R v Soon [2008] NSWSC 622

New South Wales Supreme Court

CITATION : R v Soon [2008] NSWSC 622

HEARING DATE(S) : 14/04/08, 01/05/08

JUDGMENT DATE : 20 June 2008

JURISDICTION : Common Law

JUDGMENT OF : Michael Grove J

DECISION : See par 54

CATCHWORDS : CRIMINAL LAW AND PROCEDURE - manslaughter - particular facts and circumstances - sentence imposed

CATEGORY : Sentence

PARTIES : Regina - Crown Grace Soon - Offender

FILE NUMBER(S) : SC 2007/3376

COUNSEL : W L Robinson QC - Crown P Hamill SC - Offender

SOLICITORS : Solicitor for Public Prosecutions - Crown Giddy & Crittenden - Offender

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Friday 20 June 2008

2007/3376 REGINA v Grace SOON

SENTENCE 1 HIS HONOUR: Grace Soon, upon an indictment charging you with the murder of Stephen Chin, you pleaded not guilty but guilty to manslaughter. The Crown accepted that plea of guilty in discharge of the indictment and you have been convicted of manslaughter accordingly. The evidence shows that the Crown's position was founded upon an acceptance that at the time of killing, your relevant capacities were substantially impaired by an abnormality of mind. That such a situation may reduce what otherwise would be murder to manslaughter is recognized and made expressly available by legislation. I proceed on the basis that your culpability for manslaughter is in that category. 2 There has been put before the Court a volume of material adverting to matters of history which occurred prior to the killing as well as professional opinion concerning your level of culpability. I will later make reference to some of this. 3 You were born on 27 May 1937 and are therefore now aged 71 years. You were married in Singapore on 27 April 1967 to Stephen Chin whose date of birth was 4 April 1943. In an interview with police on 5 September 2006 you said that you were "Twenty something" when you married and that you have been separated from Stephen Chin for "about ten years". A considerable amount of information has been presented in terms which are vague or approximate and it should be appreciated that these have necessarily become reflected in some of these remarks. 4 From early 1999 you and your husband lived in different houses. Over the decade preceding that, you and he had lived separately but within the same premises. On 30 January 1999 Stephen Chin was rendered quadriplegic. The evidence is that he and another person were attempting to engage in a sexual act which involved unusual physicality. Stephen Chin fell a short distance and, in lay terms, he thereby broke his neck. As at September 2006 he was residing alone in one half of a pair of semi-detached cottages. He was dependent upon carers who attended him on a roster. They attended first thing in the morning, then for cleaning the premises, for lunch, to cook the evening meal, to empty his catheter bag and finally to put him to bed late at night. It was estimated that carers would call on about five occasions each day. Mr Chin was incapable of performing for himself most of the ordinary activities of daily life and, significantly, that of transferring himself from his bed. 5 On 4 September 2006 at about 6 am you went to his residence with two cans of petrol. You poured the contents of one of these onto the front fence and threw the other through Mr Chin's bedroom window and you set fire to the premises. The sound of burning material awakened the neighbour in the adjoining residence and she called the emergency services. Passing motorists stopped, one of them being a constable of police, in order to see if they could render assistance. They could not. The Fire Brigade arrived and had to force entry into the locked premises. They found the deceased in his bed from which, as I have said, he was unable to rise unaided. The post mortem report described the cause of death as "burns." 6 I shall refer to psychiatric opinion about your mental impairment in due course but I specify that I am satisfied beyond reasonable doubt that you were aware of your actions in starting the fire, that you intended to kill Stephen Chin thereby and that you knew that in his condition he would be unable to save himself from the conflagration. I am satisfied to a similar degree that your motive was to prevent him from pursuing a claim for settlement on him of any of your property as an ancillary to divorce proceedings. 7 The killing did not emerge from a spontaneous outburst of passion and you made plans to carry it out. Over the preceding month you were seen several times in the vicinity of his home and, when spoken to by neighbours, you gave false explanations for your presence. On one occasion you entered the residence and spoke to your husband seeking to persuade him in effect to cease having solicitors act for him in relation to the property settlement. A prime purpose in some other attendances was to inform yourself about the comings and goings of the carers so that you could set the fire in their absence. 8 You went to a shop in the Eastgardens Centre and purchased the portable petrol cans and went yourself to a service station to fill them. It was the usual custom for your son Eugene who resided with you to attend to routine filling of the tanks of his and your cars and your action in filling the cans is another indication of the deliberateness that you applied to the commission of the crime. You even wrote a reminder note to "buy petrol". 9 On 5 September 2006 you went to Mascot Police Station in response to a request for interview. You were initially informed that you were not under arrest. At that time, this was correct. You denied any relevant knowledge about the fire and gave a detailed but false description of movements on the morning on which it occurred. You either denied or said that you could not remember encounters with some of Mr Chin's neighbours. You prevaricated about your purpose for being there in respect of the one occasion which you admitted. The text of the record of interview with police shows an ability verbally to spar with the officers, seeking details about the content of questions and exercising your right not to comment or declining to answer concerning some topics. 10 In response to a direct question whether there was a property settlement attached to the divorce proceedings, which you had mentioned to police you said "Not that I know of. It hasn't started yet". The prospect of property settlement was uppermost in your mind and in fact inspired your crime. That answer was intentionally deceitful. However you did tell police that the deceased wanted some of your assets. You declined to tell police what the extent of your assets was. You said without offering detail that you had recently inherited some money from your parents. 11 It is convenient to interpolate some comment about apparent assets. Stephen Chin had been declared bankrupt in October 2004. His home was rented from the Housing Commission. A letter from his solicitors to your solicitors declared his total assets at the time to be $6,559. Your assets are not detailed. There is no information about the size of the inheritance which you mentioned to police. There are oblique references to palm oil plantations in Malaysia apparently managed by your brother for a corporation identified as Soon Moon Seng Realty. Soon Moon Seng was your father who died in 2004. Your mother is in a nursing home here in Sydney and the fees are said to be paid for by your brother but I do not know the source of the funds. Your son Eugene, who does not presently engage in employment, described himself on one occasion to policemen as an investor and he told them that you had some shares in "the company". I note references to several companies but the abovementioned was the only one identified. In evidence he said that no dividends were received. Your son Eugene apparently owns two properties which are let to rental. 12 An "auto titles" search at the Office of the Registrar General in Sydney revealed six properties in the name of Hwee Teong Soon. You are that proprietor. There are eight entries since 1971 in the same name in the purchasers index. That name is a non anglicised form of your name and I do not suggest that its use in lieu of Grace Soon was intended to disguise anything. Your son Eugene is also known as Chin Teck Meng. 13 It was said that some of your property was subject to mortgage but I was given no specific information in that regard. You declined to discuss your assets with police but your son estimated your nett worth to be in excess of $1 million, that his own worth was approximately $600,000 but he commented that, if you took away the house which his grandfather gave to you, you would not be "a millionaire". He described his grandfather as very rich and a source from which the deceased was able to be, by you, rescued from business ineptitude, profligacy and on one occasion from facing charges for defrauding the social security system. 14 The initial interview with police concluded at 5.12 pm. At 6.47 pm a further interview was commenced. In the interim you had been placed under arrest and cautioned in the usual way. In the course of this second interview you were shown closed circuit television footage from the Big W store at Eastgardens, which had been taken on 28 August 2006. The film showed you leaving the store with the petrol cans. You attempted to "brazen it out". You claimed not to recognize yourself and asserted that the image did not look like you. You were then taken to a larger television screen and again shown the footage and you responded to police that "it could not be me". 15 Police then produced a relevant receipt. You declined to sign it certifying it as a document which you were then shown. You declined voluntarily to provide your fingerprints, DNA sample or photographs and you asked whether you had an option about participating in a line-up and on being told that you did not have to, you also declined that. I am not suggesting that you did not have these rights to decline but I mention them to stress that you were far from being overborne by the police officers, whose conduct could not be criticized, and to contrast your obvious capacities shortly after committing the offence with some of your later presentations of seeming ineptitude, particularly when being seen by psychiatric examiners. 16 In this second police interview you continued to deny any involvement in the killing. 17 I am satisfied however that you came to realize that the evidence which the detectives had assembled would overwhelmingly demonstrate your guilt. As Detective Chambers was about to escort you from the interview room, you grasped his arm and said "Wait, sit down, I want to talk about it some more." He waited and you sat silently in the room. He then said "What do you want to talk about?" Your response was to say "I want to negotiate." 18 The continuing exchange between you and him should be recited. There was no challenge to Detective Chambers' description of what transpired and in the following quotation it is Detective Chambers who is referred to in the first person. The exchange was: "I said, 'I'm not sure what you mean, negotiate what? She said, 'Tell me again, what will happen now?' I said, 'You will wait in the charge room, while I complete some paperwork. Then you will be charged and you will go to Court tomorrow.' The accused sat silently. I said, 'Is that all?' She said, 'How much will this cost?' I said, 'I don't know.' Again the accused sat silently. I said, 'Okay Grace, can you please come with me.' She said, 'What if I confess?' I said, 'You will still be charged and you will still be going to Court tomorrow.' Again the accused sat silently. The accused pointed to the audio cassettes on the table and said, 'Can we cancel that interview?' I said, 'No.' The accused sat in her chair looking at me for a moment. I said, 'Were you involved in Stephen's murder?' She paused for a while and said, 'Yes.' I said, 'What happened?' She paused for a while and said, 'There are two tins of petrol, I take one tin and pour petrol on the wooden fence at the front, I forget what it's called and I light it with a match, and the other one I threw inside his bedroom window.' I said, 'Why did you do that?' She said, 'He is coming after my property, I worked so hard to save my money and now he is coming after my property.' I said, 'Are you prepared to participate in a further interview?' She said, 'Yes, but can we cancel that one.' The accused pointed to the audio cassettes on the table from the previous interview. I said, 'No that interview is evidence. But if you want to do another interview we can get a new set of tapes and conduct a further interview with you.' She said, 'Yes, okay.'" 19 A third formal interview was then undertaken. You were still manifesting sufficient self control to parry some of the questioning, for example when asked whether what you had said in the earlier interview was true, you responded "Oh, like which part?" However, you confirmed your confession, a significant description by you of what happened was in these words: "I opened the, the can and splashed the petrol on the fence and used a match to light it up and the other one, I opened and use up, used a newspaper to light up, the petrol and threw inside the, the window." 20 You were asked why you did this and I will quote an extract of your responses during this third interview. Again the interviewing officer was Detective Sergeant Chambers: "Q108 Uh-huh. Can you tell me why you did this? A He hurt me so much. He give me VD. He, he never supported me, half the time I had to support him and, and I was very frustrated that he spent all his money on prostitutes and homosexual and transvestites and I have to work so hard to save my money and now he is coming after my property and also he wants a divorce and life is quite comfortable after he wants to come and get what I have been trying to save up all my life and try to be independent. Q109 So how come, you've been separated for 10 years. How come you decided --- A I --- Q110 --- now to do this? A I didn't decide, he decided for me because he has spent all his money and then suddenly he decided that he wanted some money from me. And the problem is that maybe I was stupid, you know. I was a Christian and I didn't believe in divorces. Maybe I should have divorced him a long time ago. I was just stupid. Q111 So did he recent, is this divorce just recent? A Yes. Q112 Who's divorcing who? Is he divorcing you or you divorcing him? A He wanted my property first so my lawyer said if, if it's just property settlement it may take a year or so and all that. So my lawyer said why don't you, you divorce him and then usually is about a year then you can have property settlement. Q113 OK. So first off he tells you he wants to do a property settlement so because of that you divorce him. A Yes. Q114 When did all this happen? Is this recent? A Yeah. I think about 2, 2 months, 1 and a half months or --- Q115 So when did you decide you want to put the petrol in his house? A I don't know, all the, the frustration, you know accumulated all the, the hurt and the frustration and the agony and then suddenly, you know, I've been working so hard to, to, to make an independent life for myself and suddenly now he wanted everything. He wanted money from the Government because he's on pension and disabled pension and besides that he want my property too. So I don't know maybe in the moment might be when he --- Q116 Mmm. A --- and all the hurt, you know, the thing that brought about, you know, all the hurt and all the thing he had done to me mentally, physically and emotionally, so my brain just snap. Q117 And did you decide you want him dead? A Not actually. I don't know. … Q130 Do you know what his mobility is like? A … Q131 Can he walk? A No. Q132 How does he move around, in a wheelchair? A Yes. Q133 And he has carers every day, does he? A Yes, he's better off than me, he got one carer in the morning, one carer in the afternoon to cook for his lunch, one carer at night to cook for his dinner and one carer to put him to bed." 21 Your claims concerning Stephen Chin's past behaviour are corroborated and I have no doubt that your marriage had been most unhappy and for many years was nothing more than a sham. You had met your husband when you were both engaged in religious studies and your husband in due course entered the ministry. You rejected his requests to engage in an unnatural sexual practice and later discovered that, in a hypocritical contrast with his position as a minister, he had taken to visiting prostitutes. As a consequence at one stage he passed the disease of syphilis to you. You were both treated and as far as I can ascertain this occurred some time during the mid 1980's. 22 Stephen Chin had exercised religious ministry in Malaysia and Singapore between 1971 and about 1986 when you moved to Sydney. As earlier mentioned you lived under the same roof but separately and apart and this commenced from about 1987. Apparently with the financial assistance of your father, you financed Stephen Chin into a real estate partnership but the partners ejected him. He apparently obtained compensation of some $35,000 as a consequence but he did not refund any of this to you. There were other failed businesses including a cleaning service and shortly before the accident in January 1999, the operation of a convenience store at Redfern. Whilst in the real estate partnership, he continued to draw some social security benefits and you repaid to the Department some $8,000 and he was thereby enabled to avoid prosecution. 23 At one stage Stephen Chin had worked as a manager in Kings Cross. He had formed a relationship with a transvestite known as Rebecca Molloy. In fact his application to the Housing Commission for the rental property in which he ultimately died was made in the joint names of the deceased and Rebecca Molloy. These are the matters to which you were referring in the answers to police about your reasons for killing. 24 Your counsel argued that your conduct was inspired by a perceived need to "save face" and whilst that may have contributed to the situation when you apparently shared the same residence, it could not reasonably have affected the situation after you and the deceased commenced to occupy separate houses. 25 Your initial response to Detective Chambers was eloquent of your state of mind and I repeat that your words were: "He is coming after my property, I worked so hard to save any money and now he is coming after my property." 26 I reject the implication of the submissions on your behalf that the cumulating misconduct of Stephen Chin brought you to the point of deciding to eliminate him. I am satisfied that it was fear of the possibility that you might be obliged to share your assets with him as a result of a divorce settlement which determined your course of action and that your ruminations and expressions about his previous misconduct, hypocritical and in gross abuse of your marriage though it was, were agitated in order to seek to justify your intended, and later executed, action. 27 I turn now to make some reference to the psychiatric opinion on the basis of which you have been convicted of the lesser crime of manslaughter. I say at the outset that I accept the assessment that you do not pose a risk of future offending. That conclusion hardly requires psychiatric opinion as it is plain that you have removed the perceived source of a claim upon your assets. 28 The evidence includes reports from Dr Westmore and Dr Quadrio who saw you at the request of your solicitors, and from Dr Skinner who saw you at the request of the prosecution. As well there is a psychological assessment by Dr Reid. 29 I record that I have reservations about the evidence of Dr Quadrio. She appears to have accepted history given to her uncritically, even when there were obvious indications for doubt. For example, she records you as having a "traditional upbringing", your father believing that girls should remain at home. That version of history is contradicted by the facts. You left home in Malaysia for Singapore to study when a comparatively young woman and then proceeded to university in West Virginia in the United States well before your marriage. Significantly, and although it was not sought to advance it at a trial, Dr Quadrio expressed the opinion that you did not fully appreciate "the quality or the nature of the act" (of killing). Dr Quadrio expressed herself as referring to the McNaghten rules. I cannot find any evidence to support the proposition that you did not appreciate the nature and quality of your act which was of course setting a fire in circumstances when you knew that the deceased was in a bed and unable to move himself from it. On the day following the event, when you finally admitted to police what you had done, you were able to describe in detail what you did with each can of petrol. Your pre ignition preparations and your ability to describe what you did contradict an absence of knowledge of the quality of your act. It was not Dr Quadrio's opinion, as she expressed it, that you did not appreciate that what you were doing was wrong. It is the extravagance reflected in the level of handicap in the expressed opinion of Dr Quadrio which leads me to have the reservation which I have stated. 30 Dr Westmore saw you just three weeks after the killing. You claimed to him that you were not sure what charges you faced, which was in some contrast with your stance at the conclusion of the third police interview which terminated with your enquiry "Is that sufficient to convict me?" The consultation with Dr Westmore had, to say the least, some peculiar aspects. I extract from his report of 5 October 2006: "Lying on the desk when I examined her was the police charge sheet. She saw the three charges relating to malicious damage. She was very preoccupied that she may need to 'pay the insurance' in relation to the damage of the house by fire. I tried to explain to her that while those charges were very serious, they were perhaps far less serious than the charge of murder which she also faced. She repeatedly expressed concerns about the insurance issue."