This is yet another case where alcohol has made a substantial contribution to the death of one young man and to another having to spend a substantial period in gaol. Alcohol was not of course the only cause. The stupidity of the victim and his killer of course contributed - firstly in becoming drunk, then in that state to arguing heatedly, then after they were stopped, to resurrecting the argument, and finally to one of them obtaining and then using a knife. However it is impossible to avoid the conclusion that alcohol was a major contributing factor.
On 4 February 2014, the Prisoner killed Gongchen Chen. On 5 November 2015 a jury found the Prisoner not guilty of murder but guilty of manslaughter. It now falls to me to sentence him. I instruct myself that any conclusions I reach must be consistent with the jury's verdict, and that I must be satisfied beyond reasonable doubt of any further findings I make adverse to the Prisoner, but that in the case of findings that operate by way of mitigation, it is sufficient if I am satisfied of them on the balance of probabilities.
Having regard to the similarity in the names of some of those involved on the night the deceased was killed, and without intending disrespect, it is convenient to refer to some of the persons involved by their first names or nicknames.
The circumstances of and leading up to the killing were as follows.
The Prisoner and the deceased occupied 2 bedrooms of a 4 bedroom unit in which the killing occurred. It is clear that the deceased and Accused were, at least until the night of 4 February, the best of friends and had been for some time.
On 4 February the Prisoner invited two males Huaan Chen and Hui Chen and the deceased invited 2 females Shan Xie, also known as "Candy", and Li Zhang (also known as "Stella") to dinner at the shared unit. After dinner, all six participated in a game which involved the drinking of alcohol. It is clear that all ingested a considerable quantity. For example, Constable Machodo, who attempted to have conversation with Candy and Stella sometime after 1.30 am next morning, remarked that "due to their level of significant intoxication [he] found it difficult to follow their erratic conversation".
At about midnight Hui left.
Also in the flat during the evening were 2 other persons Chen Chen and Crystal, Chen Chen's girlfriend. They occupied a bedroom at one end of the unit, spent much of the night there and did not participate in the game or in drinking.
Within the evidence there were a substantial number of inconsistencies for which, except possibly for the drinking, it is impossible to account. However, most do not bear on the critical actions of the deceased and the Prisoner and to that extent it is unnecessary for me to detail them further. They do however make it difficult to rely on much of the evidence
There is no doubt that the deceased and the Prisoner became involved in argument and that both became angry, the Prisoner more so than the deceased. There was some degree of physical altercation, initially pushing and shoving. Quite apart from any use of weapons there is evidence of a limited degree of aggression by both and, though there is evidence that prior to the introduction of weapons the Prisoner was substantially more aggressive than the deceased, I am unable to so conclude beyond reasonable doubt.
The Prisoner fetched a knife from his bedroom. Blood, consistent with the deceased's DNA, was located on the box in which the knife was kept. Combined with evidence of minor injury found by the pathologist who examined the deceased, it seems likely that Prisoner had inflicted some injury on the deceased prior to obtaining the knife. Ultimately it was by the use of that knife that the deceased was killed. The fatal wound was a stab to the deceased's left upper leg that impacted the femur and penetrated the femoral artery causing the deceased to bleed to death. Other injuries caused by the knife were a large incised but shallower wound below the fatal one, a deep incised wound to the back inner aspect of the left forearm and a linear scratch mark, in the opinion of the pathologist, most likely caused by the tip of a sharp object such as a knife, on the back inner aspect of the left upper arm. Dr Brouwer referred to these latter two injuries as "defence-type" injuries.
Afterwards the tip of the knife was found to be bent suggesting that the major wound was delivered with considerable force.
But the knife was not the only weapon that may have played a part in the conflict on the night of 4 February. During the preparation of dinner on the night a meat cleaver was used. At that time it was whole. When the police arrived on the scene the handle of the meat cleaver, broken off the blade, was on the floor of the lounge room and the blade was not to be seen. Some days later the handle was found in a basket of toys with numerous toys on top of it. Belatedly, Chen Chen said that he had thrown it there but there was no explanation for how the toys came to be on top.
The causes of the argument between the Prisoner and deceased are not entirely clear. One factor seems to have been that the females were relieved of having to drink as much as the game strictly required, a circumstance that irritated the Prisoner. Another may have been the Prisoner telling the deceased that he thought Candy was not the right person for the deceased. The Crown suggested a third.
Until late 2013 the Prisoner had been in an intimate relationship with the deceased's sister, Elva. She had terminated the relationship and asked him to move out of the unit. At about 12.19 am on the night the deceased was killed the Prisoner phoned Elva and asked if she missed him. She replied, "No. I come to China to look for my husband. I not miss you". The Prisoner replied, "Okay, you need to look after yourself for your family. I'm not looking after your family anymore". Some 15 minutes later the Prisoner again phoned Elva and said something to the effect, "If anything happens to your younger brother, don't blame me".
The Crown submitted that the Prisoner was jealous of the deceased and, driven by jealousy, had become so angry that he decided to take out his anger on the deceased and fight with the knife.
No-one - and I include Huaan Chen whose evidence was quite unsatisfactory, in that reference - gave any meaningful evidence of seeing the infliction of any of the injuries suffered by the deceased or of seeing the meat cleaver used in the dispute. In the result, while I accept that the Crown theory might be correct, I do not feel able to conclude beyond reasonable doubt that it is.
Immediately after the stabbing the Prisoner left the building in the company of Huann Chen, Candy and Stella. In the lift while travelling to the ground floor the Prisoner asked one of the females to call an ambulance and 000.
Within a day of so the Prisoner travelled to Perth and commenced to live in rental accommodation. On 10 February he learnt that police had visited the premises and then left. On 14 February he presented himself at a Perth police station.
The directions to the jury left to them the possibility that they might find manslaughter on the basis of excessive self-defence, provocation or an unlawful and dangerous act. When returning a verdict the foreperson indicated that some members of the jury wished the Court to know of the basis for their conclusion: The foreperson also said that all jurors were agreed upon the basis for their verdict. Neither counsel having any objection to the foreperson so indicating, I permitted it. I was informed that the basis was an unlawful and dangerous act.
That said, the decision as to the basis upon which the Prisoner should be sentenced, I apprehend is mine. Perhaps fortunately, I agree with the jury. I do so for these reasons. Given the friendship between the Prisoner and the deceased I would not readily be prepared to conclude that the Prisoner intended to kill or inflict grievous bodily harm on the deceased and this notwithstanding their argument on the night, some anger on the part of the Prisoner and the Prisoner's resort to a knife.
Also arguing against an intention to inflict death or grievous bodily harm is that the injuries to the deceased occurred where they did. Both the arm and the leg are not obvious places to strike if one is seeking to kill. The leg is also an unlikely place to seek to inflict grievous bodily harm.
The circumstances surrounding the meat cleaver also raise a number of possibilities other than an intent to kill or inflict grievous bodily harm, possibilities which have not been excluded beyond reasonable doubt.
In the result the Prisoner will be sentenced upon the basis that led to the jury's verdict. As I have indicted the precise circumstances are unknown but they certainly include the Prisoner's deliberate drinking to a stage where he was intoxicated, becoming angry, not walking away from an argument, bringing an obviously dangerous knife into the dispute and then wielding it in some fashion amounting to an assault.
Admitted into evidence during the sentencing hearing was a Victim Impact Statement of the deceased's mother. The Crown applied and I agreed that the statement should be taken into account in determining the appropriate sentence on the basis that the harmful impact of the deceased's death on the deceased's mother is an aspect of harm done to the community - see Crimes (Sentencing Procedure) Act 1999, s 28(4). In the document Mrs Chen records that her family treated the Prisoner as a member of it and, inter alia, the impact on her of the deceased's death and of difficulty in coming to terms with the verdict.
The latter is not a matter that should affect the sentencing but the impact of not being able to sleep and finding it hard to go on with life without one of her 2 children whom she had raised substantially on her own is obviously relevant. Mrs Chens' letter helps to bring home the loss which offences such as that of the Prisoner cause.
Turning to the Prisoner's subjective circumstances, he was arrested on 14 February 2014 and has been in custody ever since. His sentence will commence from that date.
It is also appropriate to record that it was agreed between Counsel that on 20 May 2015 at the Burwood Local Court and during committal proceedings the Prisoner through his legal representatives indicted that he was willing to plead guilty to manslaughter. That offer was not accepted by the Crown although the Crown conceded that the utilitarian value of that offer might be assessed in the low part of the 10-25% range of discounts for a plea. While appreciating that in the result the trouble and expense of a trial was not avoided, I think it proper to allow the Prisoner some discount for that offer. I propose to allow a discount of the order of 17.5%.
The Prisoner was did not give evidence on sentence but given the totality of the material that was admitted into evidence I have no difficulty in accepting the matters to which I am about to refer.
The Prisoner is single. He was born on in November 1990 in China, of which country he is a citizen. He reported a happy childhood but that his parents were disappointed at his lack of application to schoolwork. In China he worked before coming to Australia at age 18 on a student visa that expired in 2011. He seems to have performed appreciable work in Australia after ceasing study I suspect, although I do not hold it against him, in breach of the Immigration legislation and/or conditions of his visa. He speaks some English and reported to Dr Nielssen that he works 5 days a week in the textile shop at the MRRC. Dr Nielssen assessed the Prisoner as of normal intelligence and opined that he had relatively good prospects of rehabilitation.
There is nothing to suggest any use of illegal drugs and, despite the events of 4 February 2014, nothing to suggest that his use of alcohol is out of the ordinary for young males or likely to be a problem in the future..
His criminal record that was tendered consists of one conviction for driving whilst his licence was suspended although contains no details of why that suspension was imposed. Given the nature of the offence for which he is to be sentenced, I regard that record as of no significant relevance. He has not been the subject of any disciplinary action in prison.
Tendered during the sentencing hearing was a letter the Prisoner wrote addressed to me. In the letter the Prisoner acknowledges, "This is all my fault" and in its terms the letter speaks eloquently of his remorse. In the letter the Prisoner remarked that he had promised to the deceased's family that he would do whatever it took to look after them and regard that as a responsibility for the rest of his life.
In March 2014 the Prisoner had also written to Elva and the deceased's mother. It is not necessary that I set out all of the detail in these letters but in the letter to the mother the Prisoner records that she had treated him like a son and that he had treated her like a mother in his heart, being mature and obedient. He remarked that his offence deserved death a thousand times but pleaded for forgiveness.
The self-interest which Prisoners awaiting sentence have in assertions of remorse and of recognition of their offending means that letters and other statements to the sentencing judge need to be looked at very sceptically. Similar considerations often apply to letters to victims but in this case I am satisfied that the feelings expressed are genuine and that the Prisoner is very remorseful for stabbing and killing his friend. Whether he will look after the deceased's family for the rest of his life, I am unable to determine but I accept that he is genuine in his current feelings.
Against that background I turn to the question of the sentence that should be imposed. Pursuant to s 24 of the Crimes Act 1900, the crime of manslaughter is punishable by imprisonment for up to 25 years.
The purposes for which a court may impose a sentence are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 and are:-
1. to ensure that the offender is adequately punished for the offence,
2. to prevent crime by deterring the offender and other persons from committing similar offences,
3. to protect the community from the offender,
4. to promote the rehabilitation of the offender,
5. to make the offender accountable for his or her actions,
6. to denounce the conduct of the offender,
7. to recognise the harm done to the victim of the crime and the community.
A number of these are of no or only marginal relevance in the circumstances of this case. Having regard to his history, the circumstances of his offence and its consequences to him, I am persuaded there is no significant need to imprison the Prisoner to deter him from committing similar offences or to protect the community from him. Nor am I persuaded that a longer period in custody than the Prisoner has already endured is likely to promote his rehabilitation.
However the other sub-paragraphs are relevant. I am satisfied that no punishment other than a period of imprisonment is appropriate. The difficulty is to determine what should be the period.
Of course, since the abolition of capital punishment no sentence the court can impose can equal the loss suffered by the deceased. The principles of sentencing no longer demand an eye for an eye or that, because one life has been lost, another should be ruined. And while the authorities are clear that a sentence for an offence such as this must provide a real demonstration that society cannot tolerate criminal activity amounting, as in the present case, to the taking of a life and will impose a serious disincentive on those who offend it is proper to recognise that the Prisoner's offence is one of human frailty rather than deliberate premeditated criminality.
It is also proper to recognise that the Prisoner is not a hardened criminal to whom the rigours - and they are real - of incarceration may mean little. It should be recognised also that the effect of incarceration for years do not cease immediately on release. The time the Prisoner must spend in prison is time he could have spent advancing his career, commencing a family or saving for a home. On the other hand, and this is one of the factors that makes sentencing in this area difficult, the deceased has forever been deprived of these opportunities.
It has been recognised for centuries that the maximum penalty laid down by Parliament is to be imposed only in circumstances that can be regarded as "worst cases". Against that very imprecise criterion I am required to evaluate the offending and offender in this case.
The courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life and that is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case.
In R v Forbes (2005) 160 A Crim R 1 at [133] - [134] the Chief Justice also observed 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". The reference to contexts was to the fact that manslaughter can be committed in various ways, including response to provocation and excessive, perhaps very excessive, conduct in self-defence. Reference to prior decisions is of limited benefit.
In this case I was referred by the Crown and Defence counsel to some dozen decisions where sentences were imposed for manslaughter by an unlawful and dangerous act. I do not think there is anything to be gained by recording a detailed analysis of them here but I have read them all together with some previous decisions of my own, R v See [2001] NSWSC 776, R v Smith [2008] NSWSC 201 and R v Dyer [2014] NSWSC 1809. The sentences imposed varied between imprisonment for 3 years with a non-parole period of 16 months to imprisonment for 13 years with a non-parole period of 7 years.
Clearly the Prisoner's conduct was much less serious or criminal than in many of those cases and his offending was not as occurred in others, exacerbated by being on conditional liberty at the time or by being but one instance in a long record of violent offending. Equally I do not regard his offence as at the bottom of the scale. It did involve some of the aggravating and mitigating factors listed in s 21A of the Crimes (Sentencing Procedure) Act 1999 but having regard to the basic circumstance of his offence I do not regard the aggravating factors as calling for an increase in the sentence otherwise appropriate. Nor do I regard it as necessary to list all of the mitigating factors that exist. I record however that I do not regard the prisoner as having been, in any relevant sense, provoked by the deceased.
I am satisfied the Prisoner is, apart from the subject offence, of good character, is remorseful, has good prospects of rehabilitation and that there is no likelihood of him re-offending. I make it clear that, having regard to the Crimes and other Legislation Amendment (Assault and Intoxication) Act 2014 I do not regard the Prisoner's intoxication at the time of his offence as a mitigating factor.
I was also asked to find special circumstances upon the grounds of the offender's youth, that this is his first time in prison and, his good prospects of rehabilitation. His limited command of English may also make his time in prison more difficult. In this connection reliance was also placed on the Prisoner's offer to plead but I do not regard that as relevant to this topic. That said, it does seem to me to be a case where I should find special circumstances.
In my view an appropriate starting point in the determination of the sentence to be imposed is 8 years. Discounted by the 17.5% to which I have referred the result is a little over 6½ years. It remains to give operation to my finding of special circumstances.
Mr Wang I sentence you to imprisonment for a non-parole period of 4 years and 6 months commencing on 14 February 2014 together with a balance of term of 2 years. I record as the first day upon which it appears to me you will be eligible for parole 14 August 2018.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 11 March 2016