Wan v The Queen [2019] VSCA 81

1 After standing trial on a charge of murder, the applicant was convicted on the alternative charge of manslaughter, to which he had earlier pleaded guilty. He was sentenced to a term of 11 years' imprisonment with a non-parole period of 7 years and 6 months. The applicant sought leave to appeal against that sentence on the sole ground that the sentence was manifestly excessive, particularly having regard to his plea of guilty, his remorse and conduct immediately after the event and his isolation in custody. Leave to appeal was refused by a single judge.[1] The applicant has elected under s 315(2) of the Criminal Procedure Act 2009 to have his application determined by the Court constituted by at least two judges.

2 For the reasons that follow, the application for leave to appeal is refused.

3 The incident which was the subject of the charge took place in LaTrobe Place, Melbourne shortly before 10:30 pm on Friday 15 April 2016. At the time, the applicant was 23 years of age and studying at the Royal Melbourne Institute of Technology. The victim, Longxiang Hu, was 19 years of age and a secondary school student at Yarra Valley Grammar school undertaking his studies for the Victorian Certificate of Education.

4 Approximately a month earlier, Mr Hu had commenced a relationship with Ms Yongying Jiang, who was also a student at the school. At that time, Ms Jiang had been friendly with Wuyang Ji. Mr Ji became upset when Mr Hu commenced his relationship with Ms Jiang. The applicant was a close friend of Mr Ji, who was five years younger than him. In the weeks before 15 April 2016, the applicant and Mr Ji directed communications to Mr Hu, expressing hostility towards him. They pressed Mr Hu to meet with them in order to sort out their differences.

5 Ultimately it was agreed between Mr Ji and Mr Hu that they would meet on 15 April 2016 in LaTrobe Place, an alleyway in the central business district of Melbourne. The purpose of meeting was to fight each other in order to resolve their differences over Ms Jiang. Before the fight took place, a number of friends of both parties were invited to attend.

6 On the evening in question a large number of persons were present as spectators. The fight took place over less than two minutes, part of which was recorded on CCTV footage. Shortly after Mr Ji and Mr Hu commenced fighting each other, the applicant also became involved and threw some punches in the direction of Mr Hu. The applicant then withdrew and Mr Ji and Mr Hu continued to exchange blows for a short time. They parted and the fight appeared to have concluded. However, the applicant intervened and threw some punches at Mr Hu and directed Mr Ji to continue the fight. The fight was resumed. In the course of it, Mr Ji appears to have dislocated his shoulder, and withdrew. At that point the applicant became actively involved. Another person along with Mr Ji also attempted to join the fight but the applicant directed him to desist.

7 The fight continued for about 15 seconds. The applicant then threw Mr Hu forcefully to the ground and immediately stomped on the back of his head while his forehead was facing the ground. The third person then kicked Mr Hu in the stomach after which the applicant again stomped on the back of his head. The blows caused Mr Hu to be lying on the ground with the right side of his face against the surface of the laneway. In the space of two seconds, the applicant then forcefully stomped three times on the left side of Mr Hu's face. The last two of those blows were delivered while the applicant had both hands on the wall of the building adjacent to the laneway. In inflicting each of those two blows, the applicant raised his knee above hip height.

8 The applicant then walked away a short distance before returning and attempting to kick Mr Hu again. He then walked away. Mr Hu was lying on the ground. A number of onlookers assisted him to sit up but he was clearly unwell and distressed. The applicant approached Mr Hu on a number of occasions over the next hour. He apologised to him a number of times and on one occasion said 'I bashed you too hard which I shouldn't have'. The applicant demonstrated some concern for Mr Hu's condition and told him and his friends that he should go to hospital. He said that he would pay for any medical expenses.

9 Mr Hu did not wish to go to hospital, but his condition was seriously deteriorating. At about midnight some of his friends took him to a nearby hotel, by which time he could not walk without assistance. He was placed on a bed in a room at the hotel. His condition deteriorated very badly. The applicant attended at the hotel room at about 5:00 am and over the next two hours urged that Mr Hu be taken to hospital without delay. Another person refused to permit this to be done. After an argument the applicant persuaded those who were in attendance to take Mr Hu to hospital, at about 7:00 am.

10 On arrival at the Royal Melbourne Hospital, Mr Hu was unconscious and suffering from a significant intracranial injury. A CT scan revealed that he had a significant injury to his head, including a fracture to the skull and a large extradural haematoma. Due to the delay between the time the injury was inflicted and his attendance at hospital, the increasing pressure on his brain resulted in brain death. Mr Hu was placed on life support and maintained in intensive care until his parents arrived from China. On 23 April 2016, he died after his life support was turned off.

11 Professor Stephen Cordner, a forensic pathologist, conducted an autopsy the following day. Mr Hu was found to have extensive areas of bruising to the forehead and to each side of his head. He had a large and extensive fracture to the right side of the skull and a substantial extradural haematoma. Professor Cordner concluded that the injuries which resulted in Mr Hu's death had resulted from the kicks or stomps to the head inflicted by the applicant. He considered that it was more probable that one or more of the last three stomps inflicted to the left side of Mr Hu's head caused the fracture and haematoma.

12 The prosecution did not allege that the applicant had intended to kill Mr Hu. Rather, it alleged that he committed murder because he intended to inflict really serious injury upon him. By its verdict, the jury is to be taken not to have accepted that account but to have accepted that, in unlawfully assaulting Mr Hu by stomping on his head, the applicant had acted dangerously, in the sense that a reasonable person in his position would have appreciated that he was exposing Mr Hu to an appreciable risk of serious injury.

13 The sentencing judge found that there was no suggestion that there was any conduct by Mr Hu which provoked or precipitated what the applicant did to him. He described the applicant's actions in throwing Mr Hu to the ground and stomping on him as 'totally unwarranted' and involving 'a high degree of wanton violence'.[2] The judge continued:

In particular, your conduct in stomping on Longxiang Hu's head five times was vicious and cowardly. Longxiang Hu was entirely defenceless, vulnerable, and at your mercy. The stomps were forcefully directed at his head while he was lying on the hard surface of the lane. Each of them were forceful blows, and, in particular, the last three were delivered by you with a substantial amount of force. As mentioned, in order to inflict the last two blows, you placed both of your hands on the wall, so as to steady yourself and give you greater leverage. The stomps took place in a period of less than four seconds of savage and sickening violence by you. Not content with having assaulted Longxiang Hu in that manner, a few seconds later you returned and tried to kick him again.[3]

14 The judge characterised the actions of the applicant as falling within the 'higher end of the range of offences of manslaughter'.[4] The impact and enormity of the crime was illustrated by the promising future the young victim had before him and the 'indescribable pain and anguish' which his death had caused to his parents, who had no other children.[5]

15 The judge referred to mitigating factors arising from the applicant's conduct after the incident. He expressed real concern as to the wellbeing of Mr Hu and insisted that he be taken to hospital. The judge was not persuaded that this conduct evidenced any remorse by the applicant. He said that it was equally likely that it was driven by feelings of concern as to the consequences for himself. However, the applicant's conduct still demonstrated concern for Mr Hu and showed that he took some responsibility for what he had done.

16 The judge accepted that the plea of guilty to manslaughter which was offered shortly before the committal proceeding was an early one, and that it was accompanied by a willingness to facilitate the course of justice. The judge was satisfied that, by that time, the applicant felt genuine remorse.

17 Next, the judge turned to the personal circumstances of the applicant. He was a well above average student at school with a distinguished academic performance and had completed a double degree in finance and human resource management through Charles Sturt University and Tianjin University. In two years at the latter university he was designated 'excellent class captain' of his year.[6] A reference described him as being an outgoing, passionate and active student who tried to do his best and demonstrated high moral standards. After completing his university studies in China, the applicant commenced a Masters of Financial Management at the Royal Melbourne Institute of Technology.

18 The judge accepted that before the manslaughter of Mr Hu, the applicant had been a person of good character. He had no previous convictions. He came from a good family who were devoted to him and were devastated by what he had done. He had shown himself to be enterprising, diligent and highly motivated. Character references tendered on his behalf described him as particularly generous to his friends and to those who had fallen into unfortunate circumstances.

19 The judge noted that because of his conviction the applicant would be deported at the completion of his sentence. Although he had intended to return to China in any event, the judge took account of the fact that it was a rapidly changing country which would be a very different place to that which he had left. In that way, the applicant's return to China would be more difficult for him than it would otherwise have been.

20 The judge observed that the applicant had completed a number of programs during the previous two years while in custody. He had gained certificates in construction, cleaning operations and general education for adults. He had participated in and completed the managing sleep program and the coping with change program. Those matters, together with the applicant's previous good character led the sentencing judge to conclude that his prospects for rehabilitation were good.

21 The judge accepted that the applicant's time in prison had been difficult and that initially there were only two persons at the prison who spoke Mandarin with whom he could converse, one of whom had recently been transferred. Despite progress in learning the English language, the applicant's facility with English was quite limited. The capacity of his parents to continue to come to Australia to visit him during his term of imprisonment would be limited by reason of their finances and for health reasons. The applicant's circle of friends in Australia was diminishing as they completed their studies and returned to China. In these ways the judge accepted that the term of imprisonment would be more onerous for the applicant because of the isolation that he would experience.

22 The judge noted that at the time of the offending the applicant was a young person and that the courts ordinarily take the youth of an offender into account as a mitigating circumstance. However, he also observed that the kind of offending which the case involved was often committed by young offenders and that the weight to be given to the applicant's youth must on occasion give way to other sentencing principles, including general deterrence and protection of the community. The judge continued:

In determining your sentence, it is necessary that the sentence, which I impose, be such as to adequately express the condemnation by this Court, and by the community, of the serious degree of violence by which you took the life of Longxiang Hu. It is also important that the sentence be of sufficient severity so as to provide a clear lesson to others, and, in particular, to young persons, who might be minded to engage in violence of the kind that you perpetrated in this case. It is important that such persons understand that, if they choose to engage in gratuitous acts of serious violence, such as those engaged in by you, they can expect to be deprived of their liberty to live in society for a substantial period of time. It is also important that the sentence be sufficient in order to ensure that you personally are deterred from any further such wrongdoing. However, in that respect, as I have already stated, I am satisfied that the role of specific deterrence in this case is of lesser significance, in light of your previous good character, your genuine remorse, and the steps that you have taken towards your rehabilitation while you have been in custody.[7]

23 The applicant submitted that the sentence was at the upper end of the range of sentences imposed on the count of manslaughter in this State. It was submitted that the sentence did not sufficiently reflect the matters in mitigation and the weight properly to be accorded to them, and that a significantly lower head sentence ought to have been imposed.

24 In his written case, the applicant referred to the early plea of guilty, which indicated not only a willingness to facilitate the course of justice but also the remorse felt by the applicant. The delay while the trial proceeded after the plea was rejected had placed an additional burden on the applicant while he was on remand. It was submitted that there was evidence of contrition on the part of the applicant at the scene of the offence. It was not submitted that the trial judge had specifically erred in finding that the applicant's conduct on the night in question was equally likely to be driven by feelings of concern as to the consequences for himself. The applicant relied on the finding of the judge that the concern demonstrated by the applicant and the taking of some responsibility by him were mitigating factors.

25 The written submission for the applicant further emphasised the prior good character of the applicant and his good prospects of rehabilitation, the fact that China would be a very different place by the time he returns there, the isolation experienced by the applicant while in custody and his youth. It was submitted that, notwithstanding his lack of prior convictions and even assuming impeccable behaviour in custody, the applicant has no legitimate expectation of release at the expiration of his non-parole period because the current practice of the Adult Parole Board 'appears to be not to grant parole to those awaiting deportation'.

26 In summary, the applicant submitted that the few seconds during which he offended were out of character and that within a short time thereafter he was doing his best to make amends and to get Mr Hu the medical attention he needed. Since the death of Mr Hu, the applicant's remorse and shame had been heartfelt and agonising and he had done everything he could to facilitate the course of justice. As a result, balancing the factors going to the fixing of an appropriate sentence, it was submitted that a sentence of 11 years' imprisonment was not reasonably open.

27 Senior counsel for the applicant expanded on these submissions in oral argument. He submitted that the matters in mitigation were of such weight that the sentence could only be seen as manifestly excessive. Counsel pointed to similar sentences for manslaughter in other cases which, it was said, involved offending at least as serious by persons unable to call in aid anything like the range of mitigating features favouring the applicant.[8]

28 In addition, counsel submitted that the uncertainty as to whether or not the applicant would be eligible for parole as a result of his expected deportation upon release put him in a special position of 'uncertain suspense', or anxiety, as to his anticipated date of release, which would make his imprisonment more burdensome. A similar argument had been advanced, without being ruled upon, in Zhao v The Queen.[9] It was acknowledged that the provisions of s 5(2AA)(a) of the Sentencing Act 1991, to which we shall refer below, and the absence of evidence before the Court as to the likely position regarding parole, made this a vexed question for the Court.

29 The respondent submitted that the head sentence imposed appropriately reflected the gravity of the offending and the lack of mitigating features attaching to that offending. It was submitted that the judge clearly contemplated that the applicant may serve every day of his head sentence. The judge had taken account of each of the matters relied upon by the applicant. It was submitted that the judge was correct to temper considerations as to the applicant's youth with the need for general deterrence and protection of the community, having regard to the fact that offences such as the present one are often committed by young offenders.[10]

30 The respondent submitted that, while the offending was out of character and occurred over a relatively short period of time, it remained serious and brutal violence in a public place which took the life of a young man. It involved more than a momentary application of force. To the contrary, the application of five forceful and deliberate blows to the head of the helpless victim placed the offence towards the higher end of manslaughter by unlawful and dangerous act. It was submitted that the overall sentence properly reflected the extremely serious nature of the applicant's conduct and that it could not reasonably be argued that the sentence imposed was manifestly excessive.

31 Counsel for the respondent submitted that the sentence was a 'mainstream' one for offending at the higher end of the range of seriousness for the offence of manslaughter. The fact that similar sentences had been imposed in cases involving persons with prior convictions or in other aggravating circumstances could not be determinative of the question whether the present sentence was within range.

32 It is convenient to refer firstly to the question of parole. The Court is constrained in the manner in which it may treat the likely impact of immigration law and policy on the applicant's prospects of parole. Section 5(2AA)(a) of the Sentencing Act 1991 requires the Court not to have regard to 'any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind'. The argument was put on behalf of the applicant that the Court could, however, take account of the anxiety likely to be suffered by the offender by virtue of the uncertainty as to whether or not he would be refused parole because of his ultimate liability to deportation upon release. We are prepared to assume, without deciding, that taking account of such anxiety, and the fact that it may make prison more burdensome for the applicant than for another prisoner not similarly subject to deportation, would not infringe s 5(2AA)(a).

33 Even on that assumption, the evidentiary basis for the submission is lacking. The submission contends that the prospect of deportation places a prisoner in a position of anxiety more burdensome than other prisoners, because it makes release on parole highly unlikely. There is no evidence before the Court to show that this is the current attitude of the Parole Board, or that it is likely to be by the time that the applicant is eligible for parole. That is not a criticism of the applicant's argument. Rather, it points to its underlying difficulty. Predictions of this kind inevitably invite a significant degree of speculation, as s 5(2AA)(a) appears to recognise. It is simply not possible to say what the applicant's position regarding release on parole might turn out to be.

34 Accepting, however, that a circumstance of uncertainty exists, there is also no evidence about the applicant's state of mind in this regard. He may or may not regard his position as to parole as uncertain, and he may or may not be anxious as a result of any uncertainty he has. But even assuming a level of anxiety, there is no basis upon which we could find that he is in a position conducive to greater uncertainty than a significant proportion of the prison population who might be anxious about their prospects of release on parole for any number of reasons, real or imagined.

35 For these reasons, we do not think there is any substance in the applicant's arguments regarding his potential deportation.

36 We turn then to consider the wider argument that the sentence is manifestly excessive. In order to establish manifest excess, the applicant must show that something went obviously, plainly or badly wrong in the exercise of the sentencing discretion.[11] The question to be asked is whether the sentence imposed was wholly outside the range of sentencing options available to the judge, not whether some other sentence could have been imposed.[12]

37 The cases to which senior counsel for the applicant referred us show the wide range of circumstances in which the offence of manslaughter can notoriously be committed.[13] It is true that sentences of around 11 years for manslaughter have been imposed in cases where the offender cannot point to the same mitigating features as the present applicant and where the offending is at least as violent as this case. But that is only one factor in the fixing of a just sentence.[14] Another important factor, in the nature of a yardstick, is the maximum sentence of 20 years' imprisonment.[15]

38 The case is a tragic one for all concerned. One young man, of previously good character and excellent future prospects, has wantonly and viciously taken the life of another, younger man in a short but deadly display of sickening violence in a public place. To stomp repeatedly on the head of a person lying defenceless on the ground is obviously unlawful and exceptionally dangerous to the victim's life. As we have said, the maximum sentence for manslaughter by unlawful and dangerous act is 20 years' imprisonment. Violence of this kind, which is all too prevalent, is, as the sentencing judge found, likely to fall within the higher end of the range of offences of manslaughter. Despite his youth and the other significant matters advanced by way of mitigation in favour of the applicant, the seriousness of such conduct, which is often enough committed by young offenders, calls for stern denunciation and the imposition of a sentence which it may be hoped may deter others from similar conduct.[16] Accordingly, we do not accept that it can be said that the sentence imposed in this case was manifestly excessive.

39 For these reasons, we refuse the application for leave to appeal.

[1] [2018] VSCA 217.

[2] DPP v Wan [2018] VSC 195 [21] ('Reasons')

[8] Counsel referred to R v Balla [2017] VSC 392; Papadopoulos v The Queen [2014] VSCA 63; DPP v Turner [2017] VSC 358; DPP v Colton [2019] VSC 154; R v McKnight [2017] VSC 782 and DPP v Osborn [2018] VSCA 207.

[9] Zhao v The Queen [2018] VSCA 267 [60]-[73], [87] (McLeish, Niall and Weinberg JJA).

[10] Reliance was placed on DPP v Lawrence [2004] VSCA 154; (2004) 10 VR 125, 132 [22] (Batt JA with Winneke P and Nettle JA agreeing); May-Jordan v The Queen [2017] VSCA 30 [39] (Weinberg and Ferguson JJA).

[11] Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P) quoting Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA_)._

[12] R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306, 309-10 [13]-[15] (Maxwell P with Eames JA and Habersberger AJA agreeing).

[13] R v Torun [2015] VSCA 15 [57] (Whelan and Beach JJA).

[14] DPP v Dalgliesh [2017] HCA 41; (2017) 349 ALR 37, 51 [68] (Kiefel CJ, Bell and Keane JJ), 54-5 [81]-[84] (Gageler and Gordon JJ).

[15] Markarian v The Queen (2006) 228 CLR 357, 372 [30]-[31] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

[16] DPP v Lawrence [2004] VSCA 154; (2004) 10 VR 125, 132 [22] (Batt JA with Winneke P and Nettle JA agreeing); May-Jordan v The Queen [2017] VSCA 30 [39] (Weinberg and Ferguson JJA).