R v Yeo [2003] NSWSC 315 | Case summary

1 HIS HONOUR: On 15 May 2002, after a trial presided over by me, a jury found the prisoner Keng Hwee Yeo, usually referred to in the trial as Kathy Yeo, guilty of having murdered Christopher Mark Dorrian between about 5 June 1997 and about 10 June 1997. 2 The trial in which the jury returned a verdict of guilty against Ms Yeo was a joint trial of Ms Yeo and another accused Raymond Galea, who was charged with being an accessory after the fact to the murder of Mr Dorrian by Ms Yeo. When the jury returned its verdict of guilty against Ms Yeo, it had not arrived at any verdict in the trial of the charge against Mr Galea. Subsequently on 17 May 2002 I discharged the jury in the trial of Mr Galea, the jury having been unable to reach a verdict and not being likely to be able to agree on any verdict. 3 On 15 May the commencement of the proceedings for the sentencing of Ms Yeo was naturally deferred until after the outcome of the trial of the alleged co-offender, Mr Galea, would be known. When the jury was discharged on 17 May following the jury's inability to agree on a verdict in the trial of the charge against Mr Galea, it was not possible to immediately commence the proceedings for the sentencing of Ms Yeo and the proceedings for the sentencing of Ms Yeo were stood over to a date to be fixed. Regrettably, a delay of several months has now occurred in the sentencing of Ms Yeo. The principal cause of the delay was that, immediately after the completion of the Yeo/Galea trial, I was required to conduct another criminal trial which was particularly demanding and which lasted for a number of months. Other contributing causes to the delay were that counsel had other conflicting commitments. 4 The trial of Ms Yeo and Mr Galea over which I presided was not the first trial of Ms Yeo and Mr Galea for alleged offences relating to the death of Mr Dorrian. In a joint trial held between November 1999 and January 2000 Ms Yeo and Mr Galea were each tried before his Honour Grove J and a jury on charges of murdering Mr Dorrian or alternatively being an accessory after the fact to the murder of Mr Dorrian by the other accused. On 4 January 2000 the jury returned a verdict of guilty of murder in the trial of Ms Yeo and in the trial of Mr Galea returned a verdict of not guilty of murder but a verdict of guilty of being an accessory after the fact to the murder of Mr Dorrian by Ms Yeo. Grove J sentenced Ms Yeo to a term of imprisonment for twenty-four years with a non-parole period of eighteen years. His Honour also passed sentence on Mr Galea. 5 Both Ms Yeo and Mr Galea appealed against their convictions at the first trial. The Court of Criminal Appeal in judgments delivered on 17 July 2001 and 20 July 2001 allowed both appeals against conviction and ordered new trials. As the jury at the first trial had acquitted Mr Galea on the charge of murder, a new trial of Mr Galea would be limited to a trial of the charge of being an accessory after the fact to murder. 6 Ms Yeo's appeal against conviction was allowed on the ground that directions given by the trial judge at the trial about Ms Yeo's failure to give evidence at the trial contravened principles stated by the High Court in the cases of RPS v The Queen and Azzopardi v The Queen. Neither of those cases had been decided when the first trial was held and his Honour gave his directions. 7 The proceedings for the sentencing of Ms Yeo which were conducted before me earlier today were brief. Ms Yeo had of course been found guilty after a trial at which I had presided and I had had the opportunity of hearing all of the evidence adduced in the trial. The Crown Prosecutor supplied information about the periods Ms Yeo has been in custody and the periods during which she has been on bail. The only evidence tendered on behalf of the prisoner was a bundle of references. 8 As Ms Yeo did not give evidence either in the trial or in the proceedings on sentence and had not given evidence at the first trial, either in the trial proper or in the proceedings on sentence after the first trial, there is a complete absence of any evidence given in the courtroom by her. However, on 1 July 1997 she had participated in a lengthy electronically recorded interview, the tape recording of which became exhibit W at the trial conducted before me. There was also evidence in the trial of a conversation between Ms Yeo and police officers at a police station on the evening of Monday 23 June 1997. 9 At the trial the Crown case against Ms Yeo that she had murdered Mr Dorrian was almost entirely circumstantial. There was no direct evidence from any witness that the witness had observed Ms Yeo doing any act connected with the killing of Mr Dorrian. In the conversation on 23 June 1997 and in the interview of 1 July 1997 Ms Yeo did not make any admission that she had killed Mr Dorrian, although at the trial the Crown sought to make some limited use of things said by her in either the conversation or the interview. 10 Given the state of the evidence, there are limits to the findings of fact which it is possible for me to make to the requisite standard of proof. However, I am satisfied to the requisite standard that the following facts relating to the offence of murder committed by Ms Yeo are established by evidence given at the trial or must be taken to have been established by the jury's verdict of guilty. I will confine my statement of the facts of the offence to what appear to me to be some of the more salient facts. 11 Ms Yeo worked as a qualified nurse in a drug and alcohol rehabilitation unit at the Rozelle Hospital, known as the Palm Court Rehabilitation Unit. She was living in a defacto relationship with Mr Galea, in Mr Galea's house at 127 Petersham Road Marrickville. Mr Galea was deeply interested in firearms and did some work for the Shooter's Party. He kept a collection of firearms in a safe at his home, including in particular a 22 calibre high standard citation pistol. Ms Yeo was also interested in firearms. She held a pistol shooter's licence and was a competent pistol shooter. She knew where a key to the safe containing the firearms was kept and thus she was in a position to gain access to the firearms in the safe. 12 On 17 April 1997 Mr Dorrian who had an addiction to alcohol was admitted as a client, that is as a patient, to the Palm Court Rehabilitation Unit. He remained a client in the unit until 6 May when he was discharged. While Mr Dorrian was a client in the unit Ms Yeo became intensely sexually infatuated with him. Mr Dorrian was sexually attracted to Ms Yeo but to a much lesser degree. 13 After Mr Dorrian was discharged from the Unit, Ms Yeo and Mr Dorrian continued to see each other. Ms Yeo and Mr Dorrian decided to live together. On 23 May 1997 Ms Yeo left Mr Galea, moving out of his house and moving temporarily into the nurse's quarters at the Rozelle Hospital. On 27 May Ms Yeo signed a lease for the lease of a unit, Unit 17/31-33 Maida Street Lilyfield, and on or about 30 May Ms Yeo and Mr Dorrian moved into the unit at Lilyfield. On 31 May Mr Dorrian and Ms Yeo visited Mr Dorrian's mother who lived on the Central Coast for the purpose of collecting some of his property which had been stored at his mother's house. 14 After his discharge from the Rehabilitation Unit Mr Dorrian had obtained part time employment at a restaurant in Balmain. Shortly after midnight on Wednesday 4 June 1997 Mr Dorrian returned to the home unit after work in an intoxicated state. There was an argument between Mr Dorrian and Ms Yeo, in the course of which Mr Dorrian verbally abused Ms Yeo and physically struck her. Ms Yeo telephoned Mr Galea, who picked her up from the unit and took her back to his home for the rest of the night. 15 On Thursday 5 June 1997 Mr Dorrian went to work at the restaurant. A chef at the restaurant who was a witness at the trial gave evidence that he saw Mr Dorrian at the restaurant towards the end of a shift which ended at 3 o'clock in the afternoon. There is no direct evidence about what happened subsequently to Mr Dorrian, apart from answers given by Ms Yeo or Mr Galea when questioned by police and, given the jury's verdict of guilty against Ms Yeo, I do not consider that I can place any reliance on their answers. On Thursday 5 June Ms Yeo returned to the unit at Lilyfield. However, after she returned Mr Dorrian told her that so far as he was concerned the relationship between them was finished. 16 I am satisfied to the requisite standard that at some time between the afternoon of 5 June and the morning of Sunday 8 June and probably on Friday 6 June, Ms Yeo opened the safe at 127 Petersham Road Marrickville in which the firearms were kept, took out the .22 calibre pistol, went to the unit at Lilyfield and killed Mr Dorrian by shooting him in the unit with the pistol. After Mr Dorrian had been killed his head was severed from his body and the severed head and the trunk of his body, which may have been further dismembered, were removed from the unit and disposed of and attempts were made to clean the unit, so as to remove all traces of the commission of the murder and the cutting up of the body. I am satisfied beyond reasonable doubt that Ms Yeo participated in the severing of the head, the disposal of the parts of the body and the cleaning of the unit. 17 It was part of the Crown case against Mr Galea on the charge of being an accessory after the fact, that he had assisted Ms Yeo in the severing of the head, the disposal of the parts of the body and the cleaning of the unit. As the jury were unable to agree on a verdict in the trial of Mr Galea and it is likely that Mr Galea will be tried again on the charge of being an accessory after the fact and because I do not consider that it is strictly necessary for the purpose of sentencing Ms Yeo, I do not consider that I should attempt to make any finding about whether Mr Galea assisted Ms Yeo as alleged by the Crown. 18 On Saturday 21 June 1997 Mr Dorrian's severed head was found on a bank of the Cook's River. Near the severed head were found a bag and a jacket containing various items, including a document identifying Mr Dorrian. After the head was found, a police investigation into the death of Mr Dorrian commenced. No other part of Mr Dorrian's body has ever been found. 19 A forensic pathologist who on the night of 21 June 1997 performed a post mortem examination of the severed head found three bullets in the head. The pathologist found entry wounds caused by two of the bullets but no entry wound for the third bullet, which indicated that the bullet had entered some other part of Mr Dorrian's body while his head was still joined to the trunk of his body. 20 After Mr Dorrian's head had been identified, police spoke to his mother who mentioned the visit to her home by Mr Dorrian and Ms Yeo on 30 May. On the evening of Monday 23 June Ms Yeo and Mr Galea attended at the Rocks Police Station and were questioned by police. Later in the night the police went to the house at 127 Petersham Road Marrickville and, with Mr Galea's consent, took possession of Mr Galea's firearms including the .22 calibre pistol. Ballistics testing of the .22 calibre pistol revealed that the three bullets found in Mr Dorrian's head had been fired by that pistol. An examination by police of the unit at Lilyfield revealed traces of blood stains, cuts and indentations in the floor coverings consistent with having been caused by some cutting instrument and a button similar to a button found in the bag which had been found on the bank of the Cook's River near the severed head. 21 On the evidence, including particularly the ballistics evidence, there was no realistic chance that Mr Dorrian could have been shot by anyone other than Ms Yeo or Mr Galea. There was no realistic chance that any intruder had entered the house at Marrickville, found the key to the safe, opened the safe, removed the pistol, used the pistol to shoot Mr Dorrian, re-entered the house at Marrickville and returned the pistol to the gun safe, all without leaving any trace of his activities. 22 Evidence tending to exclude Mr Galea as having been the shooter included evidence that his reaction to Ms Yeo's leaving him had been suicidal rather than homicidal and, somewhat paradoxically, evidence of his attitude to firearms, including evidence of a principle of conduct observed by him that he would not do anything which might bring discredit on "the industry", that is the gun industry, and that using a gun to shoot someone would be calculated to bring discredit on the industry. It was also improbable that Mr Galea, if he had wanted to kill Mr Dorrian, would, given his knowledge of firearms, have used one of his own firearms to shoot Mr Dorrian and then have returned the murder weapon to his safe and then on the night of 23 June have consented to police taking the firearm for examination by the police. 23 Some of the more important objective facts of the offence committed by Ms Yeo include that she used a firearm to shoot the victim; the offence was, at least to some extent, premeditated, because before shooting Mr Dorrian she had to obtain the pistol from the safe at Mr Galea's house and take it to the unit; that she shot the victim three times; and that, given the sites of the bullet wounds, it is clear that she shot Mr Dorrian with the intention of killing him. 24 The motive for the crime was that her relationship with Mr Dorrian had broken down and she had been rejected by Mr Dorrian with whom she was infatuated. A secondary motive was that her association with Mr Dorrian had become the subject of an investigation by the nursing authorities, which threatened her career as a nurse. 25 Because Ms Yeo did not give evidence in the trial or in the proceedings on sentence and because only a little evidence was tendered on her behalf in the proceedings on sentence, there is very little material before me about her subjective circumstances. She is a young woman born on 16 March 1971 of Chinese extraction She is qualified as a nurse and had worked as a nurse in the Rehabilitation Unit. While on bail she worked as a customer service representative. She has a love of music. The persons who supplied the references testified to various good qualities which they asserted she has and which I accept that she has. After the commission of the offence she resumed cohabitation with Mr Galea but then separated from him. She has no other criminal convictions. 26 The sentence imposed by Grove J after the first trial, as noted by me earlier in these remarks, was a total sentence of twenty-four years with a non-parole period of eighteen years, to commence from 14 October 1999. Grove J selected this date for the commencement of the sentence because Ms Yeo had been continuously in custody from 17 December 1999 and had earlier been in custody from 23 July 1997, when she was arrested, to 26 September 1997, when she was released on bail. 27 In his submissions in the proceedings on sentence, the Crown Prosecutor submitted that I should apply the principle that: "Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a retrial than he or she received at the original trial." 28 Counsel cited R H McL v The Queen (2000) 203 CLR 452 especially at paragraph 72. 29 On the other hand, it was submitted by counsel for the Crown that the sentence imposed by Grove J was an appropriate sentence and that I should not impose any sentence which was effectively less than the sentence imposed by Grove J. 30 It was submitted by counsel for the Crown that it was open to me to take into account, and that I should take into account, the conduct by Ms Yeo after the victim had died, in participating in the severing of the body, the disposing of the parts of the body and the cleaning of the unit. 31 It was accepted by counsel for the Crown that in sentencing Ms Yeo I would have to give her credit for the time that she has spent in custody. 32 Counsel for Ms Yeo agreed that I should apply the principle or convention of sentencing referred to by the Crown Prosecutor and not impose any greater sentence than that imposed by Grove J. However, counsel for Ms Yeo submitted that I should impose a somewhat lesser sentence than that imposed by his Honour. 33 Counsel for Ms Yeo submitted that any acts by Ms Yeo in severing the head, in disposing of the parts of the body and in cleaning the unit in an attempt to remove evidence of the commission of the crime had occurred after the victim had died and were not elements or ingredients of the crime of which she had been found guilty and for which I was sentencing her, and should not be taken into account by me in assessing the seriousness of the crime. 34 Counsel also referred to favourable subjective circumstances of Ms Yeo, including her work history, the qualities deposed to by the referees and the unlikelihood of her re-offending. 35 I have found that Mr Dorrian was already dead, that is that the commission of the crime of murder had been completed, when Ms Yeo participated in the severing of Mr Dorrian's head, the disposal of the parts of his body and the cleaning of the unit. 36 Similar submissions to the submissions which have been put to me in these proceedings on sentence were also put to Grove J in the proceedings on sentence after the first trial. In his remarks on sentence Grove J said that the dismemberment of the body and the disposal of the parts of the victim's body, although not ingredients of the crime of murder, were "pertinent to the overall assessment of its seriousness". I agree with his Honour that this conduct by Ms Yeo, which I have found occurred, can be taken into account in assessing the seriousness of the offence committed by Ms Yeo. See the decision of the Victorian Court of Appeal in R v England (1999) 106 A Crim R 99 especially at 103 to 109. 37 In my opinion, while recognising that I have an independent sentencing discretion which I must exercise and that I should not simply adopt the sentence imposed by Grove J, nevertheless it would be appropriate for me to sentence Ms Yeo in accordance with counsel for the Crown's submissions. 38 It is worth quoting in full what McHugh, Gummow and Hayne JJ said in paragraph 72 of their joint judgment in R H McL v The Queen. Their Honours said: "Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a retrial than he or she received at the original trial. If the sentencing judge at the re-trial thinks that the original sentence was manifestly inadequate it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare, that is because such an increase may be perceived by the public and the accused as containing a retributive element imposed because the accused had successfully appealed against his or her earlier conviction or sentence. If the raising of the sentence after a successful appeal becomes common it might discourage appeals. Such a result would be contrary to the public interest, for an organised society has a vital interest in the proper administration of its criminal justice system. Rights of appeal are an important means of preventing the perpetuation of error in criminal trials". 39 In the same case Gleeson CJ and Gaudron and Callinan JJ in their joint judgment said at paragraph 23: "In the course of argument in this Court references were made not by counsel but by members of the Court to the decision in R v Gilmore in which Street CJ referred to a consideration which a judge re-sentencing after a second trial an offender who had earlier appealed successfully against the conviction at a first trial ought to take into account. In brief in the absence of countervailing considerations a sentence imposed following the first trial should be regarded as the upper limit of the sentence to be imposed following the second trial. Otherwise an offender will be seen to have been worse off as a result of having brought a successful appeal against a conviction. The weight to be given to that consideration depends of course upon the circumstances of the individual case." Kirby J in his separate judgment approved at par 142 what the Court of Appeal of Queensland had said in R v Petersen (1999) 2 Qd R 85 at 87, namely:- "[w]here an offender is to be re-sentenced following a successful appeal and re-trial, the second sentencing Judge should start with the proposition that the offender ought, in general, not receive a harsher sentence than that imposed after the first trial. If minded to depart from that approach, he or she should consider the powerful policy considerations outlined above. Only if the second sentencing judge concludes that the earlier sentence was outside the appropriate range, or the facts as they appear at the time of the re-sentence are significantly different from those upon which the first sentence was based, should he or she impose a heavier sentence". 40 In the present case I do not consider that the sentence imposed by Grove J was manifestly inadequate, or that the facts before me are significantly different or that there is any countervailing consideration such that I should impose a heavier sentence than was imposed by Grove J. On the other hand, I consider that the seriousness of the offence was such as to require the imposition of a sentence of the order imposed by Grove J. In reaching this conclusion I have taken into account general principles of sentencing and s 21A of the Crimes (Sentencing Procedure) Act. Like Grove J I do not consider that there are any special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act. 41 Ms Yeo has now spent the following periods in custody referable to this offence:

(3) From 15 May 2002 to the present. 42 It was agreed by counsel that these period of pre-sentence custody could properly be allowed for by my making the sentence I impose commence from 7 July 2000. 43 Ms Yeo, would you stand? For the crime of murdering Christopher Mark Dorrian I sentence you to imprisonment for twenty-four years to commence on 7 July 2000. I set a non-parole period of eighteen years, the earliest date on which you will be eligible for release on parole will be 7 July 2018. **********

R v Yeo

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