The Queen v Liao [2015] VSC 730

3 These crimes arose out of your relationship with Brian Mach, who was the husband of the deceased woman, Mai Mach. Your relationship with Brian Mach began in 2012 when you met him in China. At that time Brian Mach was separated from his wife. Over the following years you and Brian Mach remained in contact and a romantic relationship between you was established. Many of your communications were over an internet program known as 'WeChat'.

4 It is clear enough that you had a strong desire for Brian Mach to end his relationship by leaving and divorcing his wife Mai so that you and he could be married. The Crown have suggested that this desire was primarily motivated by your ambition to obtain Australian citizenship, but I have concluded that your relationship with Brian Mach extended beyond that of potential convenience and was characterised by a strong emotional commitment, at least on your part.

5 From May 2012 onwards, the relationship between you and Brian Mach became quite intense. You claim that Brian Mach promised marriage both to you privately and also in the presence of your family.

6 However, during 2013, whilst the relationship between the two of you continued, it became clear to you that Brian Mach was intending to continue in his marriage. There were periods during which you and Mr Mach resided together during 2014 but in the early part of 2015 it was becoming increasingly obvious to you that Mr Mach did not wish to commit to the relationship with you.

7 On 29 March 2015, a few days before the offences to which you have pleaded guilty were committed, you asked Brian Mach to come to your place to discuss the relationship. This conversation occurred. On the following day, 30 March 2015, you went to Brian Mach's house unannounced and demanded to take him to the Sunshine Police Station for the purpose of obtaining a statutory declaration which you intended would in some way nullify his marriage. He went with you but once at the police station refused to sign the statutory declaration and in fact wrote a letter signed by a Justice of the Peace affirming his marriage to his wife.

8 The following day, 31 March 2015, you went to Brian Mach's house early in the morning leaving your own home at about 5.44am. At 6.00am, you observed Brian Mach's wife, Mai, leave her address to go to work. You then went to the front door of Brian Mach's house and were allowed to enter by him. Brian Mach asked you to leave but you refused. There was a further argument about you wanting him to leave his wife.

9 As it happened, on this day Brian Mach was looking after his four-year-old grandson, Alistair Kwong, and there were occasions on which the child woke up and had to be settled back to sleep by him.

10 According to the prosecution summary of opening, Brian Mach's next recollection is of regaining consciousness while lying on the lounge-room floor tied up, his arms and legs secured with masking tape, his mouth stuffed with a rag. Keeping him in this state over a number of hours is charge 4 on the indictment being the charge of false imprisonment. Mr Mach describes slipping in and out of consciousness as the morning and afternoon continued. During this period of time, and while he was unconscious, you having drugged his drink at some stage during the morning, you went to the bedroom where four-year-old Alistair Kwong was sleeping and used a pair of garden shears to attack him around the face, head and throat killing him in the bed where he lay. He was then covered with a doona by you and left there. That charge of murder is charge 2 on the indictment.

11 During the afternoon when Brian Mach became conscious you asked him what time his wife was expected home. You also attacked him by kicking him in the head, face and chest as he was lying bound on the ground. Those actions are charge 3 of the indictment. You told Brian Mach that you were going to kill Mai when she arrived home. Brian Mach asked about the welfare of his grandson but you gave him no response. You also threatened Brian Mach with the garden shears promising to push the pointed ends into his eye if he called out or made any noise.

12 At about 5.00pm, Mai Mach returned home and drove her vehicle into the backyard area closing the gates behind her. You ran out to the back with the same garden shears and attacked Mai Mach in that area. You used the shears to cut and/or chop at the head, face and neck region of Mai Mach causing her death in that backyard. Those actions of yours are the other charge of murder which is charge 1 on the indictment.

13 Neighbouring children who were nearby heard the screams for help and alerted their parents and ultimately the police.

14 You then went back into the lounge-room and showed Brian Mach the garden shears and told him, 'I used these. I cut the bitch's throat'. Having now killed twice, you also told him that you were going to wait for Amy Mach, who was the mother of the child you had murdered earlier in the day to come and pick him up and that you would kill her as well.

15 You said to Brian Mach, 'I've killed everyone to make you suffer and if I'm happy I'll let you go with them'.

16 When the police attended they found you sitting on a couch next to where Brian Mach was lying on the floor. They observed the garden shears and a roll of tape that was sitting on the table next to you, you were then arrested.

17 The post-mortem of Alistair Kwong on 1 April 2015 showed that he died from multiple sharp force and blunt force trauma which had caused, among other things, massive blood loss. He had defensive injuries to his hands. Likewise, the post-mortem on Mai Mach also showed multiple sharp force and blunt force injuries causing massive blood loss, and she too had some defensive-type injuries.

18 Brian Mach was conveyed to the Royal Melbourne Hospital and treated for soft tissue injuries including bruising to his hand, a right temporal haematoma, abdominal bruising and a laceration to his leg.

19 On Wednesday 1 April 2015, the police sought to interview you at the office of the Homicide Squad. In effect, exercising your right, you declined to answer questions asked of you about what had occurred on the previous day.

20 Your conduct in committing these offences was horrendous. As occasionally occurs in cases such as this, to me your conduct is almost unbelievable. That you would kill a defenceless four year old child as he slept in his bed and then wait a number of hours, apparently without regret or second thought, for the purpose of killing the child's mother and Mai Mach is extremely serious, as I suspect you may be now starting to appreciate.

21 I have received victim impact statements from the following:

Ka Winh Kwong, who is the mother of Alistair Kwong;

Cuc Kim Mach, who is the sister-in-law of Mai Mach; and

22 These victim impact statements make for harrowing reading. The emotional wounds that you have inflicted on these people by your actions are deep and life-affecting, and will be with them for the rest of their lives. However you felt about Brian Mach and the fate of the relationship that you maintained with him, all of these people were innocent of any wrongdoing so far as you were concerned. Despite that, you have taken steps in a most extreme form which will inflict life-long punishment on them.

23 I have taken these victim impact statements into account in determining the sentence that I will impose on you.

24 You were born on 13 July 1970 and are now aged 45 years. The evidence before me suggests that you were raised in a poor peasant family in a mountain village in the Guandong province of China. Your father died when you were aged nine, and your primary upbringing was supervised by your mother. You were close to your mother. You had an older brother and a sister-in-law who you reported to Associate Professor Andrew Carroll, during his assessment of you, had emotionally and physically abused you when she came to live with your family.

25 When you were 14, you left school and learned to make Chinese food and, having done that, you returned to your hometown to start a business selling bread and cakes with a cousin, still in your late teens. Also at the young age of 20 you married your first husband. That marriage was a happy one. You and your first husband had a daughter who is now a student at Monash University. In the time since you have been in custody she maintains contact with you both by phone and by visiting.

26 When you were about 30 years of age, your husband was killed in a car accident and you were, as your counsel has submitted on your behalf, grief stricken. You contemplated suicide, but you had a daughter who was then nine years of age who kept you going.

27 Two years after your first husband died, you married again to an older cousin. That marriage lasted for several years, but failed as a consequence of your husband's infidelity. You and your husband divorced in 2004, but the relationship continued until 2007 in the same house and ultimately you had to pay him a significant sum of money to leave the premises.

28 By this stage, you had maintained a successful business and, in 2008, sold some property to enable your daughter to come to Australia and start Year 10 in her secondary education.

29 You visited Australia from time to time and involved yourself in business ventures in China, and it was at this time in March 2011 that you met Brian Mach, who was a friend of your uncle. It was in 2012 that the relationship became established and, according to your instructions to your counsel, as I have already said, he promised marriage.

30 On 23 October 2015, Associate Professor Andrew Carroll, who is a consultant forensic psychiatrist, prepared a report on your mental state for the purpose of your plea. Associate Professor Carroll also gave evidence during the course of the plea.

31 In his report, as I understood his primary diagnosis, he said that you showed evidence of a mixed personality disorder, with predominantly dependent but also some histrionic features. Your disorder is primarily connected with your intimate relationships and has not obstructed your progress in other areas of your life. Among other things, you are apparently prone to becoming intensely preoccupied with fears of abandonment within relationships and will behave in any way you think is necessary to maintain the relationship. In Associate Professor Carroll's opinion, you were severely distressed at the time of committing these offences and your behaviour is, according to him, only understandable in the context of your personality structure and your turbulent and dysfunctional relationship with Brian Mach . In his opinion, your personality disorder and related distress were part of a matrix of factors that contributed to the offending behaviour. You have no issues involving drugs or alcohol. In his report, he also referred what he described as a 'diagnosable' adjustment disorder. That condition worsened with a depressive episode after you went into custody but that has resolved as has the adjustment disorder.

32 In his evidence, Associate Professor Carroll described how both active and passive aggressive behaviour can be triggered in individuals with dependent personality disorders when the relationship that person values so strongly is under threat. He went on to say that your plan to kill Mai Mach, which you ultimately carried out, was consistent with the behavioural tendencies of individuals with personality disorders given it was Mai Mach who you perceived as a threat to your relationship with Brian Mach.

33 When asked whether your personality disorder went some way in causing you to commit the relevant offences he said that 'in the absence of your disordered personality you would not have lost perspective in the way that [you] did over the months, hours and moments prior to the offence, but that it was not a sufficient explanation for your offending'. This correlational rather than causative type of relationship between your mental state and your offending is, as I will come to, problematic for me in considering whether, and to what extent, the principles enunciated in the judgment of the Court of Appeal in R v Verdins; R v Buckley; R v Vo[1] apply.

34 As a result of the report and evidence of Associate Professor Carroll, your counsel has submitted that you do fall within the Verdins principles. In that case, the Court identified six ways in which impaired mental functioning, whether temporary or permanent, was relevant to sentencing. It was submitted by Mr Gibson on your behalf that your condition reduced your moral culpability and that denunciation is less likely to be a relevant sentencing objective. It was also submitted by him that there should be some moderation of the significance of the principle of general deterrence as a result of your condition. It was not submitted that general deterrence should be eliminated as a sentencing consideration.

35 On 10 December 2015, I heard further submissions from your counsel and the prosecutor about your mental state and which principles should apply following the judgment of the Victorian Court of Appeal in DPP v O'Neill.[2] In summary, in that case the Court considered the scope of the Verdins principles and concluded that they are only enlivened where the offender suffers from impairment of mental functioning. As such the principles in Verdins principles do not apply to personality disorders. The Court also concluded that personality disorder could be relevant in assessing the moral culpability of an offender.

36 For that hearing on 10 December 2015 Associate Professor Carroll provided a further report dated 8 December 2015. In his report he emphasised that in addition to the personality disorder he had originally diagnosed you also suffer from a diagnosable and separate adjustment disorder, which caused distress arising from your relationship with Brian Mach. As I have indicated, that was a condition referred to in the earlier report. As I understand his conclusions about that condition, it was a factor in your very serious offending.

37 Your counsel submitted that your severe distress which was indicative of your adjustment disorder, should because of its effect, reduce the moral culpability of your offending and result in the significance of general and specific deterrence being moderated as sentencing considerations. As becomes obvious, I do not consider there is a significant role for specific deterrence in any event.

38 I respectfully agree with the prosecutor that it is not feasible to 'disentangle' the links between an adjustment disorder and the overlying personality disorder. The diagnostic labels are starting to achieve an inflated importance in this matter. In my opinion, it is appropriate to take your personality and adjustment disorders into account in considering your personal circumstances and endeavouring to understand why you committed these terrible offences. The adjustment disorder to which Associate Professor Carroll refers is linked to the personality disorder he also identified and explained in his first report. I am willing to accept Associate Professor Carroll's opinion that at the time of committing these offences you were severely distressed in the context of your failed relationship with Brian Mach and that was a consequence of your vulnerable personality. There was therefore some effect on your judgment. It is appropriate for me to conclude that to some degree only, your moral culpability is lessened. However, I agree with the prosecution's submissions that there is nothing about your mental state that requires me to moderate the effect of general deterrence in the sentence I will impose on you.

39 The presence and degree of premeditation is a relevant consideration when sentencing an offender and one raised on the current circumstances See R v Streeter;[3] R v Sharpe.[4]

40 The prosecutor submitted, in the summary of prosecution opening for plea, that based on both the internet conversations and the accused behaviour on the day your offending in relation to Mai Mach was unequivocally premeditated and deliberate. He further submitted that your offending in relation to Alistair Kwong, although it did not involve the degree of pre-planning which occurred in relation to the murder of Mai Mach, was also premeditated rather than a 'spontaneous action that occurred in the heat of the moment'.

41 By contrast, Mr Gibson submitted on your behalf that the issue of premeditation is more ambiguous. In support if this submission he conceded you came to the home of Brian Mach in possession of sedatives with which to incapacitate Mr Mach. You sourced your choice of murder weapon and binding materials from that which was available at the property at the time. He submitted that you had rehearsed the killing of Mai Mach in a context of you and Brian Mach having a future together. The way events unfolded was somewhat different. In my opinion you went there with an existing intention to kill Mai Mach. To that extent it was premeditated. There was nothing spontaneous about what you did. You waited for a number of hours before you acted to kill her, having already killed once. In relation to the child that was more spontaneous, but nonetheless a product of your existing agitation about the failure of your relationship with Brian Mach.

42 In Professor Carroll's evidence he discussed your likely cognitive rehearsal of how, in all likelihood, the murder of Mai Mach would have played out in your mind prior to the day of the offence. However, in his opinion, what actually occurred on that day was a wild digression from any previous fantasies.

43 I am persuaded by Professor Carroll's evidence and agree that there was most certainly a degree of premeditation in relation to your offending against Mai Mach, and to a lesser extent in relation to Alistair Kwong, but that the events that befell those two victims on the day of their murders far exceeded your previous imagination.

44 The killing of a child is an extremely serious feature of your offending and is to be given considerable weight in the sentencing process see Acar v The Queen;[5] R v Sharpe;[6] Hicks v The Queen.[7] The justification for this position is that the murder of a more vulnerable victim such as a child constitutes offending of a more serious nature and, in some instances, the most serious example of the offence of murder: see R v Sharpe.[8] Your actions in relation to the child were extreme, grave and callous. Given that this killing occurred in circumstances where your object was to do whatever you could to harm Brian Mach no matter how extreme, this murder falls into the worst category. Having committed this crime, you waited with Brian Mach imprisoned so you could kill again, and you did so apparently unperturbed by what you had already done. I have given this consideration substantial weight in the sentence I will soon impose on you.

45 On your behalf, Mr Gibson submitted that you have displayed what he referred to as profound remorse. As to that issue, I acknowledge you pleaded guilty to each offence at the earliest possible opportunity. Your counsel has told me that you wanted to accept full responsibility for what you have done. Your early plea of guilty illustrates your willingness to do that. The question is whether your plea of guilty and your attitude generally is one which includes a deep regret for the wrongs you committed.

46 While I do believe you show some genuine remorse in relation to your offending against Alistair Kwong I am not persuaded that you have the same degree of remorse in relation to you offending against Mai Mach or Brian Mach. In reaching that conclusion I refer to Professor Carroll's evidence where he said (page 34):

Her expression of remorse and tearfulness when she discussed the death of Alistair was well communicated and seemed to be indicative of very deeply held emotions. Although she was tearful at times, and I think this is where the histrionic aspects of her personality comes to the fore, she showed what a psychiatrist calls shallowness of affect, whereby there was lots of tears but as the interviewer in the room with her would not feel emotionally affected by that. Now when she talked about Alistair, it was very emotionally moving for the interviewer. When she talks about the other sets of offences, that wasn't the case.

47 You are a person without previous convictions and until now were of good character. Not much was said about this during the plea but the fact is that you are going to spend a long time in custody. By the time of your release you will be very much older and, as the prosecutor accepts, there is little chance of you re-offending and specific deterrence is of less importance. That may not be properly described as rehabilitation because I am not sure that you yet have a proper insight into the gravity of what you have done but I am willing to accept that, in time, that may occur. There are, I think, some prospects for your rehabilitation but the life ahead of you is very difficult.

48 Amendments to the Sentencing Act 1991 sought to establish a regime of sentencing for certain offences including murder, of what is generally known as baseline sentencing. Following the proclamation of these amendments, issues arose concerning how the provisions could be applied. In DPP v Walters,[9] the Court of Appeal determined that the defects in that legislation were 'incurable' and that the provisions are 'incapable of being given any practical operation'. The problems of application identified before the Court of Appeal were concluded to be 'fundamental'.

49 That being the case, I will sentence you according to the principles in application prior to the baseline provisions coming into effect. For the sake of completeness, I indicate that I regard s 11A of the Sentencing Act concerning non-parole periods for baseline offences as coming within that category.

50 Pursuant to the Migration Act 1958 (Cth), and in particular s 501(3A), the relevant Minister is required to cancel a visa of the kind possessed by you if you are serving a sentence of imprisonment on a full-time basis in a custodial institution for more than 12 months.[10] The section particularly provides that the rules of natural justice do not apply to a decision under this section.

51 The certainty is that upon the custodial portion of your sentence concluding you will be deported. Given this prospect will likely increase the burden of your sentence both on the basis that you will lose the opportunity to live in Australia where your daughter is presently residing, and in all likelihood will still be living upon your eventual release, I have taken it into account in mitigation of your sentence.[11]

52 It remains to determine the sentence I should impose on you. I have considered the principle of totality and the sentence that is just and appropriate for the whole of your offending. You will be sentenced as follows:

• On charge 1, being for the murder of Mai Mach you will be sentenced to 26 years imprisonment;
• On charge 2, being for the murder of Alister Kwong you will be sentenced to life imprisonment;
• On charge 3, being for intentionally causing injury to Brian Mach you will be sentenced to 2 years imprisonment;
• On charge 4, being for falsely imprisoning Brian Mach you will be sentenced to 4 years imprisonment.

53 The total effective head sentence is therefore life imprisonment. I direct that you serve a minimum period of 32 years imprisonment before becoming eligible to apply for release on parole.

54 Pursuant to s 6AAA of the Sentencing Act 1991 I state that but for your plea of guilty I would have imposed a minimum period to be served before you would be eligible for release on parole of 35 years.

55 I declare that your pre-sentence detention is 262 days including, this day, and direct that period be reckoned as time already served and such determination be entered into the records of the Court.

[1] [2007] VSCA 102, [32].

[3] [2014] VSC 100

[4] [2005] VSC 276

[5] [2012] VSCA 8.

[6] [2005] VSC 276.

[7] [2015] VSCA 14.

[8] [2005] VSC 276 at [57]

[10] Note: The Section provides that The Minister must cancel a visa that has been granted to a person if: (a) the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.

[11] DPP v Huajliao Zhuang [2015] VSCA 96, [54].