REGINA v. LI [2000] NSWSC 1088

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: The offender, Bibiana Chi Li, has pleaded guilty before me to the manslaughter of her much loved child, Timothy Tien Li. The offence was committed in circumstances of the greatest tragedy for Mrs. Li, her family, and the community. 2 I have received the most extensive assistance by way of psychiatric reports from forensic psychiatrists and treating psychiatrists in respect of Mrs. Li's condition then and now. I am satisfied that she was at all times a caring and devoted mother, who killed her child whilst so severely depressed as to verge upon being insane. She killed her child so that she would not leave him behind when she herself died. It was her intent to commit suicide. 3 Her illness, endogenous depression, severely impaired her ability to reason. 4 It is not necessary in these remarks to explore the circumstances of her family life which caused her to develop this abhorrent reaction. She is not to blame for becoming ill, nor is her family to blame that she did become ill, nor any member of it. But it is incumbent on me in consequence of that illness now to pass sentence upon her for having killed her child. 5 In such a circumstance one starts with the proposition that one is sentencing for the felonious taking of human life, albeit that the circumstances in which persons come forward for sentence for manslaughter are so varied, and the degree of culpability so wide, that it is not possible to define any particular tariff or range of sentences, or to compare one case with another. Manslaughter has been described as the most protean of crimes, and as throwing up the greatest variety of circumstances affecting culpability where, as here, the killing was a result of a deliberate and willed act performed with intent to kill, but performed whilst the offender was so substantially affected by a mental illness as to have little responsibility. The sentencing problem is stark. 6 The reduction in the capacity for self-control, whilst it may not excuse the act, requires close attention to be given to that sense of moral outrage the community would properly attribute to an act performed in such circumstances. Even where there has been a severe degree of mental impairment, sentences of custodial imprisonment have been imposed. 7 The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system, and the community is entitled to have the conduct denounced by a sentence appropriate to the circumstances (see Regina v. MacDonald (Court of Criminal Appeal, unreported 12 December 1995)). However, where the circumstance of the crime are, as here, so attended by tragedy, in my view the right thinking members of the community would require a humanitarian and compassionate approach, even though sympathy for the offender must be evaluated with caution along with all the other demands of criminal justice (see the Queen v. Hill (1981) 3 A. Crim. R. 397 per Street, CJ. 402) in the context of a deliberate killing occurring under provocation. 8 Where, as here, the circumstances so excite sympathy and compassion, consideration must be given with care to the examination of the basis for which an exercise of mercy may be extended. In the Queen v. Kane (1974) VR 759, Gowen, J. said:- "Justice and humanity journey together. Cases frequently occur where a court is justified in adopting a course which may bear less heavily upon an accused than if he were to receive what is rather harshly expressed as being his 'just deserts', but mercy must be exercised by the considerations which are supported by the evidence, and which make an appeal not only for sympathy but also to well balanced judgment. If a court permits sympathy to preclude it from attaching weight to the other well recognised elements in punishment, it has failed to discharge its duty. It is cool reason not passion or generosity that must characterise sentence." 9 Similar considerations were enunciated by Street, CJ. in the Queen v. Rushby (1977) 1 NSWLR 594. 10 Particular and general deterrent must be considered, but considered in the light of the evidence. Having regard to the findings that I have made based on the written material provided to me, including the psychiatric reports, including the oral evidence, particularly that of Dr. Nielssen, I am of the view that having regard to such decisions as Regina v. Scognamiglio (1991) 56 A. Crim. R. 81, and Regina v. Engert (1995) 84 A. Crim. R. 67, there is little room for personal or general deterrent in this case. 11 It was submitted on the Crown's behalf that such room as there was should call for a sentence of actual custody perhaps to be suspended in order to deter others, so afflicted, from failing to obtain treatment or relief from that affliction, and thus to avoid the breach of trust involved in a parent killing their child. Whatever value there may be for such a submission in a case in which some real ability to control actions and to refrain from committing the crime, in my view, the evidence here establishes that there was although some very little, such ability on this offender's part. So that I consider that having regard to the totality of the material, this offender would not make a good example to others for that purpose. And the evidence clearly establishes from her friends, and from the circumstances of the crime itself, that she is a person who, as Dr. Nielssen put it, committed this crime from her unique state of mind at the time and herself needs no further deterrent. 12 She needs continuing medication, the support of her church, the support of her community; they have all come today and given evidence of their willingness to undertake that support. 13 The Crown has submitted the appropriate course would be to pass a sentence of imprisonment suspended for two years, that being the maximum provided by the present legislation, rather than to impose a recognizance deferring sentence upon terms of continued supervision. That term might well be for a period longer than provided for the suspended sentence, and that sentencing measure might well expose the offender to being brought back before the court and dealt with in respect of this crime and thus to possible imprisonment longer than would otherwise be the case. 14 I do not accept the Crown's submission that supervision for only two years would be entirely appropriate. On the evidence from the psychiatrists, and particularly the treating psychiatrists, it appears to me that this lady in her life time of grief which will follow on from these events, and in her vulnerability, particularly as a consequence of the family break-up that has ensued as a result of the offence, will remain exposed to the prospect of self-harm and the possibility of falling into a state of propound depression if untreated for a considerable time in the future. 15 However, the mere fact that she might require such treatment and assistance is not a matter, notwithstanding the peculiarities of the legislation, which should mitigate against a sentence of imprisonment in itself. But, in my view, a sentence of full-time imprisonment would not accord with the moral sense of the community and would not accord with the personal circumstances of the offender in the context of this case. 16 There is no basis for future dangerousness in the sense of possible criminal behaviour. There is little basis for general deterrent in terms of denunciation. The general deterrent requirement of sentencing may be met in the context that this woman has with the contrition associated with her realisation of the crime she has committed, pleaded guilty and evidenced her contrition. For this she will receive full credit, both for contrition and for plea. Her conduct is denounced by her plea, by the court, in convicting her, and by the sentence which I will now pass. She realises what she has done and its appalling consequences. 17 Mrs. Li, in accordance with s.9 of the Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment on you, I shall make an order directing you to enter into a good behaviour bond for a term of five years. The terms that shall be contained in that bond will include a term that you be of good behaviour for the term of the bond. 18 Mrs. Li, that good behaviour bond will contain a condition that you appear before this court if called on to do so at any time during the term of the bond, that you inform the registrar of this court of any change in your residential address, that you accept the supervision of the Probation and Parole Service and obey any reasonable direction of the supervising officer of that service as to your medical treatment and medication; that supervision be afforded to you for the whole of the term of that recognizance or such shorter period as the supervising officer may consider necessary not less than three years, and that you report to the Probation and Parole Service office at Chatswood within 14 days for the purpose of supervision under that recognizance. 19 I take this course having regard to the reasons I gave in the matter of Mary Gwen Kennedy of 30 June 1998, and having regard to the reasons that I have already given. 20 Mrs. Li, I must explain to you pursuant to the provisions of the Act the effect of the order that I have made. You must meet your obligations to comply with the conditions of that bond or you are liable to be brought back before this court and sentenced. In the event that you are suspected to be breaching the bond, or likely to breach the bond, this court, or any other court of like jurisdiction may call on you to appear, and if you do not, order a warrant for your arrest. In the event that the court is satisfied of a failure, as well as having the option of re-sentencing, the court may decide to take no action, vary the condition of the bond, or impose further conditions or revoke the bond, unless of course such a breach is trivial, or there are good reasons for excusing it. Action may even be taken in that respect after the expiry of the term of the bond but only in respect of matters that occurred during its term. In the event that it is revoked, then all sentencing options become available as a sentence. 21 This has been, as I remarked at the commencement of these reasons, an appalling tragedy. It is not in the interests of the community that the consequences of the course the court has had to take should exacerbate the tragedy any further. To sentence you to full-time imprisonment would, in my view, have had that course. I do not expect, and indeed the evidence is clear, that I should not expect that you will ever be brought before a court again.

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