New South Wales Supreme Court CITATION : R v Qinglin CHEN [2010] NSWSC 64 HEARING DATE(S) : 12 October 2009-14 October 2009, 16 October 2009, 19 October 2009-21 October 2009, 11 December 2009 JUDGMENT DATE : 12 February 2010 JUDGMENT OF : Rothman J DECISION : Sentenced to imprisonment for a non-parole period of 17 years and 6 months commencing 1 October 2007 and concluding 31 March 2025, the balance of the term of imprisonment being a further 5 years and 10 months, concluding 31 January 2031. Eligible for release on parole on 31 March 2025. CATCHWORDS : CRIMINAL LAW – sentence – murder – underlying incipient psychosis – particular facts – no issue of principle – sentence imposed CATEGORY : Sentence PARTIES : Regina (Crown) Qinglin Chen (Offender) FILE NUMBER(S) : SC 2008/16103 COUNSEL : T Thorpe (Crown) I McClintock SC (Offender) SOLICITORS : Office of the Director of Public Prosecutions (Crown) Legal Aid (Offender) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST ROTHMAN J 12 FEBRUARY 2010 2008/16103 R v Qinglin CHEN SENTENCE 1 HIS HONOUR: On 29 September 2007, Qinglin Chen strangled and/or choked Ms Wenfang Chi and killed her. Mr Chen was charged with murder. He pleaded not guilty to murder, but guilty of manslaughter, and, the Crown not accepting this plea in full satisfaction of the indictment, the only issue at trial was whether the Crown had proved, beyond reasonable doubt, that Mr Chen possessed the requisite intention at the time that he killed Ms Chi. 2 On 21 October 2009, a jury found Qinglin Chen guilty of murder. Essentially, the Crown proved intent of the requisite kind, in circumstances where, it was said, Mr Chen was both drunk and suffering from a mental disorder. 3 To understand the crime, if it be possible to understand, it is necessary to examine the relationship between Mr Chen and the deceased. Each were Chinese nationals who met and married in China. The evidence before the Court is that the deceased's parents caused the couple to separate and to divorce. Notwithstanding their separation, the couple continued as lovers. 4 Ms Chi came to Australia as a student and Mr Chen was admitted as her spouse, to which Ms Chi attested to immigration officials, and, on the evidence before the Court, it is clear that, notwithstanding their divorce, they continued in a de facto relationship. Mr Chen, at all relevant times, referred to Ms Chi as "his wife". 5 The attitude of Ms Chi's parents created difficulties. It seems that the pressure they imposed on Ms Chi caused the divorce and also caused Mr Chen and Ms Chi to hide their de facto relationship from Ms Chi's parents. In Australia, the couple lived together but had separate addresses "for appearance sake". Further, Ms Chi's parents, without knowledge of the continuing relationship between the couple, were arranging for Ms Chi to meet, and possibly to marry, others in China. Ms Chi communicated with one or more of these persons, by email. Ms Chi was due to return to China shortly after the date of her death. 6 The events on the night of 29 September 2007 are relevantly uncontroversial. As earlier stated, Ms Chi and Mr Chen had separate addresses. The deceased's address was in Rydalmere. Mr Chen's address was in Berala. They were at Ms Chi's place. Mr Chen had drunk red wine. He usually drank even less than a social drinker and did not partake of alcohol without the permission of Ms Chi. On this night, Ms Chi gave permission and Mr Chen drank. They went upstairs to her bedroom, where Mr Chen strangled Ms Chi. He did so with his bare hands. He then picked her up, put her in a car, drove just over 8 km to his own premises, put her into bed, and surrounded her (and covered her) with a blanket and ice. Mr Chen also surrounded Ms Chi's body with flowers and her favourite food. This, apparently, is a Chinese custom in treating a deceased. The drive from Ms Chi's premises to his own required Mr Chen to drive through and/or across major thoroughfares (for example, Silverwater Road). 7 That which is controversial is the amount that Mr Chen drank, whether he was drunk and whether that, together with an alleged psychiatric issue, affected the commission of the offence. Further, it is necessary to determine whether, and to what extent, such issues affect the sentence to be imposed. 8 The evidence as to the amount that Mr Chen consumed prior to the murder is, at best, ambivalent. Mr Chen described the amount in one or more interviews. No exact calculation could be taken from that description. The red wine was consumed from a cask. It was submitted that the Court could calculate the amount that Mr Chen had consumed by deducting from the amount held in the cask, the amount left remaining. The difficulty with such a course is that the cask had been in the kitchen for some days before the murder, and remained in the kitchen for some days after the murder. It is no more probable that Mr Chen drank all that had been consumed from the cask on the night of the murder than by him at any other time or by any number of other people. 9 Mr Chen did not give evidence in the proceedings. In statements made to the police and others, Mr Chen maintained that he had no memory of what occurred. However, Mr Chen did have a memory of a number of incidental and surrounding events, which seem inconsistent with the version, otherwise given, that he had no memory. For example, in one such statement, Mr Chen stated that he had killed Ms Chi with his bare hands. That knowledge, if it were knowledge, is inconsistent with having no memory of the events. Further, it took experts significant time and much effort to determine whether Ms Chi had been strangled using bare hands or a chord. As a consequence, the Court does not accept the inference, suggested by defence counsel, that the statement of Mr Chen that he had killed Ms Chi with his bare hands, was merely supposition on his part. 10 Mr Chen's version of events was that he fell asleep and woke next to Ms Chi. He may well have. And that may well point to his state of inebriation at the time of the murder. But the jury found him guilty. Necessarily, he had the intent, at least, to inflict grievous bodily harm. Mr Chen was not so drunk that he did not know what he was doing. If it be necessary to form an opinion independently of the verdict of the jury, I find proved, beyond a reasonable doubt, that Mr Chen knew what he was doing and intended, at least, to inflict grievous bodily harm. 11 There is no evidence, or no satisfactory evidence, as to the motive for this murder. Of course, the absence of evidence of motive is not the same as evidence of the absence of motive. There are a number of possibilities. It may be that Mr Chen could not stand the thought of Ms Chi returning to China and, at the insistence of her parents, involving herself in a relationship with another. Given the absence of any serious defensive injuries, it may be that Ms Chi acquiesced, or even promoted, the action. It may simply be that the psychiatric issues were predominant, and there was no motive. We will never know. 12 Given the nature of this particular offence and the circumstances of its commission, whether Mr Chen's intent was to kill or to cause grievous bodily harm does not seem to make a substantial difference to the objective seriousness. Ordinarily, it would. But it is clear that, whatever the motive and whatever the intent, this offence arises out of a domestic relationship and, further, it seems, not from some predetermined callous plan. Further, the domestic relationship to which I refer, was not otherwise abusive, and Mr Chen has otherwise displayed no violent or abusive behaviour. This, then, leads inexorably to a consideration of the subjective circumstances of Mr Chen. 13 Mr Chen has no previous criminal record either here or in China. He is otherwise of good character and the offence is, in large measure, inexplicable and, certainly, out of character. Mr Chen is both contrite and remorseful. There is little doubt that, if he could be given the time again, to the extent that he knew what he was doing, he would not have done it. 14 The evidence is clear that Mr Chen suffers psychosis. In late 2008, Mr Chen had a major psychotic episode. There was some controversy as to whether the psychosis is schizophrenia, and, as a consequence, whether he was experiencing a prodromal episode (a precursor to schizophrenia) at the time of the commission of the offence. He is currently medicated for the psychosis. I take into account the existence of this psychosis and the mental condition of Mr Chen, as a mitigating factor. 15 I accept that Mr Chen had an underlying incipient psychosis that became manifest in 2008 and, more probably than not, affected his behaviour and his attitudes at the time of the offence. I do not accept that he was experiencing a prodromal episode when he committed the murder, but I do take into account the incipient psychosis from which I consider he was suffering at the time. 16 Mr Chen is not entitled to a discount for a plea of guilty. Nevertheless, the lack of a plea of guilty to murder is not a sign that Mr Chen was not fully contrite and remorseful. Further, Mr Chen voluntarily attended at the police station, informed the police of the offence and otherwise cooperated, not only with the police investigation, but in the manner in which the issues in the trial were agitated. This is significant evidence of remorse. I allow in mitigation the benefit of the assistance that has been given to the police investigation. However, I take into account, in that regard, that the offence would have been otherwise discovered. 17 There are no aggravating factors, which are not taken into account in the offence itself. On the other hand, as already stated, the offence was not part of a planned or organised criminal activity, Mr Chen has no criminal record, Mr Chen is a person otherwise of good character, who is unlikely to reoffend and who has good prospects of rehabilitation. 18 Mr Chen was 29 years of age at the time of the offence. There is a degree of immaturity in his conduct and his attitude, but I do not take account of his age as a mitigating factor for the purpose of calculating the sentence. Conclusion 19 The maximum sentence for murder is life imprisonment. The standard non-parole period is 20 years imprisonment. In setting an appropriate punishment for the criminal conduct involved in this offence, the Court has in mind: the protection of society; the deterrence of this particular offender; the deterrence of other offenders, who might be tempted to offend; retribution; and reform. These purposes overlap and, to some extent, pull in different directions. 20 I do not consider that specific deterrence is a substantial issue in the case of Mr Chen. As earlier stated, there are good prospects of rehabilitation and Mr Chen is otherwise of good character. But murder is the most serious crime. It involves the felonious taking of human life. It must be punished by a custodial sentence of sufficient length to display society's view of the sanctity of human life, with which it is concerned. The victim, Ms Chi, was 25 years of age, a recent graduate, who would have taken over her father's business and who had her whole life to enjoy. This was denied to her by the actions of Mr Chen. Further, she had a family, parents in particular, who have now lost a lifetime of enjoyment with her. These are all aspects of why society treats murder so seriously. 21 Overall, and particularly given the subjective circumstances and psychiatric condition of Mr Chen, and all of the other factors already mentioned, I consider that the offence is very slightly below mid-range in seriousness. This, of course, is not a reflection of the crime of murder, but rather a comparison of this murder, with the range of conduct that may amount to that offence. 22 Further, Mr Chen speaks little or no English. His conditions in custody are likely to be more onerous because of these language difficulties and because of his isolation. As is obvious from the foregoing, Mr Chen did not come to Australia for the purpose of committing this offence, but rather, it seems, the idea of Mr Chen and/or Ms Chi leaving Australia may have been a catalyst in the commission of it. 23 The submissions on behalf of Mr Chen request a finding of special circumstances, however, it seems that such a finding would be to double-count issues already factored into the sentence that I intend to impose. In a sentence of this magnitude, there is more than sufficient time for rehabilitation to be effective, without extending the permissible parole period by reducing the non-parole period. Mr Chen has been in custody since his original arrest on 1 October 2007 and his sentence will date from then. 24 Qinglin Chen, you are convicted of murder in that, on 29 September 2007 at Rydalmere in the state of New South Wales, you did murder Wenfang Chi. I sentence you to imprisonment for a non-parole period of 17 years and 6 months commencing 1 October 2007 and concluding 31 March 2025, the balance of the term of imprisonment being a further 5 years and 10 months, concluding 31 January 2031. You are first eligible for release on 31 March 2025. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.