R v Taber and Styman [2005] NSWSC 1292 (concerning Taber and Ian Styman) and R v Taber, Styman and Styman [2003] NSWSC 93 (concerning Shannon Styman). 114The decisions specifically referred to above arose from the death of a woman of 71 years, who was found bound and gagged in her home. She was alive in that position for about nine days. She eventually died on about 16 January 2001 of smothering and dehydration. She lived alone and was found by shopkeepers who regularly delivered provisions to her house who noticed that she had failed to place her usual orders. One of the offenders had placed a Triple-0 call on 7 January 2001 but it was thought to be a hoax and not followed up. The three offenders, Ian and Shannan Styman and Taber, knew that the deceased kept large amounts of cash in the house. They planned to break in and steal her money. They stole $23,000. 115Barr J, in R v Taber, Styman and Styman [2003] NSWSC 93, sentenced all three offenders but the convictions and sentences of Ian Styman and Taber were overturned by the Court of Criminal Appeal in R v Ian Styman; R v Taber [2004] NSWCCA 245 which led to a retrial before Studdert J of Ian Styman and Taber. Shannon Styman did not appeal against his sentence of fourteen years imprisonment for manslaughter with a non-parole period of nine years and eight years imprisonment for aggravated robbery. There was partial accumulation of sentences in that the sentence for aggravated robbery was taken to have commenced on 26 March 2001 and the sentence for manslaughter commenced on 26 March 2002. 116Studdert J, in R v Taber and Styman [2005] NSWSC 1292, sentenced Ian Styman and Taber to ten years for the aggravated robbery and to eighteen years with a thirteen year six month non-parole period for manslaughter. The sentences in Taber and Styman provide guidance and stand as a yardstick against which a proposed sentence in the instant case can be measured. 117Although I have found that the offences were planned, I accept the offender's submission that none of the offences was part of a planned or organised criminal activity within the meaning of s 21A(3)(b) of the Crimes (Sentencing Procedure) Act 1999. I therefore take this matter into account. 118I reject the offender's submission that he was provoked by the deceased since I am not satisfied, for the reasons given above, that there was any such provocation.

[35]

Special circumstances 135The offender submitted that there are special circumstances justifying the reduction of the non-parole period and relies on his age, his medical condition and migration status in combination. The Crown submitted that there are no special circumstances. 136The offender, who was 22 at the time of the offences, is now 24. The time he has spent, and will spend, in prison coincides with the prime of his life. 137The offender also relied on a report of Dr Nielssen to support his submission that he was suffering from a mental condition, as a result of which his incarceration will be more onerous than for others. 138Dr Nielssen diagnosed the offender as suffering from depressive illness in remission and probable underlying psychotic illness in remission. His opinions are based on a history that I do not wholly accept. The offender told Dr Nielssen that he had experienced psychiatric problems since his teens. I accept that the offender suffered depression in his mid-teens as a result of the failure of surgery to correct his eye problem. 139The offender told Dr Nielssen that he was paranoid and hearing voices while in Australia after the deceased had drugged him but prior to the commission of the offences. As is apparent from the reasons set out above, I do not accept that the deceased did drug the offender or that he at any time blackmailed him. 140Dr Nielssen noted that the offender first received treatment in prison and was taking high doses of an anti-psychotic drug, Zyprexa, and an antidepressant, Efexor, when he saw Dr Nielssen in September 2011. Neither of these matters establish, in my view, that the offender is presently suffering from a mental illness or that he suffers from a mental illness which is in remission. I decline to find special circumstances on that basis. 141The offender submitted that, as a Chinese national who is in Australia on a study visa, he would be deported at the conclusion of his sentence. His family, apart from an aunt who visits him in prison infrequently, lives in China. He submitted that his experience of custody will necessarily be harsher and that the impact on his mental health of those factors constitutes special circumstances. 142I do not accept that the offender will necessarily be deported at the conclusion of his sentence. Whether or not he is deported is a matter for the Commonwealth and the offender's circumstances might change during his sentence which may make his deportation more or less likely. However, in any event, the fact of actual or potential deportation is irrelevant to the sentencing exercise and it would be an error for me to use deportation to determine any aspect of the sentence. As was said by Wood CJ at CL, Hislop and Johnson JJ agreeing, in R v Pham [2005] NSWCCA 94 at [13]: "It is established principle that the fact of deportation is irrelevant as a sentencing consideration, it being a matter exclusively for the Executive Government: R v Jap NSWCCA 20 July 1998 and R v Latumetan and Murwanto [2003] NSWCCA 70. Moreover the High Court has held that a foreign national should receive the benefit of being eligible for release on parole: Shrestha v The Queen (1991) 173 CLR 48 at 71 per Deane, Dawson and Toohey JJ." 143Accordingly, I disregard any prospect of the offender's being deported. 144Although the offender's age and lack of family in the jurisdiction could constitute special circumstances, I do not consider it to be appropriate to alter the orthodox ratio between the overall sentence and the non-parole period in the instant case and I am not disposed to do so. 145Under the law, the loss suffered by the deceased and his loved ones cannot be replicated by any sentence I impose. However, before I impose a sentence, I wish to pause to acknowledge the loss of Mr Craigie to his sister, his friends, his colleagues and his students at Saint Ignatius College, Riverview. I take this opportunity to extend my personal sympathies to them.

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Judgment (37 paragraphs)

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Cases Cited (11)