The Queen v Daing [2015] VSC 440

2 Ms Sikai was 41 years old when she died. She was born in Papua New Guinea and moved to Australia in 1997 when she was 25. She was the natural mother of a child born when she was 19 and who, ultimately, was raised by her aunt. Ms Sikai worked for a time in Cairns as a receptionist and in 2008 moved to Melbourne, again finding work as a receptionist. Ms Sikai assumed the role of primary carer for her brother's children for two of every three weeks. Thankfully, they were not present when Ms Sikai was killed by you. In March 2014, Ms Sikai was living in an apartment in Hopkins Street, West Footscray. She shared this accommodation with Linh Ngoc Nguyen and his girlfriend, Sirinapa Yimklan.

3 You were born in Sudan and moved to Australia in 2006. I shall set out more of your background in due course. You met Ms Sikai in late 2011 and shortly thereafter commenced a relationship. The material I have read suggests that initially this was a happy, harmonious relationship, but after a time you became a jealous and controlling partner. The statements of Mercy Waiya, Elizabeth Epona (the deceased's mother) and Andrew Wilson set out various incidents that illustrate this. Mr Wilson, who, for a time, lived with you and Maryanne, heard acrimonious exchanges between you and observed property damage that Maryanne asserted was caused by you. He described you coming and going as the relationship became more volatile. Maryanne complained to Mr Wilson that you had hit her and it appears she took out, at least an interim intervention order against you. Later, and after more coming and going, Mr Wilson described hearing a loud argument and subsequently seeing her face to be swollen on one side. In early 2013, Mr Wilson heard scuffling and arguing coming from the room you shared with Maryanne. He saw you punch Maryanne flush to the head, causing her to fall down. "It sounded like a forceful full impact punch. Maryanne screamed out in pain when she got hit". Mr Wilson also described a threat made by you to kill Maryanne. In June 2013, Mr Wilson left the Hopkins Street apartment.

4 For some time from about mid-2013, you left the apartment and discontinued your relationship with Maryanne. She commenced a relationship with a man called Peter Miazga. They became engaged, although this arrangement did not last long. During their time together, Mr Miazga received various text messages from you, and you continued to call Maryanne.

5 You recommenced your relationship with the deceased shortly after Mr Miazga moved to Queensland for work. On 13 February 2014, you were dealt with at the Melbourne Magistrates' Court for two counts of unlawful assault of Ms Sikai and one of intentially damaging property. You were fined $500.00. Mr Tinney SC, who prosecutes, accepted that this prior conviction, whilst not of any particular significance by itself, was part of the overall history of the relationship which was characterised by your jealous and controlling behaviour.

6 Ms Yimklan and Mr Nguyen became tenants in Ms Sikai's unit in about October 2013. They also heard arguing and various threats made by you towards the deceased. In the week or so before her death, Ms Sikai had been staying with friends rather than at her own unit. She asserted that this was because she was scared of you, as you had threatened her by text message. Only days before her death you said this to Mercy Waiya, Maryanne's friend: "One of us will leave this earth". I regard this as a statement indicative of the acrimony that had beset the relationship by this stage. It is not characterised by the prosecution as a threat. I agree with this approach.

7 On 17 March 2014, that is the night before she died, Maryanne asked Mr Nguyen to change the front door lock of her apartment. She told Mr Nguyen she would then return home. She said that the reason she wanted the lock changed was to keep you out of the apartment. You had retained your key to the old lock. Mr Nguyen fitted a new lock to the front door that evening.

8 At about 1.20am on 18 March 2014, you broke into Maryanne's apartment by breaking the door using your shoulder. You asked Maryanne if you could talk with her; she refused. You watched television, drank wine for a time and then slept in her bed.

9 You woke at about 7.00am. Maryanne was already awake. Apparently without her knowledge, you sent Peter Miazga a text message. It read, "I'm with Maryanne now what u gonna do Mather fucker I told u get out from our life".

10 On your account to police, you spoke with Maryanne and told her about your text to Mr Miazga. She became upset. You told the police, "Yeah it's normal, she got angry at me and I told her to stop, cool down, we need to talk in a better way, yeah ... But she kept on going on it, she normally start it. ... and the rest of thing I say it on the phone, this has been recorded this phone, I don't want to say it again". This was a reference to an earlier recorded conversation with a policeman in which you said, amongst other things, that you had just killed your girlfriend. Beyond that, in the interview, you were not prepared to comment.

11 Mr Nguyen, the flatmate of the deceased, had been woken at about 8.15am by two voices arguing. Ms Yimklan heard noises similar to a person being pushed hard up against the wall of an adjacent loungeroom. She heard Maryanne calling out for help. Both went into the loungeroom. Maryanne was on the floor, crying for help. Mr Nguyen threatened to call the police if you did not stop. According to Mr Nguyen, you picked up a kitchen stool and carried it to where she was. You "smashed the stool down with a lot of anger into Maryanne's body". The stool broke and pieces were distributed around the room. Ms Yimklan recollected the lead-up events differently, but on this point they agreed. She described it thus: "He picked up a wooden chair and raised it over his head and slammed it down onto her body, striking her in the back". You then picked up a leg of the now broken chair and commenced to beat Maryanne to death. You struck her a minimum of four times to the head and neck, twice to the torso, eight times to the arms and shoulders, and at least three times to the legs. There were multiple fractures to the face and skull, including a basal skull fracture. This latter injury required really significant force. A measure of the severity of your attack can be ascertained from the underlying brain injuries. Contusions, a subarachnoid haemorrhage and diffuse traumatic axonal injury were observed. This would have been caused by sharp rotational movements of the head relative to the brain. Put bluntly, you beat Maryanne Sikai to a pulp. There is nothing brave about what you did. This was a cowardly attack upon a terrified, defenceless woman.

12 I accept that your actions were spontaneous. That said, you acted with white hot anger and were undeterred by the efforts of Mr Nguyen to intervene. Given the ferocity of your attack, I am satisfied beyond reasonable doubt that you intended kill Maryanne. I shall quote again from Ms Yimklan's statement:

The piece of broken chair Isac was hitting Maryanne with was quite large ... he was raising it over his head with two hands whilst standing and striking Maryanne as she lay on the ground. Maryanne wasn't moving or saying anything by this time.

I consider that when you entered the police station, a few minutes after this attack, you knew exactly what you had intended to do to Maryanne. You said to police that you had just killed your girlfriend. Although, at that stage she had not yet died, she was mortally injured, apparently lifeless and silent.

13 I accept that you have expressed a modest amount of remorse for your attack on Maryanne. You went straight to the police station and confessed to killing your girlfriend. You told them you "felt bad" for your actions. You have expressed also some remorse to Dr Barth, a psychologist, who prepared a forensic report that was tendered on your plea. Your repeated changes of plea are, I suspect, a product of you not wishing to accept the tag of "murderer", rather than any denial of responsibility for your actions. You have never denied responsibility for causing Maryanne's death. Although I am not prepared to infer any remorse from your plea of guilty, there is evidence of some modest remorse from other sources and I shall allow you some benefit for it. You are entitled to a utilitarian benefit for your plea of guilty. Your committal was conducted on a very limited basis and the community has been saved the expense and inconvenience of a contested jury trial. Witnesses to your actions have been spared the ordeal of giving evidence. I have reduced the sentence that otherwise I would have imposed to reflect this.

14 I turn now to your background. You were born in Sudan and, like so many people of your background, you suffered appalling deprivation and suffering as a young person. Suffering so great that, in my view, it is almost beyond the comprehension of people lucky enough to be born in this country. You are one of five boys born into a small community in Southern Sudan. I am told and accept that you were always hungry, occasionally very hungry. You were close to your mother and father. Your country descended into civil war when you were eight. Your community was attacked. You were separated from your mother and other brothers. You fled with your father. Your father was shot directly in front of you. You started crying and stopped to help him. He told you to run and you did. You never saw him again and he died from his wound. You met up with others from your community. You walked 75 kilometres to Malakal. A family took you in and protected you from the war which raged around the city. I am told you left this family when you were nine - it appears they simply did not have sufficient resources to feed you properly or to assist with schooling.

15 You became homeless and lived on the streets of Malakal. Like other children in your predicament, you would seek out work in restaurants, which would provide scraps of food left over on the plates you were to wash. This situation persisted for two years. An army officer from Northern Sudan patronised your restaurant. He struck up a rapport with you, the result of which was that you ended up, at 11, living with his family. He had promised, I am told, to adopt you and educate you. The reality was very different. You were beaten daily, raped and forced into servitude. You ran away after a year, were accommodated by the church for a time, and then were required to perform military training. At the age of 14, you escaped to Cairo, where some normality entered your life. You stayed there for 13 years. The expatriate Southern Sudan community helped you find accommodation and you commenced an apprenticeship as an electrician. I understand you completed this and worked as a qualified tradesman for some years. You met your wife, Khaleda, and in 2006, after an incident at her work, you travelled to Australia. You spent 12 months at Baxter detention centre and were released. Your daughter was born shortly after your release. Your marriage broke down in 2008 and I understand you have maintained contact with your daughter.

16 Since your release from the detention centre, you have worked assiduously as a security guard at the Sunshine Magistrates' Court and also at various night venues. You were able to provide for yourself and also send $500 a month to your brothers in Sudan. Your mother died in 2006. I have already dealt with the background to your relationship with Maryanne.

17 It can be seen from this necessarily abbreviated history that I have set out that you have suffered cruel, at times inhuman, deprivation and social disadvantage. Our High Court has recently explained that there is more to this kind of disadvantage than mere narrative. Very frequently such disadvantage is the prelude to a criminal life and may explain a person's criminal behaviour. In this case, for reasons that I will now set out I consider that your early life has, most likely, led to you now suffering from a significant mental impairment or disorder. In turn this provides an explanation, if not a complete excuse, for your conduct.

18 I mentioned a moment ago that your solicitors commissioned a psychological assessment. This was carried out by Dr Barth, who conducted extended clinical interviews over a period of about four hours on 22 July and 5 August 2015. Dr Barth was also provided with, amongst other relevant material, a copy of a psychological report of Mr Michael Crewdson dated 7 May 2015. This latter report was prepared for your change of plea proceedings. Mr Crewdson had spent, in total, about 12 hours with you.

19 Dr Barth reviewed your early life, your relationship history and your history of relatively heavy alcohol consumption commencing roughly upon your arrival in Australia. In my ruling on your change of plea application, I accepted on the basis of Mr Crewdson's evidence that you suffered from a Post-Traumatic Stress Disorder. Dr Barth agreed with Mr Crewdson's diagnosis of PTSD. Both psychologists linked the development of this disorder to your traumatic early life. I accept that individuals who suffer from PTSD experience ongoing emotional disturbances that can have a "significantly adverse effect on their judgment and social reasoning. More specifically, they can be prone to impulsive and reckless decision making in emotionally charged situations, particularly when they perceive they are under some physical threat. In such circumstances, they are likely to experience considerable difficulty developing alternative courses of action to manage the situation". Whilst, as I have said, I generally accept these remarks, I do not accept that you perceived yourself to be under any threat when you killed Maryanne Sikai. I regard your contrary assertion to your psychologist as a self-serving rationalisation for your conduct which has no basis in fact. You did not mention it to the police when you entered the police station nor during your subsequent interviews with Mr Crewdson. Notwithstanding this, I am satisfied on balance (a) that you suffered from an undiagnosed PTSD that had its genesis in your cruelly deprived childhood, and (b) that as a consequence of this, at the time of offending your judgment, social reasoning and decision making faculties were impaired to some degree.

20 Dr Barth also expressed the opinion that you had difficulty coping with emotional stress and you would attempt to repress your emotional experiences. This, he thought, was a response to the "deeply traumatic experiences (you) endured in South Sudan". This dysfunctional coping mechanism, he opined, makes you vulnerable to outbursts of anger in emotionally charged situations. Dr Barth considered that you were not generally an angry or hostile person. I accept these opinions.

21 Dr Barth also expressed the view that heavy alcohol consumption may have played a part in your offending behaviour. For my part, I am not satisfied of this. CCTV footage shows you driving into the car-park of the units at about 1:10am, walking normally, carrying a bottle of wine to the lift area and ascending to level three. There is no indication in any of this footage that you were affected by alcohol. The fatal events occurred seven hours later. A half full bottle of wine was found by the bed you shared with Maryanne, and there is nothing in your subsequent conduct at the Footscray Police Station to suggest that you were in any way influenced by alcohol.

22 I am satisfied, however, that your traumatic upbringing and its product, your PTSD, are realistically connected to your offending. I consider it likely that your capacities to exercise restraint and sound judgment in a time of emotional stress were diminished by the PTSD from which I accept you suffered. In these circumstances, I consider that your moral culpability or blameworthiness for murdering Maryanne Sikai is reduced to a moderate extent. I am also of the view that the aspects of general and specific deterrence, just punishment and denunciation, although still weighing heavily in the sentencing mix, should be given a little less weight than otherwise would be the case. Your psychologist also offered this opinion: "In the light of Mr Daing's mental health issues, he is likely to be a particularly vulnerable prisoner and experience imprisonment as more burdensome than an individual who does not suffer from a mental disorder". I accept this opinion.

23 In summary, I consider your deprived early life and consequent impaired mental functioning has reduced your moral culpability, the need for general and specific deterrence and denunciation. It will also make your future experiences in prison more burdensome. I have moderated the sentence that otherwise I would have imposed to reflect these factors.

24 You have committed the prior offences I have referred to earlier in these reasons. Aside from these, you have no other prior offences or convictions. Your counsel, in a comprehensive and helpful plea, has tendered various character references which I have taken into account in your favour. I accept that your prospects for rehabilitation are quite good. You have been continually employed, you have no antisocial personality disorders, a daughter for whom you care deeply, and apparently a sound capacity for empathy. You have used your time in custody productively and have some trade skills that may be engaged upon your release.

25 Thus far, I have devoted considerable attention to matters that can be said in your favour. There are, of course, strong countervailing factors:

• Maryanne Sikai was herself from an underprivileged background. Those who loved her grieve for her, and no sentence I pass upon you can bring her back or assuage that grief. The authors of the Victim Impact Statements speak eloquently of the damage that you have wrought upon them. I must take their suffering into account.

• There is a vital community interest in deterring powerful if inadequate males from terrorising their weaker female partners or ex-partners. This is not a new phenomenon, and the answer to it, demonstrably cannot come from the courts alone, but we must play our part. If jealous, enraged bullies can be deterred, then we must try to do so. Although I have softened the impact of general deterrence in this sentence on account of your mental disorder, it still weighs heavily in the sentencing mix.

• For the same reasons, your conduct calls for just punishment and denunciation, again moderated somewhat by your mental disorder.

• Despite your limited prior history, it involves two offences committed against Maryanne Sikai herself. If left untreated, your lack of capacity to manage your anger may present a danger in any future emotionally charged situations. I have given some weight to the aspect of specific deterrence, but again I have moderated it somewhat on account of your mental disorder. I accept that you are keen to receive a comprehensive integrated treatment program for your PTSD. Whilst supportive counselling and alcohol related treatment is available in custody, as I understand it, intensive psychotherapy to deal with PTSD is not. This is a great pity - it is contrary to your interests and more importantly to the community's interests.

26 Balancing these competing factors as best I can, I sentence you as follows. Stand up please, Mr Daing.

27 On the charge of murder, I sentence you to 18 years 6 months' imprisonment. I order that you serve 14 years and 6 months before parole eligibility.

28 But for your plea of guilty, I would have sentenced you to 20 years 6 months' imprisonment with a minimum term before parole eligibility of 16 years and 6 months.

29 I declare you have served 525 days inclusive of today imprisonment as pre-sentence detention.