REGINA v PAK LUN CHAN

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL list

JUDGMENT 1 HIS HONOUR: The offender, Pak Lun Chan was indicted on 18 March 2002 on a charge that on 21 February 1999 at Marsfield in the State of New South Wales, he did murder Navid Ali Khan. To this charge he pleaded not guilty to murder but guilty of manslaughter. The Crown Prosecutor declined to accept the plea of guilty to manslaughter in full discharge of the indictment. 2 Following a jury trial which extended over nine hearing days including two days during which the jury deliberated, a verdict of guilty of murder was returned. The offender was duly convicted. He is for sentence to-day. 3 In order to determine the sentence to be imposed it is my duty to find the facts which gave rise to the offence. In doing so, the relevant standard is that of proof beyond reasonable doubt. 4 The standard of proof for matters in amelioration of sentence is, on the balance of probabilities. This, of course, was the standard of proof which the jury applied in considering the partial defence under s 23A of the Crimes Act 1900 which the offender raised. 5 Section 23A relevantly provides:- 23A(1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) …. (3) …. (4) …. (5) …. (6) …. (7) …. (8) …. 6 The facts relating to the murder of the victim Mr Navid Ali Khan by shooting, were not the subject of challenge. The events were captured on a number of video cameras, seven in all, located in and around the Shell Service Station and shop located near Macquarie University on Epping Road at Marsfield. They may be briefly summarised as follows: 7 On the evening of 20 February 1999 the offender and two male friends were playing card games and drinking wine and beer. The precise amount of alcohol consumed is not clear from the available evidence, however, the effect of alcohol upon the offender is not relied upon by way of defence or mitigation of sentence. 8 In the early hours of 21 February 1999, one of the two male friends went to bed. The other, a Mr Leung and the offender decided to purchase something to eat and to this end, at about 4.30 am, went to the Shell Service Station and shop where the victim Mr Khan, who was a post graduate student in computer science at Macquarie University, was employed as the console operator. 9 The offender and Mr Leung entered the shop and selected some items of food from a cabinet. A short conversation took place between Mr Leung and the victim Mr Khan concerning the location of the microwave oven used to heat the food. A short time later the two men returned to the console area where the food items were paid for by the offender. 10 Mr Khan enquired of the two men whether they were "… from about here". This casual enquiry brought an acrimonious response from Mr Leung which in turn engendered a like response from Mr Khan. Mr Leung moved away. 11 The offender, who had not engaged in the verbal exchange, placed his food item on the counter, paid for the items of food, placed money back in his wallet and put the wallet away. 12 The offender then picked up the food item momentarily and replaced it on the counter. He then produced a .32 calibre automatic pistol in his right hand and using his left hand activated the slide on the top of the pistol which action loaded and cocked it. 13 The offender then lowered his left hand, extended his right arm towards Mr Khan and discharged the pistol into the front of Mr Khan's chest penetrating lung and heart. Having recovered his food item, the offender decamped. 14 He was arrested in Melbourne some two months later whilst attempting to board an international flight. 15 It is important to bear in mind the precise events captured on video camera at the time of the shooting for reasons to which I shall, in a moment, make reference. 16 The defence case under s 23A(1)(a) was confined to a claim that at the time of the shooting, the offender's capacity to control himself was substantially impaired by an abnormality of mind arising from an underlying condition. As to sub s (1)(b), it was, of course alleged that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. 17 On the issue of the alleged substantial impairment of the capacity of the offender to control himself as a result of an abnormality of mind, evidence was led of symptoms exhibited by him over a number of years, consistent, if accepted, with him suffering from three psychiatric conditions namely Tourette's Syndrome, Obsessive Compulsive Disorder and a psychosis in the nature of a schizophrenia type illness which is identified in the American Manual DSM 1V as being a "psychotic disorder not otherwise specified". 18 The expert medical evidence adduced at the trial was given by Dr Milton and Dr Nielssen called by the prosecution and Dr Cullen and Dr Lucas, called by the defence. 19 Three of these experts expressed the view that the offender, at the time of the offence was suffering from an abnormality of mind arising from an underlying condition, such that his capacity to control himself was substantially impaired. 20 Dr Milton alone took a contrary view. He was of the opinion that the offender exhibited symptoms or alternatively had a history, if accepted, consistent with the psychiatric conditions relied upon but that the degree of these symptoms exhibited by the offender was not such as to amount to a positive diagnosis of any of the three conditions. 21 Whether the jury rejected the defence of substantial impairment by abnormality of mind, or alternatively accepted the first limb of the defence and thereafter determined that the degree of impairment was not so substantial as to warrant liability for murder being reduced to manslaughter, we are not to know. 22 If the latter be the course the jury followed, the evidence recorded on the video tape of the events attending the shooting of Mr Khan, to which I have referred, makes plain the sequence of deliberate steps taken by the offender, immediately prior to as well as after the discharge of the pistol in what was a wholly unjustified, senseless and completely callous taking of human life. There was accordingly, abundant evidence upon which the jury could rely in concluding that the second limb of the defence, that is to say sub s(1) (b) was not made out. 23 Nevertheless, it is urged upon me by counsel for the offender, first, that this was a motiveless crime consistent with the offender's abnormality of mind and second that a proper interpretation of s 23A leaves open to the court a finding that the offender's capacity to control himself was substantially impaired by an abnormality of mind arising from an underlying condition, as prescribed by sub s 23A(1)(a) but was an impairment not so substantial as to warrant liability for murder being reduced to manslaughter, such a finding not being inconsistent with the jury's verdict. 24 Both the fact of a crime without motive and the findings suggested in regard to 23A, so the submission runs, ameliorate the offender's degree of criminality. 25 I reject the submission that this was a crime entirely without motive. 26 The offender was, at the time, a young man who is described in evidence, which I accept, as being by nature somewhat aggressive and at times given to acting in a reckless and impulsive manner. Several incidents of such conduct are recorded in his past. At least one such incident involved the throwing of a heavy chain from a multi-storied building, showing scant if any regard for the welfare of others. 27 At the time of the offence he had armed himself with a loaded pistol; he had consumed alcohol to a moderate degree of intoxication which had a disinhibiting influence; his friend Mr Leung had engendered an exchange of verbal abuse with Mr Khan in which Mr Leung had been referred to as a "mother-fucker". 28 This verbal altercation triggered the offender's action. It may have been a hair trigger, but in the offender it was all that was needed to precipitate a tragic outcome motivated by retaliation and revenge. 29 I accept that on the probabilities, at the time of the offence the offender's capacity to control himself was substantially impaired by an abnormality of mind arising from an underlying condition in the nature of a psychosis described in DSM1V as a "psychiatric disorder not otherwise specified" and that within the amalgam he also exhibited symptoms of Tourette's Syndrome and Obsessive Compulsive Disorder. 30 I am satisfied beyond reasonable doubt that his impairment is not so substantial as to warrant his liability for murder being reduced to manslaughter. 31 The objective seriousness of the crime of murder places it at the head of the criminal calendar. The deliberate taking of the life of another is a crime of the utmost gravity, abhorrent to our community. It attracts a maximum penalty of life imprisonment. In this State a sentence of life imprisonment, since the enactment of the Sentencing Act 1989 has meant a term of imprisonment for the term of the offender's natural life. Such a sentence is necessarily to be reserved for the worst class of case. 32 Notwithstanding the seriousness of this offence the Crown does not submit that it falls within the worst class of case. I accept that approach to be justified in the circumstances of this case. The principles to be applied in determining the sentence to be imposed call for consideration of the objective circumstances of the offence; the subjective circumstances of the offender and the purposes of criminal punishment. 33 In Veen - v - The Queen (No.2) (1987 - 1988) 164 CLR 456 at 476, in the joint judgment of the majority of the Court, Mason CJ, Brennan, Dawson and Toohey JJ, their Honours said: - "The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case". 34 The subjective circumstances of the offender include the following. He was aged nineteen years at the time of the offence and is presently aged twenty-two years. 35 The offender is a native of Hong Kong where he was brought up as the only child of his parents. He experienced some learning difficulties and came to Australia on a student visa. Although he had not attained matriculation, the offender was admitted to a business studies course which he was undertaking at the relevant time. 36 The offender's psychiatric condition was undiagnosed prior to this incarceration. Notwithstanding the symptoms and behaviour exhibited by the offender prior to coming to Australia, no attempt had been made to seek medical assistance or diagnosis. This may well have been due to cultural considerations which the evidence suggests stigmatise psychiatric illness in any shape or form. 37 The treatment by way of medication which was administered to the offender whilst in custody has been effective and the need to continue with medication is well recognised by the offender and by his parents who reside in Hong Kong and who have furnished a statement (exhibit 3 on sentence) in which they express support for the offender and recognise the need for his continued treatment which they undertake to supervise. 38 The offender's mother, who resides in Hong Kong, has visited him several times since he has been in custody. 39 I accept the view expressed by Dr Lucas in his report of 4 April 2002 (exhibit 1 on sentence) that in these circumstances the offender does not present a high risk of committing acts of serious violence in the future. 40 Importantly the offender has no history of criminal activity of any kind and is a first offender. I consider his prospects of reform and rehabilitation to be good. 41 The issue of personal and general deterrence is to be considered in the light of the offender's mental state. In the case of Ninus Scognamiglio (1991) 56 A Crim R 81 at 85, Grove J with whom Clarke JA and Newman J agreed said:- "That mental handicap, short of providing a defence on the ground of mental illness, is a basis for reduction of sentence has been long recognised: see, eg Smith (1985) 75 WN (NSW) 198. Even if the offender is suffering from a condition which predicates further violence, the potential loss of reduced sentence on that account does not justify increase either for personal deterrence of the offender or general deterrence: Kocan [1966] 2 NSWR 565. The present is not a case where future misconduct is specifically feared. The different diagnoses provoked suggestion of various courses of treatment but as I read the material all suggest that stability should be achieved and maintained. In Anderson [1981] VR 155; (1980) 2 A Crim R 379, where I note in passing that the mental illness of the accused could not be affirmatively diagnosed as either paranoid psychosis or paranoid schizophrenia although illness was accepted, Young CJ of Victoria endorsed remarks of his predecessor in an unreported decision Mooney ), namely "In sentencing generally, it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other. But in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor which should often be given very little weight … general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others." 42 In adopting with due respect the dictum which he had quoted and as set out above, Grove J nevertheless went on to say: "The submission on behalf of the appellant, developed to suggest that the concept (of deterrence) is entirely inapplicable goes too far." 43 I would respectfully follow the authorities cited in Scognamiglio by Grove J and what was said by his Honour as to the concept of deterrence not being entirely inapplicable, as having application to a case under s 23A, such as the present, so as to reduce the sentence I would otherwise impose and also to have significance in determining special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. 44 On the question of personal deterrence I am satisfied that the presence of the offender's undiagnosed mental disability at the time of the offence and his present insight into his condition and the need for continuing treatment, as remarked upon by Dr Lucas, are ameliorating features in regard to sentence. 45 One further aspect of relevance is the question of delay. The offender was arrested and has remained in custody since 19 April 1999. 46 The trial of the offender has been fixed for hearing on four occasions, the first of which was August 2000. The reason for vacation of that hearing date is not clear. The second hearing date, in March 2001, was vacated at the behest of the offender. 47 On the third occasion, the trial concluded with the jury unable to agree upon a verdict. The fourth hearing date resulted in the trial which concluded on 10 April 2002 when the offender was convicted. 48 I do not attribute blame for the delays which have taken place but recognise that for over three years the offender has not known his fate and I take that into account as an ameliorating factor on sentence. 49 I find there to be special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 so as to warrant variation of the statutory ratio to increase the parole period. 50 In so deciding I rely upon the offender's youthful age, his psychiatric disability, his rehabilitation prospects and progress to date and his family support. 51 I set to one side the fact that the offender upon release to parole will return to Hong Kong due to his non-resident status. In my view any benefit which our system of justice would ordinarily afford to a resident should not be denied to a person lacking such status. 52 PAK LUN CHAN for the murder of Navid Ali Khan of which you have been found guilty and have been convicted, you are sentenced to fourteen years imprisonment which commenced on 19 April 1999 and will expire on 18 April 2013. There will be a non parole period of nine years commencing 19 April 1999 and expiring on 18 April 2008. 53 You will be eligible for parole on 18 April 2008. **********

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