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Texts Cited: Nil

Category: Sentence

Parties: Rex (Crown)
Pei Lui (Offender)

Representation: Counsel:
C P Taylor (Crown)
J S Stratton SC (Offender)
B Winn (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Miers Legal (Offender)

File Number(s): 2022/00380193

Publication restriction: The publication of any information tending to reveal the identity of the co-offender or his family in connection with his trial, any evidence given in his trial or by connection with any evidence given in the trial (including any sentencing proceedings) of Pei Lui is prohibited. The co-offender is to be known by the pseudonym “John Henry”.
Statutory prohibition pursuant to s 15A(1)(c) of the Children’s (Criminal Proceedings) Act 1987 (NSW) in relation to paragraph [98].

JUDGMENT

1. In December 2022, Tao Cheng was 25 years old. He tragically lost his life following a brutal assault which occurred over a period of up to two hours in the stairwell of a building located in the centre of the Sydney Central Business District. Tao Cheng was the much-loved only child of his father and mother, Mr Yuanzhe Cheng and Ms Chi Chang. He was born in China, where his parents still live. He had come to Australia in 2019 to study a Master of Finance at the University of New South Wales in Sydney.

2. The only other people in the stairwell with the victim at the time of the assault which led to his death were Mr Henry (a pseudonym) and the offender, Mr Ifalame Valupei “Pei” Lui. It is now my task to sentence Mr Lui.

3. Mr Lui is to be sentenced following a trial conducted before a jury between 18 May 2026 and 9 June 2026. On 9 June 2026, the jury returned a verdict of not guilty to murder but guilty of manslaughter. The Crown put the case to the jury on the basis that Mr Lui was solely responsible for the hitting, punching, kicking and stomping occasioned upon Tao Cheng. The Crown case was essentially based on the account provided by Mr Henry, who gave evidence at Mr Lui’s trial.

4. Following a hung jury in his own murder trial in 2025, Mr Henry subsequently pleaded guilty to an offence of manslaughter. I sentenced Mr Henry on 16 December 2025 (see R v Henry (Sentence Judgment) [2025] NSWSC 1523). He received a discount for his plea of guilty, and also received a discount for assistance to the authorities (including his promise to give evidence against Mr Lui). He was sentenced to imprisonment for 6 years with a non-parole period of 3 years and 3 months on the basis of an unlawful and dangerous act arising from an extended joint criminal enterprise (that is, an agreement to steal, with the risk of serious injury being caused to another). Although Mr Henry did not agree to Mr Lui assaulting Tao Cheng, at the time of his conduct, Mr Henry foresaw that Mr Lui may use violence on Tao Cheng in seeking to take money or other valuables from him, exposing him to the risk of serious injury.

General sentencing principles

5. Part of my task is to make findings of fact which must be consistent with the jury’s verdict. To the extent that I make findings of fact adverse to Mr Lui, I must be satisfied of the relevant fact beyond reasonable doubt. To the extent that I make findings of fact favourable to Mr Lui, I must be satisfied of the relevant fact on the balance of probabilities: see The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (per Gleeson CJ, Gaudron, Hayne and Callinan JJ). In sentencing Mr Lui, I must apply the purposes of sentencing established at common law and set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act).

6. The conduct must be denounced. Mr Lui must be held to account and must be punished appropriately for his offending. The Court must recognise the harm done to the victim and the community. The sentence must deter Mr Lui, as well as others, from engaging in this type of conduct. The protection of the community is an important consideration. It is also important, both for the community and for Mr Lui, that the sentence should aim to promote his rehabilitation to the extent that is appropriate. As for all sentencing exercises, some of the factors pull in different directions.

7. The maximum penalty is an important statutory guidepost which needs to be kept in mind when I consider each of the factors relevant to the sentencing task, assess their significance and then determine the appropriate sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]-[27]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] (per McHugh J). The maximum penalty for manslaughter is imprisonment for 25 years (s 24 of the Crimes Act 1900 (NSW)). There is no standard non-parole period.

8. Manslaughter involves the taking of human life and any sentence must reflect the profound seriousness of this offence in light of the maximum penalty prescribed by our parliament on behalf of our community. In this case, the life of Tao Cheng was taken. The value the community places upon the preservation of human life is reflected by the need to have the conduct denounced by a sentence appropriate to both the circumstances of the case and the particular offender.

9. As to sentences for manslaughter, as Spigelman CJ stated in R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 at [133]-[134]:

“[133] …[M]anslaughter is almost unique in its protean character as an offence. …

[134] It is also relevant to recognise that, although manslaughters can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter.” (Emphasis in original.)

10. I also note the following apposite observation by Gleeson CJ, Gummow and Hayne JJ in Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [10]:

“The most obvious example of an offence where a guilty verdict may leave unresolved large questions as to the degree of culpability is manslaughter. Such questions then fall to be decided by the sentencing judge, who may receive little assistance from the need for consistency with the jury's verdict.”

11. Further, given the circumstances affecting culpability vary so much in manslaughter, together with the fact that it carries no standard non-parole period, it has been observed that “an assessment of where a particular crime of manslaughter is to be placed on some hypothetical range of manslaughters or types of manslaughters is not only not obligatory, it is unlikely to be of much utility” and such analysis “is best avoided”: Paterson v R [2021] NSWCCA 273 at [33] per Beech-Jones CJ at CL (R A Hulme, N Adams JJ agreeing). It is still necessary, however, to assess the objective seriousness of the offending in question, and in this respect I note the following observation of Johnson J (Payne JA and Simpson AJA agreeing) in Tepania v R [2018] NSWCCA 247; (2018) 275 A Crim R 233 at [112]:

“In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J).”

12. This passage was referred to with approval in Paterson at [30] and DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [64]. Beech-Jones CJ at CL also stated in Paterson at [29]:

“… it is necessary to address how the sentencing judge addressed the submissions of the parties concerning two separate but related concepts of importance to sentencing, namely the “objective seriousness” of an offence and the “moral culpability” of the offender. As its name implies, the former involves an objective assessment of the seriousness of the crime and the matters causally related to it. The latter is concerned with an offender’s moral blameworthiness for an offence. A determination of moral culpability can involve a consideration of a wider set of subjective factors affecting an offender than the former (see: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] and [54]; Bugmy v The Queen (2013) 249 CLR 571[; [2013] HCA 37] at [44]; Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14; Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [57]; Zreika v R [2021] NSWCCA 243 at [55]).” (Emphasis in original.)

Sentence Proceedings

13. The sentence hearing took place on 7 August 2026.

14. The Crown tendered a bundle of material which largely comprised of Mr Lui’s criminal and custodial history, including the facts relating to two offences for which Mr Lui was serving Community Correction Orders at the time of the killing of Tao Cheng.

15. A Victim Impact Statement provided by Mr Yuanzhe Cheng together with a translation was tendered. The translation was read to the Court by a representative of the Victims and Witnesses of Crime Court Support Group.

16. A bundle was tendered on behalf of Mr Lui including a psychiatric report prepared by Dr Olav Nielssen dated 5 August 2026; two certificates attesting to Mr Lui’s completion of two music courses in custody; a letter from Ms Amy Mullins (a close friend), and excerpts from the Bugmy Bar Book. Following the hearing, I was also helpfully provided with two sentencing schedules prepared by the Public Defender’s Office relating to sentences for manslaughter on the basis of unlawful and dangerous act.

17. I now turn to my factual findings relating to the offending conduct as well as surrounding conduct. After setting out my findings of fact I will then refer to Mr Lui’s personal circumstances as well as other aspects of the assessment of the sentence to be imposed. I will then pronounce sentence on Mr Lui.

Factual findings

Critical preliminary issue

18. A critical preliminary issue for me to determine for the purposes of sentencing Mr Lui is whether I accept, beyond reasonable doubt, the essence of Mr Henry’s account of what occurred in the stairwell on the night of 4 December 2022. Mr Henry’s consistent account from the time of his arrest, to an undercover officer in his cell in Queensland, and up to and including his evidence at Mr Lui’s trial, is that Mr Lui was solely responsible for the physical acts which led to Tao Cheng’s death.

19. I note that the Crown case was primarily put on the basis that the jury would accept the account of Mr Henry that Mr Lui was solely responsible for the physical acts against Tao Cheng, and that the jury would be satisfied beyond reasonable doubt that at the time Mr Lui inflicted the acts, he intended to kill or cause grievous bodily harm, and, as such, should return a verdict of guilty of murder. However, it was also put that if the jury was not satisfied beyond reasonable doubt of the requisite intention but was satisfied that the acts of Mr Lui amounted to unlawful and dangerous acts, it would be open to the jury to return a verdict of manslaughter. The Crown did not put an alternative case of joint criminal enterprise murder or manslaughter on the basis that both Mr Henry and Mr Lui each participated in physical acts of violence.

20. The Crown submits that I should accept Mr Henry’s account on a number of bases, including that there is significant independent support for it. Senior counsel for Mr Lui urges that I would not be satisfied, beyond reasonable doubt, of Mr Henry’s account that Mr Lui was responsible for the physical acts which led to Tao Cheng’s death. Rather, I should find, on balance, that the hitting, punching, kicking and stomping upon Tao Cheng was occasioned by Mr Henry.

21. In particular, the offender submits that Mr Henry’s evidence that Mr Lui stated “wouldn’t it be funny if we killed the guy” could not have been accepted by the jury in light of the manslaughter verdict. The offender submits, accordingly, that the jury must have rejected Mr Henry’s account that Mr Lui was the sole perpetrator of the violence.

22. I reject this submission. The jury was directed that intoxication (should the jury be satisfied Mr Lui was intoxicated) was a relevant matter to take into account in determining, beyond reasonable doubt, whether Mr Lui had formed the intent to commit the offence of murder. Even if the jury accepted Mr Henry’s evidence that Mr Lui had stated, at an earlier point, “wouldn’t it be funny if we killed the guy”, in light of the intoxication direction, a lack of satisfaction beyond reasonable doubt of the element of intent to kill or cause grievous bodily harm, at the time of the commission of the physical acts, was clearly an available pathway to the verdict of manslaughter.

23. In this regard, it is also relevant to note Mr Henry’s assertion to the undercover police officer that he thought Mr Lui “full on thought that the guy was still alive” and that Mr Lui “full on thought that he didn’t do that much damage to this guy”.

24. There was also evidence from Mr Henry that he and Mr Lui were drinking mixed spirits from a can with about a 12% alcohol content, as well as smoking cannabis. Mr Lui provided the alcohol, and Mr Henry stated that at one point they went to get more alcohol. Mr Henry said he had about eight to ten cans, and he could not keep count of the number of cans Mr Lui had.

25. Mr Lui told Dr Nielssen that at the time of the offence, over a period of around 11 hours (from about 3pm), Mr Lui had as many as 20 cans of bourbon and cola containing 1.9 standard drinks which, in Dr Nielssen’s opinion “even in [Mr Lui’s] huge frame would have left him with a blood alcohol content as high as 0.3 grams per 100 mL, or six times the legal limit for driving”. I note that the Crown does not dispute Mr Lui’s self-reported heavy alcohol use as told to Dr Nielssen in general terms. I accept Mr Lui’s report of his particular alcohol consumption that evening, in part because of the Crown’s general concession, and in part because it generally accords with the evidence of Mr Henry, as well as the CCTV footage and evidence of witnesses who met Mr Lui and Mr Henry later that evening.

26. In light of this available pathway, there is no basis for a submission that I am bound to accept that the jury must have rejected Mr Henry’s evidence in order to reach the manslaughter verdict.

27. Indeed, for a combination of reasons which I set out below, I am satisfied, beyond reasonable doubt, that Mr Lui was solely responsible for the hitting, punching, kicking and stomping upon Tao Cheng. In being so satisfied, I note (in the absence of sworn evidence from Mr Lui, the lack of any opportunity to test Mr Lui’s account, and that his account has no support from any of the forensic or physical evidence at the scene (indeed, to the contrary)) that I have placed no weight on the self-serving statements made by Mr Lui to Dr Nielssen, and also in his letter to the Court, absolving himself of any involvement in the physical acts occasioned to Tao Cheng: Chapman v R [2026] NSWCCA 113 at [34] (and the cases cited therein).

28. I have exercised considerable caution in considering the veracity of Mr Henry’s account given his obvious self interest in shifting the blame to Mr Lui. But not only was Mr Henry’s account of the evening and the events of the staircase largely consistent over time, there is also important independent evidence supportive of his account.

29. First, the evidence of Dr Quinto was that the cause of death was blunt force injuries to the head, chest and abdomen. The evidence included that there were two fractured ribs, but no other broken bones. Whilst it has been pointed out on the offender’s behalf on sentence that part of Mr Henry’s evidence was that when Mr Lui jumped on Tao Cheng’s arm it “sounded like it was broken” I am not of the view that the absence of a broken arm undermines the overall effect of Mr Henry’s evidence. Broadly speaking, I am satisfied that the effect of Mr Henry’s evidence was consistent with the expert evidence.

30. Second, I find that the demeanour or body language of Mr Lui compared to Mr Henry, and their interaction during the course of the evening, gleaned from the CCTV footage, showed Mr Lui to be the dominant personality of the two. He appeared to me to exude consistent charismatic energy, as compared to Mr Henry who had a milder and more passive presence, and was largely on the periphery during the course of the evening. Mr Lui was also, overall, physically bigger than Mr Henry (although not necessarily taller). I have also taken into account Mr Henry’s demeanour when giving evidence.

31. Third, part of Mr Henry’s evidence was that Mr Lui said about Tao Cheng after Tao Cheng entered the stairwell: “This guy has been freeloading here for a while. Like, I remember giving him $20, he didn’t take it or something like that.” Mr Henry stated that Mr Lui was aggressive verbally. Mr Henry also said that Mr Lui said, “Wouldn’t it be funny if we killed this guy?” Mr Henry said his reply was not to do it, “It’s not worth it.” Importantly, there was independent evidence from Shiven Single supporting a prior incident where Mr Lui was angered by Tao Cheng not taking money he had offered only a few weeks earlier. There was also independent evidence that Mr Lui was very short of money around this time, including asking his girlfriend for very small amounts of money at various points, as well as his bank statements showing his impecuniosity.

32. Fourth, Mr Henry also gave evidence against his interest at various points. For instance, he admitted he joined with the early attempts to obtain money from Tao Cheng, by making the money sign and saying “money”.

33. Fifth, the CCTV evidence shows that it was Mr Lui who left the stairwell a number of times to attempt to withdraw money using a bankcard inferentially associated with Tao Cheng. This is consistent with Mr Henry’s account of Mr Lui interrogating Tao Cheng for the PIN, and the increasing hostility and violence associated with Mr Lui’s endeavour to get the PIN which would enable access to the bankcard.

34. Sixth, there was support of Mr Henry’s account by way of the DNA evidence. That is, Mr Lui’s DNA matched, to a high probability, the DNA on Tao Cheng’s broken backpack bag strap, which is consistent with Mr Henry’s account of Mr Lui grabbing the backpack a number of times. There were also other items associated with Tao Cheng which had Mr Lui’s DNA as a minor contributor. No item associated with Tao Cheng had Mr Henry’s DNA on it. In addition, there was the deceased’s DNA on Mr Lui’s shoes, as well as only one set of wet footprints, attributable to Mr Lui, and not to Mr Henry. This supports Mr Henry’s account that Mr Lui was down the stairs with Tao Cheng and the fire hose actively hosing him.

35. Seventh, Mr Henry’s account that Mr Lui took Tao Cheng’s phone, is consistent with what can be seen from the CCTV evidence from the night, and also later evidence showing the presence of that phone proximate to Mr Lui’s location in Ashfield.

36. Eighth, I note the evidence supporting Mr Henry’s account of what occurred after he and Mr Lui left the stairwell and went out socialising. The post-stairwell hours were extensively (albeit not entirely) recorded by CCTV. Mr Henry gave evidence about trying to get into the Three Wise Monkeys bar on George Street, and that Mr Lui was getting angry about not getting in. One of the men they met nearby, also waiting, gave evidence, supporting Mr Henry’s account, that Mr Lui got a bit aggressive and was screaming and yelling at the security guards and was being very loud. Another witness gave evidence that Mr Lui was not angry, but rather a bit assertive, with security. In my view, overall, the evidence of the CCTV and the evidence of the other men not only supports Mr Henry, but also indicates, at a proximate time, the relative states of mind of Mr Lui and Mr Henry, with no observation of either aggressive or assertive behaviour being made of Mr Henry.

37. In addition, Mr Henry gave an account that he and Mr Lui, together with the group they had formed, crossed through Hyde Park in the city where there was an altercation between Mr Lui and a homeless man. Some other men in the group also gave evidence of this encounter. Whilst each witness gave slightly different accounts, the consistent aspect of the evidence was that Mr Lui was violent towards the homeless man with little provocation. I acknowledge that part of Mr Lui’s motivation may have been the protection of some young women who were being bothered by the homeless man, but, on any view, Mr Lui’s violence was entirely disproportionate to the situation he faced. Again, not only is this evidence supportive of Mr Henry’s account, this incident is further indicative of Mr Lui’s emotional volatility that evening.

38. Lastly, as I noted above, Mr Henry gave consistent accounts from the time of his arrest onwards. This includes a recorded and videoed account to an undercover officer which showed, in my opinion, a naïve authenticity and genuineness in a way which does not accord with a manufactured account.

39. In my view, the combination of these matters is such that I am persuaded beyond reasonable doubt of Mr Henry’s account that Mr Lui was solely responsible for the hitting, punching, kicking and stomping occasioned upon Tao Cheng.

40. For completeness, I note that in making this finding, I have taken into the account the submissions on behalf of Mr Lui that Mr Henry’s account should not be accepted because it is not credible that he was scared of Mr Lui and felt that he could not leave to get help or to get away from Mr Lui, in spite of plenty of obvious opportunities for him to do so. I have also taken into account that Mr Henry altered his plans to go to Queensland soon after the night of the assault, changing his evidence from his original claim that he was just going to look after his father, then eventually admitting he left New South Wales because of what had occurred in the stairwell.

41. As to Mr Henry’s inability to take advantage of the many opportunities to get help or to get away from Mr Lui, I accept Mr Henry’s account that he froze at the time, and that later he just wanted to forget the terrible and bizarre attack he had witnessed. Mr Henry was not a worldly young man. Rather he was naïve and sheltered. He failed to exhibit any moral courage, no doubt in part because of a combination of his background and the extraordinary situation he found himself in, not assisted by the fact he was affected by alcohol and drugs.

42. Further, whilst his absconding to Queensland showed a consciousness of guilt, as the Crown submitted at the hearing the question arises as to which conduct the guilt relates. On any view, Mr Henry had been associated in some way in the violent assault of a man, and he had returned the following morning to see that Tao Cheng had apparently died. This is sufficient to explain his motivation to flee the jurisdiction.

43. I also take into account that Mr Lui did not abscond from New South Wales. However, I note that he was living in temporary accommodation under someone else’s name, and was, at the time of the offending, already “on the run” in that he had failed to attend court whilst on bail.

44. Mr Lui also pointed to what was said to be a deliberate lie by Mr Henry when he said that in Queensland, that was the first time he had been in a holding cell, when in truth he had been arrested (and in a police cell) in Sydney a few months earlier for spitting on a woman. I also note that Mr Henry admitted to having made up part of the account he gave to the undercover officer when he said he offered to give Mr Lui money to stop assaulting Tao Cheng. Even if these two (and perhaps more) answers are to be regarded as untrue, and deliberately so, in light of Mr Henry’s evidence as a whole they are minor untruths, and do not come close to undermining his overall credibility, especially in light of the independent support for his account as outlined above, and my assessment of his demeanour.

45. Accordingly, I now go on to make the following findings of fact for the purposes of sentence. They are largely based on Mr Henry’s account, together with the agreed facts document tendered at trial. My findings are also informed by other evidence I saw and/or heard at trial, especially the CCTV footage.

Prior to the offence

46. Ms Amy Mullins met Mr Lui on a dating application in mid-2022. They communicated daily via Snapchat and email but only met in person about four times. In mid-November 2022, Mr Lui asked Ms Mullins to set up an account for him at the gaming café inside the Meriton precinct where Tao Cheng was killed.

47. Mr Henry was introduced to the gaming café through Mr Single, who resided at the same hostel as Mr Henry. Mr Single met Mr Lui through the gaming café. Mr Henry and Mr Lui would sometimes be at the gaming café at the same time as each other and would sometimes play a computer game together as part of a team against other online gamers.

48. Mr Henry was born in July 1997 and at the time of Tao Cheng’s killing he was 25 years old and residing in a share house in Bankstown. On 4 December 2022, Mr Henry was working as a cleaner. In the afternoon of 4 December 2022, he caught a bus into the city carrying a green bag containing his cleaning products and arrived at the gaming café at around 7:00pm.

The Deceased, Tao Cheng

49. In December 2022, Tao Cheng was homeless and sleeping in the fire escape stairwell of the Meriton precinct at 528 Kent Street, Sydney, where he was killed. This fire escape stairwell had direct access onto George Street, Sydney, and was near the internet gaming café. Prior to his death, Tao Cheng was in significant debt, even though he was working as a bricklayer’s labourer.

50. On 4 December 2022, the day of the assault leading to his death, at 9:03pm, Tao Cheng deposited $360 into his ANZ bank account via an ANZ ATM on George Street. At 9:13pm, approximately 5 minutes after entering the stairwell, Tao Cheng transferred $363.55 from his bank account to his Vantage FX account (a foreign exchange trading platform).

Events in and around the stairwell on 4-5 December 2022

51. Mr Lui had arrived at the gaming café at around 4:34pm on 4 December 2022.

52. CCTV footage from within and outside the Meriton precinct captured certain movements of Mr Lui, Mr Henry and Tao Cheng. Amongst other things it showed Mr Lui and Mr Henry spending time with each other. Mr Lui and Mr Henry entered the fire escape stairwell together at 9:03pm from the level nine hallway. Prior to that Mr Lui and Mr Henry had spent time together socialising in the gaming café whilst playing games and drinking.

53. Tao Cheng arrived at the stairwell after work at 9:05pm. He frequently slept there. From that point, Tao Cheng never left the stairwell.

54. I have set out the detail of the CCTV evidence in the Henry sentencing judgment at [34]-[44]. It is sufficient for present purposes to note the following relevant facts.

55. At 9:41pm, 10:18pm and 10:30pm Mr Lui exited the stairwell onto George Street and walked to the ANZ ATMs nearby on George Street, then returned to the stairwell via the gaming café, each time being absent for two to three minutes.

56. At 10:23pm, Mr Henry exited the stairwell into the hallway, unspooled the firehose from the alcove and returned to the stairwell holding the hose. At 10:24pm, Mr Henry leant out of the stairwell and reached back towards the alcove. After less than a minute, Mr Henry returned the firehose to the alcove and returned to the stairwell.

57. At 10:26pm, 10:33pm, and 10:36pm, Mr Lui left the stairwell to retrieve the firehose and take it into the stairwell, each time returning it to the alcove a couple of minutes later. At 10:40pm, Mr Lui again retrieved the fire hose, and Mr Henry returned it to the alcove about 6 minutes later. Meanwhile, at 10:42pm, Mr Lui exited the stairwell onto George Street and walked towards the ANZ ATMs, returning to the stairwell at 10:45pm.

58. At 10:48pm, Mr Lui opened the stairwell door and again retrieved the firehose from the alcove. At 10:49pm, both Mr Henry and Mr Lui opened the stairwell door to level nine, went into the hallway, and Mr Lui returned the firehose to the alcove. At 10:50pm, Mr Henry retrieved the firehose from the alcove and both men returned to the stairwell. Mr Henry stood in the doorway holding the hose before the door closed.

59. At 10:55pm, Mr Lui opened the doorway and Mr Henry was standing within the fire stairwell on the level nine landing. Mr Lui tossed the firehose into the level nine hallway, then closed the stairwell door.

60. At 10:59pm, Mr Henry opened the stairwell door, retrieved the firehose from the floor of the level nine hallway and returned to the stairwell. At 11:00pm, Mr Henry opened the stairwell door and returned the firehose to the alcove. At 11:01pm, Mr Lui opened the stairwell door, Mr Henry briefly exited into the level nine hallway, Mr Lui walked up the stairs in the stairwell and Mr Henry re-entered the stairwell.

61. Less than a minute later, Mr Henry opened the stairwell door, and both men exited into the level nine hallway, then walked and entered the gaming café. They both returned to where they had been sitting for a short time, then re-entered the level nine hallway.

62. At 11:05pm, both men returned to the fire escape stairwell, and Mr Lui is shown descending the stairs before the door closed. About 15 seconds later, the stairwell door opened, and Mr Lui is shown briefly ascending the fire stairs before both men exited into the level nine hallway. Mr Lui then retrieved the firehose from the alcove and returned to the stairwell while Mr Henry remained outside the stairwell in the level nine hallway, before entering the stairwell. Less than a minute later, the stairwell door opened, Mr Lui returned the firehose to the alcove and both men exited the stairwell into the level nine hallway.

63. At this point it can be noted that the card used by Mr Lui originally belonged to Miss Princess de Leon who lost her Commonwealth Bank debit card at the Myer store at Town Hall on 21 October 2022. Following the loss, she put a block on her card after it was used for three transactions in the Haymarket area. This card was then used by Mr Lui on 4 December 2022 at the ANZ ATMs located near the internet gaming café on George Street: at 9:43pm, 10:31pm and 10:32pm and twice at 10:42pm, each time for an “inquiry to savings” showing $0. Further between 11:28pm and 11:33pm, Mr Lui and Mr Henry attempted to use the card at the self-service machines in the McDonalds on George Street, near the gaming café.

64. As noted, given there was no CCTV within the stairwell, the only evidence of what happened to Tao Cheng in the stairwell came from Mr Henry in Mr Lui’s trial, together with his account to arresting officers on 20 December 2022, and to an undercover operative during a covert recording in the holding cells at Brisbane Watchhouse also on 20 December 2022 which also formed part of the evidence in the trial.

65. For the reasons I have set out above at [27]-[39], I accept Mr Henry’s account that Mr Lui perpetrated a sustained and vicious assault over a lengthy period of time (albeit not continuously) on Tao Cheng and that Mr Henry did not participate directly in the hitting, punching, kicking and stomping occasioned upon Tao Cheng which caused his death. Before any assault had occurred, Mr Lui had said “money money” to Tao Cheng. Mr Henry said that he thought Mr Lui was joking, and Mr Henry also said “money” and made a hand gesture. Mr Henry stated that he had been asked to hold things by Mr Lui, and at one point in the evening Mr Lui handed Mr Henry the Princess de Leon bankcard which he retained in his wallet until he was arrested in Queensland.

66. The firehose was used by Mr Lui on Tao Cheng’s body to clean up as he was not only bleeding, but had also defecated. The cleaning fluid belonging to Mr Henry was used by Mr Lui in this process.

67. As noted above, after the time in the stairwell, Mr Lui and Mr Henry went out socialising for several hours in the inner-city area, first attempting to gain entry to the Three Wise Monkeys (which Mr Henry entered for a short time), and then afterwards attending a nightclub on Oxford Street called Big Poppas. During the time at Big Poppas Mr Lui flirted with at least one woman and disappeared with her for about 10 to 15 minutes. In the early hours of the following morning Mr Lui, Mr Henry and some of the others went back to one of the other men’s hotel rooms to socialise further. Mr Lui and Mr Henry ended up leaving the hotel at around midday.

68. Mr Lui went by train to Ashfield, arriving around 1:00pm on 5 December 2022, carrying Tao Cheng’s phone and returned to his temporary accommodation at an Ashfield motel paid for by Ms Mullins. The booking was until 8 December 2022.

69. Mr Henry returned to the gaming café at 12:15pm on 5 December 2022 and went to the stairwell where he opened the stairwell door and looked down for approximately 13 seconds and saw Tao Cheng, not moving, causing Mr Henry to go into “flight mode”.

Events of 7 December 2022

70. On 7 December 2022, at about 2:50pm, Mr Badu, the Health and Safety Manager of the Meriton Towers conducted a general inspection of the fire stairwell. He entered the fire stairwell on level nine and found Tao Cheng’s body at the bottom of the stairs. He saw Tao Cheng lying on his chest with his shirt pulled up his back, lying diagonally with his head facing towards the cage-style gate. There were clothes around Tao Cheng’s feet at the bottom of the steps. Mr Badu yelled out, “hey mate, hey mate” but received no response. He saw blood on the floor and walls of the stairwell that appeared black and watery.

71. Mr Badu went to the hotel lobby and asked staff to contact the hotel manager, and other staff members associated with the Meriton Group. Mr Badu returned to the stairwell with two staff from the Meriton Group. One of them used his foot to “nudge” Tao Cheng before touching his exposed lower back which was freezing cold. Mr Badu called “000” at 2:57pm, reporting that he had located a male that looked homeless and deceased, who was lying face down on his stomach and not breathing. Mr Badu was instructed to turn Tao Cheng onto his back. Mr Badu confirmed to the operator that Tao Cheng was past resuscitation and could not be saved.

72. A short time later, NSW Police and ambulance officers arrived at the stairwell. They saw Tao Cheng’s body at the bottom of the stairs, with his dark green backpack and black jacket at his feet at the base of the stairs.

73. Tao Cheng had red marks to his left eye and blood coming from his nose. His shirt had been ripped open and his pants pulled down. The pockets to his pants were pulled out and empty. His stomach and lower chest were discoloured and there were multiple red marks to the chest and inner thighs. Faecal matter was found around his inner thighs, as well as on his legs, feet and inside his pants. A crime scene was declared and officers commenced crime scene guard duties.

74. Later that day, at 6:05pm, Mr Lui returned to the gaming café and approached the counter. He grabbed a wet wipe before walking towards the hallway which leads to the stairwell. At this time, police were guarding the crime scene. Mr Lui walked back and forth before exiting the gaming café via the escalator. He then walked to Redfern station and took a train to Petersham.

Post-mortem examination of Tao Cheng’s body

75. Tao Cheng’s body was examined and the cause of death was found to be blunt force trauma to the head, chest and abdomen. Tao Cheng was found to have severe traumatic head injuries with bleeding around the brain and below its coverings. He had extensive amounts of blood within his abdominal cavity, the source of which could not be confirmed, but appeared to be around the spleen. Within Tao Cheng’s chest, there was a mix of blood and fluid, suggestive of injury with two rib fractures present. There were gastric contents in his large airways. No drugs, medications or substances were detected in Tao Cheng’s body.

Mr Lui’s arrest

76. Mr Lui was arrested in the vicinity of the Campsie Hotel on 16 December 2022 at about 12:20pm. The Adidas shoes he was wearing were seized and tested and as noted above, shown to have Tao Cheng’s DNA on them. Mr Lui exercised his right to silence, but was placed in a cell with an undercover police officer. During the course of a lawfully recorded conversation, Mr Lui said that “they’re saying there’s a body. When I was there … There was nothing in there. There was no-one there”. This was clearly a lie.

Mr Henry’s arrest

77. Mr Henry was arrested by Queensland Police in a town in Queensland on 20 December 2022, where he was visiting his father.

Objective seriousness of criminality

78. Mr Lui is to be sentenced for an offence of manslaughter based on an unlawful and dangerous act. As I have found, beyond reasonable doubt, that he was solely responsible for the infliction of the acts upon Tao Cheng which led to his death, I do not accept the submission made on behalf of the offender that the objective gravity of the offending is at about the same level as that of Mr Henry. It can be noted that Mr Henry’s liability at sentence was on the basis of an unlawful and dangerous act arising out of an extended joint criminal enterprise, and not on the basis that he inflicted any of the physical acts which led to Tao Cheng’s death.

79. Whilst I acknowledge that the offending was not planned, and was committed opportunistically, this was nevertheless an extremely serious example of the crime of manslaughter involving a vicious random attack on a completely defenceless and passive victim over a period of two hours.

80. I will deal with the issue of Mr Lui’s moral culpability after I have reviewed Mr Lui’s subjective material.

Subjective material

81. The following material is derived from Dr Nielssen’s report and except for one matter (which I will come to below), is not disputed by the Crown.

82. Mr Lui was born in June 1995 in Otahuhu, New Zealand, and was 27 years old when Tao Cheng was killed. He is now 31 years old. He grew up in the western suburbs of Sydney. His parents were both born in Tonga, and Mr Lui is the third of his parents’ four children. He has three full sisters. His mother went on to have a further five children with subsequent partners. Mr Lui does not know what his father did for a living, and only remembered meeting him once, when he was six or seven years old.

83. Mr Lui’s family was homeless for periods of his childhood. When Mr Lui was about 12 years old, he was assaulted by his mother causing him serious facial and chest injuries. As a result, he was hospitalised and then placed in foster care. His foster care was unstable, in part because he would run away. He began drinking alcohol when he was 12 years old and in foster care. He was sent to a behavioural school soon after he started high school.

84. Mr Lui obtained the equivalent of a year ten qualification at TAFE. After leaving foster care he worked in construction and car detailing. He told Dr Nielssen that he was employed most of the time since leaving care but his employment had mainly been informal.

85. Mr Lui has a son who is now eight years old. Tragically the child’s mother died from cancer last year and the son has been placed with the parents of his former partner. Whilst his mother, younger sister and another former partner had continued to support him in prison, his mother and sister had not been able to bring his son to visit.

86. Mr Lui returned to heavy drinking in 2018 and 2019 and has been a user of cannabis since he was 21. Dr Nielssen has diagnosed Mr Lui with a substance use disorder in long term remission as he is detained in an institutional setting in which there is relatively little use of cannabis, and almost no use of alcohol. Dr Nielssen reports that Mr Lui intends to abstain from substance use indefinitely, even though he also notes that he has not yet completed any kind of alcohol use courses or counselling.

87. Mr Lui reported to Dr Nielssen that he was addicted to internet gaming and enjoyed “fast paced games … first person shooters … strategic games … trying to stay alive” which he described as “an escape from reality”. He told Dr Nielssen that he had entered competitions and had been part of online gaming teams, playing games that included Rain, Apex Predator and Call of Duty.

88. Mr Lui also reported that as a child, when he and his sisters lived with relatives in over-crowded households, he was exposed to sexual abuse by an older boy. The Crown urged the Court to treat this aspect of Mr Lui’s self-report with considerable caution as there was an absence of any detail and an absence of psychiatric material which would assist the Court in a meaningful way in relation to the impact that those particular acts may have had upon Mr Lui.

89. I am of the view that Mr Lui’s report of childhood sexual abuse is likely true, given the lack of stability and security which attended Mr Lui’s early years and the opportunity for it to have occurred in the likely absence of satisfactory adult supervision. In any event, given the extremely difficult circumstances of Mr Lui’s childhood, including a serious assault by his mother, and his placement in foster care, it probably adds very little to the effects on Mr Lui of what is conceded to be Mr Lui’s very difficult formative circumstances which can properly be described as a profoundly deprived childhood.

Moral culpability

90. Given the subjective material, and in particular, Mr Lui’s profoundly deprived childhood, I am of the view that the observations made in Bugmy are relevant to this sentencing exercise.

91. As Simpson AJA stated in R v MJ [2023] NSWCCA 306 at [5]:

“Implicit in those observations [in Bugmy] is recognition that a childhood or adolescence marked by profound disadvantage may have an inhibitory effect on the development of values, on the acquisition of a moral compass, and on the capacity to make behavioural decisions in accordance with prevailing social norms. The relevant causal connection is between the dysfunctional background and the offender’s impaired socialisation and adjustment to, and conduct in accordance with, those social norms.”

92. Further, as earlier stated by her Honour (Bathurst CJ and Adamson J agreeing) in R v Millwood [2012] NSWCCA 2 at [69]:

“I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a ‘normal’ or ‘advantaged’ upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.”

93. In accordance with these observations of Simpson JA, I agree with Mr Lui’s submission that I should find Mr Lui’s moral culpability reduced, to a degree, on the basis of the profound deprivation in his childhood. That in turn means that it is appropriate to moderate the weight that I would otherwise view as appropriate to be given to punishment and general deterrence. I also acknowledge that rehabilitation is clearly important in this sentencing exercise. However, as is usually the case when sentencing an offender, and as noted above at [6] some factors pull in different directions, and in this case, that certainly applies. Mr Lui’s serious random violence against a defenceless and passive victim means that it is not appropriate to moderate the sentence in terms of specific deterrence, denunciation or in relation to the recognition of the harm done to the victim and the community. Further, the sentencing consideration of protection of the community is of heightened importance in this sentencing exercise.

94. I also note that although I am not permitted to take self-induced intoxication into account as a mitigating factor (s 21A(5AA) of the Sentencing Act), there is an important distinction between using such intoxication as a mitigating factor generally and using it to reduce an offender’s moral culpability as part of a general mix of factors which are intrinsically connected.

Section 21A Sentencing Act aggravating factors and other matters

95. Mr Lui has a record of previous convictions including for “serious personal violence offences” (noting the offence of manslaughter is also a serious personal violence offence) (s 21A(2)(d) of the Sentencing Act). Those previous serious personal violence offences are stalk/intimidate another person with intent to cause physical or mental harm in 2017; stalk/intimidate another person with intent to cause physical or mental harm, and, destroy or damage property in 2020.

96. The offence was committed in company (s21A(2)(e)).

97. Mr Lui was on bail for unrelated offending at the time of the offence (and a Local Court Bench Warrant was issued in relation to a related alleged breach of bail). He was also on two separate Community Correction Orders (s 21A(2)(j)).

98. Mr Lui also committed violence offences as a child including [REDACTED]. (It is conceded that the juvenile offending is admissible, as the requirements of s 15 of the Children (Criminal Proceedings) Act 1987 (NSW) have been met: see Tapueluelu v The King [2006] NSWCCA 113 at [28]-[30]; Tukuafu v The King [2024] NSWCCA 84 at [159]-[165] and Dennis v The King [2024] NSWCCA 137 at [54].) Even though Mr Lui was not convicted for these offences, they have relevance to a potential disentitlement to leniency, may indicate that the current offending was not an uncharacteristic aberration, and may show a continuing disobedience to the law potentially warranting a more severe penalty with additional focus on retribution, deterrence and protection of the community: Tukuafu at [166]-[173]. I acknowledge that Mr Lui’s juvenile offending was, apart from the present offence, more violent than his adult offending (albeit his adult offending still involved frightening behaviour involving property damage near or in the presence of others).

99. I further note he was recently convicted of an offence of use or possess a mobile phone in place of detention (phone in custody offence), for which he received a three-month fixed term (which concluded on 9 May 2026).

100. In all the circumstances, including the recent commission of the phone in custody offence, I am of the view that there should be recognition of Mr Lui’s continued disobedience to the law. Further, although Mr Lui’s violent behaviour was, prior to this offence, apparently starting to moderate, this current offence could not be said to be an aberration.

101. Mr Lui submitted that I should take into account the absence of an otherwise significant aggravating factor, that is, that there was no weapon used in this case. I agree with the Crown, however, that the absence of an aggravating factor is implacably neutral, and in any event, in my view, the use or otherwise of a weapon in a crime which results in the death of a person has little effect, without more, on the objective seriousness of an offence in most instances: see R v Youseff (No 4) [2025] NSWSC 125 at [47].

Section 21A Sentencing Act mitigating factors

102. I have considered the following mitigating factors.

103. I accept that the offence was not part of a planned or organised criminal activity (s 21A(3)(b)).

104. As to prospects of rehabilitation, Dr Nielssen opined as follows:

“Mr Lui was assessed to have the intellectual capacity to derive some benefit from counselling, and he reported that he has arranged to speak to a counsellor after the conclusion of the proceedings to discuss the effect of sexual abuse. That would be a good opportunity to discuss the effect of other losses and traumatic events on his emotional state and his subsequent pattern of behaviour. The other recommended treatments would be his engagement in formal substance related counselling and in vocational training to prepare for his eventual release. He was not found to have a major psychiatric disorder for which he requires any specific psychiatric care.

With regards the likelihood of further similar offences, repeat homicides are closely linked to the base rate of homicide and serious violence in the community, and hence are rare in New South Wales, because the base rate of homicide is so low. Interventions that might further reduce the risk include successful treatment for substance use disorder, and post release monitoring to ensure adherence to any recommendation to avoid disinhibiting substances, improved self awareness and personal maturity, and also vocational training aimed at helping Mr Lui establish himself in the community after his release. With those interventions, Mr Lui was thought to have reasonable prospects for long term rehabilitation.” (Emphasis added.)

105. I also note that Mr Lui wrote a letter to the Court, which although attempting to exculpate himself from any direct violence (which I reject), indicated at least a degree of awareness of the wrongfulness of the death of Tao Cheng and he expressed his condolences to Tao Cheng’s parents. He also indicated he wished to assist others experiencing homelessness in the future.

106. There is, however, no meaningful evidence of true remorse. This lack of remorse also goes to Mr Lui’s prospects of rehabilitation. I am also mindful that, where there are lengthy terms of imprisonment, the prospects of rehabilitation may well take on less significance. In light of these matters, including the lack, to date, of any interventions, my assessment of Mr Lui’s prospects for rehabilitation is that they are guarded.

107. I am of the view that it is appropriate, as is conceded by the Crown, to apply a 25% discount for the utilitarian value of the plea of guilty as a consequence of ss 21A(3)(k), 25E(1) and 25E(3)(a) of the Sentencing Act, in light of Mr Lui’s early offer of a plea to manslaughter, which was not accepted by the Crown.

Special circumstances

108. I accept the defence submission that I should make a finding of “special circumstances” under s 44(2) of the Sentencing Act and vary the statutory ratio on the basis that a longer period of parole would be beneficial to both Mr Lui and the community. This would allow Mr Lui to receive additional supervised assistance to help him live a productive, drug-free, and hopefully crime-free life.

Victim impact statement

109. Tao Cheng’s father, Mr Yuanzhe Cheng, stated that his only son was independent, hardworking, brave and diligent. He was infinitely patient, kind and tolerant; a caring friend who always thought about others and was the first to lend a helping hand when someone was in need. He had infectious laughter that could light up a room and a quirky sense of humour, and he would surprise his parents with gifts on their birthdays.

110. Tao loved hiking, mountain climbing, traveling, playing ball games, chess, and the Erhu, a Chinese stringed musical instrument.

111. Mr Cheng described how he and his wife planned to come to Sydney for their son’s graduation, and how they looked forward to having Tao return home to China as well as caring for them in their old age. Their pain has permeated every corner of their lives, and they dread hearing others talk about their children. Tao’s photos hang all around their home, and a seat is always kept for him at the dining table.

112. The victim impact statement provided the Court with insight into who Tao was and the impact of his death on his family. I am acutely conscious of the fact that neither words nor the imposition of a sentence can restore the loss of a loved one or assuage the grief caused to this family, but it is important that the impact of the offender’s actions upon the victim’s loved ones be recognised and never forgotten. On behalf of this Court, I extend my sympathies and sincere condolences to Tao Cheng’s family.

Schedule of other sentences for manslaughter

113. As observed above, manslaughter offences attract a particularly large range of sentence outcomes. Whilst I have found the cases contained within the sentencing schedules provided to me of some assistance, no two cases are ever the same, and, of course, individual sentencing outcomes cannot establish binding sentencing principles (Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]).

Sentence

114. Before turning to the appropriate sentence, I must consider the issue of the starting date of the sentence. Since Mr Lui’s arrest on 16 December 2022, for a period of almost 7 months (210 days) Mr Lui was also bail refused on matters which were subsequently withdrawn. Further, for a period of 3 months, Mr Lui served a fixed term for the phone in custody offence. I am of the view that Mr Lui’s sentence should commence on 1 February 2023, that is backdated to about six weeks after the date of his arrest for the current matter.

115. Taking into account all the matters I have referred to above, I start with a figure of 14 years imprisonment which I reduce by 25% for the plea of guilty. I impose a head sentence of 10 years and 6 months. Reflecting the finding of special circumstances, I impose a non-parole period of 7 years with the sentence to commence on 1 February 2023.

116. Ifalame Valupei “Pei” Lui, for the manslaughter of Tao Cheng, I sentence you to imprisonment for 10 years and 6 months. I set a non-parole period of 7 years commencing on 1 February 2023 and an additional term of 3 years and 6 months commencing on 1 February 2030 and ending on 31 July 2033.

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Amendments

31 August 2026

Amendment to formatting of catchwords

31 August 2026

Corrections to the spelling of "Dr Nielssen"

07 September 2026

Added citations to the correct fields in the coversheet.