On 3 November 2017 Khanh Thanh Ly was charged by way of indictment that between 7 and 8 April 2016, at Cabarita, he murdered Miming Listiyani. He pleaded guilty, and a sentencing hearing then proceeded. The offender gave evidence, as did a forensic psychiatrist and a psychologist, and a number of documents were tendered, all of them by consent. The matter was then adjourned to 17 November when submissions were made on behalf of both the Crown and the offender.
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Circumstances of the offence
There is general agreement as to the background facts relating to the killing. Indeed the following summary derives from the agreed facts, which were tendered by the Crown with the consent of Mr Turnbull SC, who appeared with Ms N Mikhaiel for the offender.
At the time of the offence the offender and the deceased, Ms Listiyani, had been in a relationship for about two years. He was 35 at that time, having been born in Vietnam on 19 October 1980, and she was 27, having been born in Indonesia on 23 December 1988. The offender was an Australian resident. The deceased frequently resided here, usually staying with her father at Cabarita. It appears that both of them often travelled between Australia and various Asian countries.
In November 2015 the deceased became pregnant to the offender - a pregnancy that she terminated in February 2016. Although the offender agreed to the termination, it appears that he was unhappy about it. There were increasing tensions between the two of them, and it is apparent that the deceased was planning to end their relationship.
In the days before 7 April the deceased expressed concern to her friends that the offender had been harassing her via email. He wanted to meet her so that she could return his guitar. Also, she knew that he had DVDs of the two of them having sex, and she was anticipating that he would give them to her. With this in mind the two of them agreed to meet on the evening of 7 April.
Shortly after 6.00 that evening the offender collected the deceased from her father's home in Cabarita. He was driving his father's Audi motor car. They then drove to the Palace Hotel at Mortlake. Many of their movements while they were there were recorded on the hotel's CCTV system. They arrived a little after 6.30pm, and left at 10.46pm. In the early stages, until 9.35pm, they were sitting in the open air seating area, which is not covered by the CCTV cameras. However they were twice recorded as buying alcohol in the main bar. At 9.35pm they moved to a table in the main bar area, which is covered by CCTV. The footage shows several attempts by the offender at contact or intimacy with the deceased, which were apparently rejected. After they left the hotel they were last seen walking south towards Orchard Avenue. On two occasions the offender was seen grabbing the deceased, and then letting her go.
Orchard Avenue leads directly to Vineyard Way, Breakfast Point. When the two of them were in that street the offender attacked the deceased. Her multiple injuries, which I will describe in more detail later, were consistent with her head having been banged into the concrete pavement a number of times, causing serious facial injuries and brain haemorrhages. There were also signs of attempted strangulation, and numerous other injuries, including rib fractures. The screams of a female were heard by a number of residents in the area. A large pool of blood was later found on the footpath, together with the deceased's shoes and the offender's credit card.
Immediately after inflicting the fatal injuries, the offender placed the deceased's body under a nearby hedge and then walked back to the Palace Hotel. There he collected the Audi, and drove back to Vineyard Way, where he put the deceased's body in the boot of the car. He then drove to Cabarita Park, where he parked the car and removed the deceased's body from the boot. He carried her down the grass embankment towards the Parramatta River, and then put her on the ground and proceeded to drag her towards the water. A man who happened to be in the vicinity saw this and telephoned '000'. Shortly afterwards the police arrived at the scene. At that stage the offender was in the water standing over the body of the deceased. They were both naked. When the offender saw the police he ran into the nearby mangroves and tried to hide. He resisted attempts to arrest him, and had to be restrained by capsicum spray. At much the same time ambulance officers arrived at the scene and commenced CPR on the deceased. However this was unsuccessful, and she was pronounced dead at 12.06am.
The offender was transported to Burwood Police Station. He had bruising on his back, arms and legs. He displayed signs of extreme intoxication. His speech was slurred and slow, and he was unable to give his name or say where he lived. Later that day his legal representatives attended at the police station and advised the offender not to participate in an electronically recorded interview - advice which the offender accepted.
A post mortem examination of the deceased's body was conducted a few days later by the forensic pathologist Dr Tim Lyons. He found signs of very significant blunt force trauma on both sides of the head, and various facial lacerations, as well as widespread subarachnoid haemorrhage. As already indicated, these were consistent with the deceased's head having been forced against the concrete pavement on numerous occasions. There was also extensive bruising of the neck, which indicated neck compression, as well as injuries to the lips and mouth that were suggestive of suffocation. There were posterior fractures of both first ribs with associated bleeding and bruising. These fractures indicated that significant force had been applied to the area. There are a number of mechanisms by which they could have been caused, such as by the offender stomping on the deceased's back, or by heavily kneeling on her while forcing her head into the pavement. It is not to be known what mechanism applied in this case, as there were no witnesses to the killing.
I now turn to discuss the objective seriousness of this offence.
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Objective seriousness of the offence
I will commence with discussing the aggravating and mitigating factors that are required to be taken into account under s 21A of the Crimes (Sentencing Procedures) Act 1999 ("the Act"), being factors relating to the offence, as opposed to the offender, which are not inherent in the crime of murder. There are no aggravating factors under s 21A(2). The one mitigating factor under s 21a(3)(b) is that the offence, being a spontaneous one, was not part of a planned or organised criminal activity.
There is a very significant disparity between the submissions made by the Crown and by Mr Turnbull on this issue. The Crown submitted that the objective seriousness of the offending in this case falls well above the mid-range for murder. In support of this submission, the Crown Prosecutor referred to the fact that this was a brazen and frenzied killing. It was particularly brutal and violent, involving the infliction of multiple severe injuries on the deceased. In addition, the "cruel and callous" treatment of the deceased's body, which the Crown submits was designed to protect the offender from detection, can be taken into account in assessing the objective seriousness of the offence.
Mr Turnbull submitted that the offending falls below the mid-range of objective seriousness for murder. He pointed out that the public location of the attack, together with the fact that no weapons were used, show that the offending was spontaneous and unplanned. And the offender's actions afterwards, far from being designed to conceal the offence, were confused and irrational. The offender took the body to a public place where he was easily visible to outsiders, as indeed happened on this occasion. When the police arrived shortly afterwards he was naked, as was the deceased's body. He later showed signs of extreme intoxication. Indeed the presence of alcohol in his urine seventeen hours later indicates, according to Dr Olav Nielssen, that his blood alcohol level at the time of the offence might have been as high as 0.2 grams per 100mll - an extremely high reading. There was no methamphetamine (or ICE) in his blood.
I accept Mr Turnbull's submissions relating to the spontaneity of the offence and the irrationality of the offender's behaviour afterwards. There is no doubt as to the extent of his intoxication at the time. And although this cannot be treated as a mitigating factor, it serves to explain the offender's somewhat bizarre behaviour. On the other hand, the gratuitous cruelty involved in the killing of the deceased was extremely serious. It is difficult to imagine the agony and trauma experienced by the deceased in those last minutes of her life. She did nothing at all to provoke this violence. In all the circumstances I consider that the objective seriousness of the offending in this case is less than submitted by the Crown, but more than submitted on behalf of the offender. It is at about the mid-point of objective seriousness for murder.
At this point I turn to say something about the offender personally. The information on this subject derives principally from the psychiatric and psychological reports tendered on sentence.
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The offender's background
The offender is now 37 years old. He is of Chinese heritage but was born in Vietnam. He and his family came to Australia when he was six years old. He has a younger brother with whom he was initially close, but they have become more distanced over the years. His parents separated when he was in his teens, but they later reconciled and are currently living together. It seems that he had a difficult relationship with them when he was young. He was rebellious, and they used to punish him for his behaviour. However the situation has improved considerably since then, and they are currently very supportive of him. They regularly visit him in prison. His father has been treated for depression over the years.
The offender went to Lidcombe Public School and Homebush Boys High School, completing his Higher School Certificate in 1998. He then commenced a course in Arts and Nursing at the University of Western Sydney, intending to transfer to Medicine, but he gave up in 2000. Thereafter he did an accounting course at TAFE whilst working part-time for an IT hardware company. In 2007 he was arrested in Queensland and subsequently convicted of an offence of conspiracy to import a trafficable quantity of heroin. He then spent over four years in prison, from late 2007 to 2012. After his release from prison he came back to NSW where he returned to the University of Western Sydney and completed a Property and Finance degree. At the time of the current offence he was working as an assistant property valuer. He has been in custody since his arrest on 8 April 2016. Other than the offence for which he was incarcerated in Queensland he has no previous convictions.
The offender has had three serious relationships in his life. The first was with a woman whom he married before his incarceration in Queensland. They had no children. After his experiences in prison he withdrew from her and she filed for divorce. The second was with a woman called Francesca, which commenced after his release from prison. The third was with the deceased, Ms Listiyani. She was a friend of Francesca's, which initially put a strain on their relationship. As already mentioned, this last relationship had existed for about two years at the time of Ms Listiyani's death.
As to the offender's alcohol and drug history, after he left school he started to use illicit substances such as cannabis and ecstasy, but not on a regular basis. His drug use increased after his release from prison in 2012 when he also became significantly more dependent on alcohol. At that stage he was taking methamphetamine, but he started to experience let-down after taking it, so he commenced taking steroids as well. According to the psychiatric evidence, this is an unfortunate combination, which can cause bouts of severe anger.
It is apparent that the offender had a traumatic time during his incarceration in Queensland. After his release from prison he was a changed person in a number of respects. He avoided social contact and was constantly nervous and anxious, and not infrequently suffered panic attacks. The unanimous diagnosis from all three experts who have assessed him is that he is suffering from Post-traumatic Stress Disorder (PTSD) as well as a depressive illness.
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Other relevant matters
There were a number of contested issues in these proceedings. Without doubt the most significant relates to the extent, if any, to which the offender's actions at the time of the offence were a product of his PTSD. As the Crown Prosecutor pointed out, in order for this to be taken into account as a relevant matter on sentence, it must have "materially" contributed to the offending behaviour: DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1. As this is a highly significant matter on sentence I shall refer to the expert evidence on this subject in a little more detail than I otherwise would have done. The reports of three psychiatric or psychological experts were tendered into evidence, and two of them also gave evidence at the sentencing hearing. The Crown tendered the report of Dr Jonathon Adams, forensic psychiatrist, dated 30 October 2017. Dr Adams had interviewed the offender on 7 and 23 October 2017. He also had access to a number of relevant documents, including the reports of Dr Nielssen and Dr Lennings dated respectively 10 and 2 May 2017. In his report doctor Adams said as follows:
"I am unable to draw any clear nexus between Mr Ly's symptoms of PTSD and major depression with the offence itself. Notwithstanding this, it is reasonable to suggest that his underlying symptoms would have impacted on his decision-making and consequential thinking. However, given the account Mr Ly provided of his activities during the weeks leading up to the offence, I am not able to conclude that his reported persisting symptoms of PTSD and major depression had a significant disabling impact upon his overall level of functioning."
Dr Adams went on to suggest that the offender's consumption of alcohol would probably have impacted on his judgment and decision-making capacity. Dr Adams did not give evidence at the sentencing hearing.
Mr Turnbull tendered the reports of the psychologist Dr Christopher Lennings dated 2 May 2017 and the psychiatrist Dr Olav Nielssen dated 10 May 2017. Both of them also gave evidence at the hearing.
Dr Lennings interviewed the offender in prison on 12 April 2017. He also had access to considerable written material relating to the offence. The offender told him that he only had fractured memories of the offence. He expressed self-disgust and remorse at what he had done. He told Dr Lennings that before his imprisonment in Queensland he had been a happy, sociable person with many friends. Afterwards he became a different person: he was hyper-vigilant, socially isolated, sad and angry with frequent panic attacks. Indeed Dr Lemmings described the offender as having a near panic attack when he was talking about these issues.
Dr Lennings did not consider that the offender suffered from any psychosis or personality disorder. However he was clearly suffering from PTSD as a result of his Queensland incarceration, a condition that the doctor described as "chronic, complex and severe." The doctor also said that he considered that the offender's PTSD was directly related to the current offence. To quote his report (at par. 55):
"I do not believe that he is inherently antisocial and his violence appears to have been characterised by a combination of his alcohol use, his underlying post traumatic stress disorder and the situation that evolved."
In his evidence Dr Lennings said that the critical factor which was associated with the offence was the offender's anger and rage, which was totally consistent with someone experiencing significant PTSD. The offender's alcohol consumption clearly affected his behaviour, but - as the doctor said - people use other substances in order to medicate the distress they suffer, so that the multiple causes were all directly or indirectly related to his PTSD.
As for the offender's prospects of rehabilitation, the doctor expressed the view that his PTSD constitutes a risk factor for future offending, particularly if he continues to consume alcohol. The risk factor substantially depends on the offender receiving appropriate treatment for his PTSD, which may not be properly available in a prison setting.
Dr Olav Nielssen interviewed the offender on 15 March and 19 May 2017. He diagnosed him as suffering from a depressive illness, substance abuse disorder and PTSD. In his evidence Dr Nielssen was asked by the Crown Prosecutor about the causal link between the offender's PTSD and the offence. The doctor agreed that the PTSD alone would not have been sufficient to inform the offender's behaviour, as it was not his wish or intention to cause that kind of harm. He likened the offender's situation with that of war veterans who are, as he described it, volcanoes waiting for the un-inhibiting effect of alcohol to cause an eruption. Dr Nielssen repeated several times during the course of his cross-examination that he considered that it was the combination of the offender's PTSD and the un-inhibiting effect of alcohol which were directly responsible for his offending behaviour.
The expert evidence also indicates that sufferers of PTSD are prone to consume alcohol and other drugs in an endeavour to alleviate their symptoms. Accordingly, although the ingestion of alcohol on its own cannot be treated as a mitigating factor on sentence, it is a relevant factor in this case, as it affected the extent to which the offender's PTSD was responsible for the offence.
In all the circumstances I am thoroughly convinced that this offence would not have occurred were it not for the offender's PTSD. Accordingly it passes the test set out in De La Rosa.
This is a highly significant matter on sentence. As the Court in DPP v De La Rosa said, where the state of a person's mental health materially contributes to the commission of the offence, the offender's moral culpability for the offence may be reduced. That is, in my opinion, definitely the situation in the present case. It can also mean that the offender is not an appropriate vehicle for general deterrence, resulting in a lower sentence than would otherwise have been imposed. In certain cases it can mean that a custodial sentence will weigh more heavily on the offender, with the result that a lesser sentence might be appropriate. This is without doubt the situation in relation to this offender, as confirmed by the psychiatric evidence. Given that his PTSD was caused by his incarceration in Queensland, his imprisonment in relation to this offence is likely to be particularly onerous for him. According to Dr Lennings, prison will be extremely traumatic for the offender, and he will be a vulnerable prisoner.
The offender would clearly benefit from receiving treatment for both his PTSD and his depression. The evidence indicates that appropriate treatment might be difficult to find in a custodial setting. Nevertheless, I propose to recommend that he receive treatment during his incarceration. This is highly relevant to his prospects of rehabilitation. Before the offence he had never received treatment for his mental condition. Indeed, he was - unsurprisingly - unaware of the existence of PTSD, or the fact that he was suffering from it. According to the experts, if he receives appropriate treatment for his mental conditions and he abstains from alcohol and illegal drugs, then he has excellent prospects of rehabilitation.
I turn to aggravating and mitigating factors under s 21A of the Act relating to the offender personally. The only aggravating factor under s 21A(2) is that he has a record of previous convictions, namely the Queensland conviction in relation to the importation of drugs. There are no offences of personal violence. Indeed, on all the evidence he has never been a violent person. The Crown Prosecutor cross-examined him on the basis that he had been responsible for other violent behaviour. However the matters raised were not, in my view, of any real significance, and I accept that this offence was completely out of character for this offender.
As to mitigating factors under s 21A(3), all the evidence indicates that the offender has good prospects of rehabilitation and - as I have already said - if he abstains from alcohol and illegal drugs, he is most unlikely to re-offend. A number of references were tendered into evidence that attested to the offender's good work ethic. All of them referred to the sociable, cheerful person he was before his Queensland incarceration, and the extent to which his personality changed after his release. During his incarceration for the present offence he has applied himself diligently to working within the prison system, and has been commended by the manager of industries for his self-motivated and focused work.
As to the offender's remorse, I have rarely come across a case in which the offender is as remorseful and devastated by his own actions as in this one. Indeed all the references from friends and family members attest to the extent of the offender's bewilderment, regret and sorrow for what he has done. As his uncle described it, he is now a broken man. I take this remorse as a positive indicator for his prospects of rehabilitation.
Finally, and very importantly, the offender has pleaded guilty to murder, for which he is entitled to a significant discount on his sentence. Certainly it was in the face of an overwhelmingly strong Crown case, but the offender is still entitled to a significant reduction for the utilitarian value of the plea. The generally accepted range varies between 10% and 25% of the total sentence. Given that this plea was entered at an early stage of the proceedings, before the Burwood Local Court, I propose to reduce his sentence by a little over 20% on this account.
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The Appropriate Sentence
The maximum sentence for the offence of murder is life imprisonment. That penalty is reserved for the very worst categories of cases. The standard non-parole period is 20 years. Since the High Court judgment in Muldrock v the Queen (2011) 244 CLR 120 this has been accepted as a guide post, rather than a starting point, as had previously been considered.
According to s 3A of the Act, the purposes for which an offender is to be sentenced are as follows:
to adequately punish the offender for the offence;
to deter the offender and others from committing similar offences;
to protect the community;
to promote the rehabilitation of the offender;
to make the offender accountable for his actions;
to denounce the offender's conduct;
to recognise the harm done to the victim and the community.
As already indicated, a number of these purposes are not applicable in the present case, given the offender's mental condition at the time of the offence.
As to the harm done by his actions, an extremely moving Victim Impact Statement was read on behalf of the victim's father, Sem Eu. I would briefly like to say something to Miming's family: you have lost a beautiful, much-loved and highly valued person who was central to your lives. On behalf of the Court I extend my deepest commiseration. You will no doubt think that the sentence I am about to impose is completely inadequate, given the extent of your loss. But I hope that you will understand that sentencing is a complex process, and that there are many factors to be taken into account. One of the most important is to ensure that this type of behaviour does not happen again, so that other family members are not exposed to the trauma that you have had to endure.
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Special Circumstances
Mr Turnbull submitted that the offender's mental health issues and his vulnerability within a prison setting constitute special circumstances that justify a departure from the statutory ratio between the head sentence and the non-parole period. As Mr Turnbull acknowledged, given the seriousness of the offence and the inevitably lengthy sentence the offender will be serving, there will in any event be a lengthy parole period. Nevertheless, the matters he raises are significant, and I propose to slightly adjust the proportions in order to accommodate those issues.
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Sentence
The offender has been in custody in relation to this offence since 8 April 2016, and his sentence will commence on that date.
I recommend that the offender receive treatment during his imprisonment for his mental health issues.
Without the plea of guilty I would have sentenced the offender to a total sentence of approximately 22 and a half years with a non-parole period of approximately 16 and a half years. Applying the deduction for that plea, I impose the following sentence:
1. Khan Ly, for the murder of Miming Listiyani, I sentence you to imprisonment consisting of a non-parole period of 13 years, commencing on 8 April 2016 and expiring on 7 April 2029, with a balance of term of five years commencing on 8 April 2029 and expiring on 7 April 2034, making a total term of imprisonment of 18 years. The first date on which you will be eligible for release on parole will be 7 April 2029.
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Decision last updated: 28 February 2018