Supreme Court New South Wales Medium Neutral Citation: R v Leung [2013] NSWSC 259 Hearing dates: 12 November 201214 November - 28 November 2012 8 March 2013 Decision date: 28 March 2013 Jurisdiction: Criminal Before: Price J Decision: Sentenced to a term of imprisonment of 8 years with a non-parole period of 4 years 6 months which is to commence on 26 July 2012 and is to expire on 25 January 2017. Balance of term of 3 years 6 months which is to commence on 26 January 2017 and will expire on 25 July 2020. The earliest date of eligibility for release to parole is 25 January 2017. Catchwords: CRIMINAL LAW - sentencing - unlawful and dangerous act - two prior acquittals - conviction at third trial - finding of special circumstances. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 s 21A(3)(b), s 21A(3)(e), s 21A(3)(f), s 21A(3)(g)-(h) Cases Cited: Hancock v R [2012] NSWCCA 200 Mill v R (1988) 166 CLR 59 R v Blacklidge (unrep, NSWCCA 12 December 1995) R v Hill (1981) 3 A Crim R 397 R v Isaacs (1997) 41 NSWLR 374 R v Khanas (1999) 108 A Crim R 499 R v Leung (No3) [2009] NSWSC 450 R v Macdonald (unrep, NSWCCA 12 December 1995) R v Pilley (1991) 56 A Crim R 202 R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199 R v PL [2012] NSWCCA 31 R v Previtera (1997) 94 A Crim R 76 R v Woodland [2001] NSWSC 416 Category: Sentence Parties: Crown Philip Wan Por Leung Representation: Counsel: Mr M Hobart SC (Crown) Mr W Terracini SC (Offender) File Number(s): 2008/6766 ReMARKs ON SENTENCE 1HIS HONOUR: Philip Wan Por Leung has been found guilty by a jury of the manslaughter of his partner, Mario Guzetti, on 7 April 2007. 2The maximum penalty for the crime of manslaughter is imprisonment for 25 years. 3It is my duty to determine the facts relevant to sentencing the offender. My view of the facts must be consistent with the verdict of the jury and the findings of fact I make against the offender must be arrived at beyond reasonable doubt: R v Isaacs (1997) 41 NSWLR 374. Matters of mitigation may be proved on the balance of probabilities: R v Pilley (1991) 56 A Crim R 202. 4During the trial and proceedings on sentence, Mr M Hobart SC appeared for the Crown and Mr W Terracini SC appeared for the offender. 5The offender and the deceased were in a homosexual domestic relationship and lived in a two story terrace dwelling at Alexandria. The dwelling was jointly owned by them. They had been in the relationship for about four years. The dwelling shared a common wall, with the adjoining premises that was occupied by Fiona Cunney and her family. 6About a month before his death, the deceased told Giovanni De Francesca, a friend, that his relationship with the offender was detiorating and he wanted to end it. He said that the offender was becoming aggressive and he was frightened of him. 7On 6 April 2007, the deceased spoke to Raymond Carter, who was a friend of both the deceased and the offender. The deceased said that he had argued with the offender who had stormed off. 8At about 8.15am on 7 April 2007, Mrs Cunney heard noises which she described as "crashing noises, like a shelf falling with pots and pans on it" and what sounded "like pan lids continuing to roll around", emanating from next door (T187). Mrs Cunney thought she then heard the deceased singing which lasted for about ten seconds. About ten minutes later, she heard the offender screaming and crying. She said that the crying continued, until an ambulance arrived. 9About this time, Guiseppa Di Franscesca telephoned the landline at the dwelling. The offender answered the telephone, crying. Mrs Di Francesca attempted to speak with the offender but he was incoherent. Believing something had happened at the dwelling, Mrs Di Francesca contacted her husband Giovanni by telephone. Mr Di Francesca arrived at the house and approached the front door. He could see the offender sitting at the end of the hallway with a pillow in his lap cradling the head of the deceased. The deceased's head was closest to the front door and his feet nearest the kitchen. 10Mr Di Francesca entered the dwelling. The deceased appeared to be dead. He described the offender as hysterical and observed him sitting with the deceased's body screaming (T308): "Mario, Mario, come back, Mario don't leave me. Mario, Mario come back, wake up Mario." 11Upon leaving the dwelling, Mr Di Francesca asked his daughter Laura to ring triple 0. Laura was informed by the triple 0 operator that a call had already been placed and an ambulance should be there soon. 12The offender had made a triple 0 call at 9.12.53am during which he said "I have a fight with my friend and my friend dead" (T419). 13When ambulance officers Lawrence Agars and Vijay Kaza entered the dwelling, they saw the offender sitting at the bottom of the stairs with his back to the front door. The deceased was laying on his back with his head elevated on a pillow in the offender's lap. The offender was rocking the deceased's head from side to side. He was crying hysterically and had to be moved away from the deceased. 14The ambulance officers observed that the deceased had a cross-shaped laceration on his right jaw. Mr Kaza noticed that the offender had blood on his hands, arms, and on his clothes. Mr Agars said that when the pillow was moved away from the deceased's head there was blood on it. He described seeing a small metal pot with a spout near the deceased's legs. 15The ambulance officers attempted to resuscitate the deceased, but stopped at about 9.46am when the ECG showed no heart activity. 16Police arrived shortly before the resuscitation attempt ceased and Senior Constable Simpkins assisted the ambulance officers with CPR. The police had found the offender about a metre from the deceased crying hysterically. He had stains on his shirt and hands that appeared to be blood. He was restrained. When the ambulance officers stopped CPR, the offender repeatedly said "Help my friend, they're not helping him!" (T60) He became increasingly agitated and tried to move towards the deceased. He was handcuffed so he would not contaminate the scene. The offender was taken by police to Redfern Police Station. Before entering the police vehicle and after being cautioned, the offender told police that he wanted his medication for depression. The offender was asked by Senior Constable Simpkins "what happened this morning?" to which he replied "we had a fight" (T64). When asked by the police officer "what was the fight about?", the offender answered "I want my medication" and made no further reply (T64). 17The offender had a conversation at the police station with Raymond Carter. Mr Carter described the offender as crying hysterically and repeating that Mario, the deceased, was not dead. When told by Mr Carter that the deceased was dead and that the police needed to know what happened, the offender said (T 163): "We had an argument ...I was making carrot juice with the juicer, Mario kept at me." 18Mr Carter gave evidence that the offender started crying and sobbing even more. The offender said something about the juicer but Mr Carter could not make out the exact words that were said. The offender then said "I was holding Mario" (T163). 19In the interview room, at about 3.30pm, Detective Hamill cautioned the offender and told him he was under arrest. The offender said (T315): "He is not dead. He is only in hospital. I didn't kill or murder him." Detective Hamill said: "No Mario's dead. Can you tell me what happened?" The offender replied: "I don't remember. We have breakfast. Mario argue with me. He criticise me a lot. Oh Philip, then my head started spinning but I don't know what happened." 20The offender declined to enter into a record of interview. He did not give evidence during the trial. 21Inspector Thompson who had entered the kitchen of the dwelling at about 10am noticed that there was gyprock or white paint on the kitchen floor. 22Detective Griffin, a crime scene examiner, attended the premises at about 1.28pm. His observations included seeing a disassembled fruit juicer on the kitchen sink area, the plastic container of which appeared to contain carrot pulp. In the kitchen garbage bin was what appeared to be further carrot pulp. He observed a portion of brickwork and render was missing from the western wall above the doorway. The damage appeared to him to be fresh, as there was orange coloured staining near the damage that appeared to be wet carrot pulp. 23Detective Griffin said that the deceased's body was located at the base of the stairs. The deceased was laying on his back with his feet to the east and the juicer container (trial ex D) was in close proximity to him. The indentation in the kitchen wall was consistent with an object (such as the juicer container) being thrown at the kitchen wall. 24An open white painted doorway was adjacent to the deceased's head. Located on both of the vertical sides of the doorway and on a portion of the northern wall was staining that appeared to be blood. This was later confirmed to be the deceased's blood. 25Detective Griffin located a blood smear along the staircase handrail that was approximately 1½ metres off the ground. The blood smear tested positive for blood but DNA testing was unsuccessful. 26The DNA of the deceased was found on the juicer container as was a fingerprint of the offender. 27An autopsy was conducted by Dr Botterill, who considered that the cause of death was most probably the consequence of head injury. He identified 16 specific injuries. Dr Botterill examined the deceased's brain which showed changes consistent with blunt force head injury. Dr Botterill's findings as to the deceased's brain were confirmed by Dr Michael Rodriguez, a Neuropathologist. Dr Botterill was of the opinion that, although any of the individual injuries might be associated with a simple fall, the extent of distribution of the injuries was more in keeping with multiple blunt force contacts. He opined that it was possible that the neck bruising and chest injuries were related to the application of force to the neck, but no discrete ligature marks or eyeball haemorrhages were identified. 28Dr Botterill went to the dwelling and inspected the stairs. He was of the opinion that the extent of the injuries to the front of the chest, the neck and over the head would not be occasioned by a simple fall down the six lower steps from the landing. As to a fall from the top of the stairs, he said that he could not recall in any case that he had been associated with anybody having a fall of that complexity. In relation to the position where the deceased was found, Dr Botterill said (T226): "I don't believe it is possible to fall down the stairs and be in a position as seen in that photograph." 29Dr Botterill gave evidence that the features of the wound to the deceased's chin were not specific enough to enable him to say that the wound must have necessarily been caused by the spout of the juicer container, but that was a possible explanation. The wound itself may have been the result of one or more blows to the same area. He said that it was certainly possible that the injury to the inside of the mouth could have been occasioned by force being applied by the juicer container. The injury to both sides of the head, the blood over the surfaces of the brain, and the bruising to the deeper part of the brain seen by Dr Rodriguez were consistent with a fall by the deceased onto the back of his head. They were also consistent with the deceased, after being struck by the juicer container which caused injury to the mouth, falling over and hitting his head on a wall and the floor. 30The Crown case at trial was that the offender struck the deceased with the juicer container not only once but several times causing him to fall over and hit his head causing brain damage, that the offender tried to strangle the deceased and also struck and beat him with the juicer container in the chest area. The Crown put to the jury that the cross-shaped laceration to the right jaw was caused by the offender striking the deceased more than once in that area, causing the wound to become more complex and blood to spatter behind him. It was the Crown case that those acts of the offender, in combination, caused the deceased's death and that those acts were deliberate, unlawful, and dangerous. 31Professor Duflou and Professor Hilton gave evidence in the offender's case. Professor Duflou did not think that the deceased had been strangled. He said that he would be extremely hesitant to even raise the possibility of a strangulation in the absence of petechial haemorrhages and in the absence of injury to the bony structures of the neck. He believed that the cause of death was most likely to be head injury. There was brain damage and there had been a couple of impacts to the head. The head injury was a blunt force type injury of a diffuse nature. Professor Duflou said that he did not know how that injury was caused. 32Professor Duflou testified that the injury to the deceased's chin could have been caused by coming into contact with the solid wooden bollard at the end of the staircase. He explained that falls down stairs are invariably complex and are not a straight-forward single fall. He said that there can be multiple interactions with surfaces. Professor Duflou opined that the injuries to the back of the deceased's head could have been caused by the fall. He expressed the opinion that the grazes and bruises in the chest area could be the result of being struck or scratched in that area, possibly the clothing pulled or it could be an attempt at resuscitation, certainly not expert resuscitation by any stretch of the imagination. 33Professor Hilton expressed the opinion that the cause of the deceased's death was unclear. He was concerned about the possibility of heart attack being an explanation for the death. He did not consider that the cause of death was strangulation. Professor Hilton opined that the injuries to the deceased's head could have been caused by the head impacting the solid timber structure of the staircase. He said that a simple fall, unless it was against some object, would not support the entire complex of bruising on the lower neck and upper chest of the deceased. However, he would not say that these injuries were absolutely inconsistent with a fall. 34By their verdict, the jury rejected as a reasonable possibility that the deceased's death was not caused by an act of the offender but by a fall down the stairs, or because of a heart attack or other cardiac event, or by any other cause. The jury was satisfied beyond reasonable doubt that following an argument with the deceased, when the offender had been making carrot juice, the offender in anger attacked him and caused his death and that the offender's acts were deliberate, unlawful, and dangerous. 35The crime of manslaughter has always been recognised by the law as a most serious crime: R v Hill (1981) 3 A Crim R 397 at 402. The value, which the community places upon the preservation of human life, is reflected by the need to have the conduct denounced by a sentence appropriate to the circumstances of the case: R v Macdonald (unrep, NSWCCA 12 December 1995). The starting point in the present sentencing exercise as in all offences of manslaughter is that the life of Mario Guzetti has been unlawfully taken: R v Blacklidge (unrep, NSWCCA 12 December 1995). 36The Crown invites me to find that the offender struck the deceased severely in the area of the chin, with the juicer container, and then at least one further time in the region of the face; that he also struck the deceased several times on the chest area; that he also caused injury to the deceased's neck region, leaving severe neck bruising; and the deceased fell backwards, injuring the back of his head and causing brain damage. The Crown contends that this case was far more serious than where death was caused by a single punch, as there was a sustained attack on the deceased. 37Mr Terracini submits that the precise foundation of the jury's verdict is unknown and it would be difficult for the court to make precise findings such as the number of blows and precise cause of death. Mr Terracini put to me that the finding that could be made "is that there was an attack upon the deceased and that as a result of that attack he died in circumstances where there was obviously ...an aggressive attack" (TOS 11). I am unable to accept this submission. 38I am satisfied beyond reasonable doubt that the offender struck the deceased with the juicer container in the area of the chin and mouth causing him to fall onto the back of his head causing brain injury and death. Consistent with the jury's verdict, there is no other rational explanation for the wound to the deceased's chin. 39I reject the contention that was advanced for the offender during the trial that the injuries to the deceased's chest area could have been caused by vigorous attempts by the ambulance officers and Senior Constable Simpkins to resuscitate the deceased. All of these officers were trained to perform CPR and Professor Duflou did not think that the grazes and bruises to the chest area could be the result of expert resuscitation. There is no evidence that the offender attempted to resuscitate the deceased. I am satisfied beyond reasonable doubt that the offender struck the deceased with the juicer container several times to the chest area, causing the multiple curved and relatively straight grazed areas of bruising identified by Dr Botterill as injury number 8. 40The Crown has not established to the criminal standard that the offender attempted to strangle the deceased as there was absence of injury to the bony structures of the neck and of petechial haemorrhages. I do not find that the offender depressed the deceased's vagal nerve in the carotid artery causing vagal inhibition. 41This was a violent attack carried out in anger by the offender upon his 71 year old partner and exposed the deceased to a high risk of serious injury. It is an objectively serious offence of manslaughter. 42Consistent with his plea, the offender has neither expressed remorse or shown contrition for the offence. His sentence is not to be increased for that, but no allowance in mitigation can be made for remorse or contrition. 43I take into account as a mitigating factor that the offender does not have a record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. He was born on 1 August 1960 and was 46 years old when the offence was committed and is now 52 years old. The offender's personal background, to which I refer at [47] - [49] below, discloses the industry that he displayed in establishing himself in Australia, notwithstanding his challenging childhood in China and Hong Kong. Mr Carter and Ronald Johnson gave evidence during the trial of the offender's good character and written character testimonials from them were tendered during the proceedings on sentence. I accept that the offender was a person of good character, which is a mitigating factor: s 21A(3)(f) Crimes (Sentencing Procedure) Act. 44Although the offender has not expressed remorse, his lack of previous convictions and good character strongly suggest that he is unlikely to re-offend and has good prospects of rehabilitation. I consider that the offender is unlikely to re-offend and has good prospects of rehabilitation, which are mitigating factors: s 21A(3)(g)-(h) Crimes (Sentencing Procedure) Act. 45Accordingly, personal deterrence does not have a significant role to play in my sentencing task. However, there is to be a measure of general deterrence in the sentence. 46Another mitigating factor is that the offence was not planned, but was committed impulsively following the argument: s 21A(3)(b) Crimes (Sentencing Procedure) Act. 47The offender did not give evidence during the proceedings on sentence. His subjective circumstances are drawn from the history provided to Dr Jonathon Adams, a psychiatrist, which is detailed in the report dated 5 March 2013 (ex 1). The offender was born in Shenzhen China and attended school between age 8 and 14 years. Following his mother's death when he was 14 years old, he escaped to Hong Kong to join his father, who he had not previously seen. His father wanted him to be a mechanic, which he did for approximately two weeks. He stopped working as a mechanic, which angered his father and the offender ran away from home. The offender began an apprenticeship in ivory carving, studied English at night and supported himself until he moved to New Zealand in 1984. He was employed carving Jade for approximately four years prior to moving to Sydney. 48The offender was employed by different jewellery companies in Sydney prior to beginning his own jewellery business in 1994. He continued to run his own business until he was assaulted and stabbed on 11 June 2005, which resulted in the loss of his left eye, nerve damage, and back pain. The offender described a deterioration of his mental health after the assault, that he was depressed and antidepressant medication was prescribed. His mental health improved after six to seven months, which the offender attributed to the deceased's support. He has been in receipt of a disability support pension and has not returned to paid employment after the assault. 49The offender and the deceased had resided together from 2003 onwards. He told Dr Adams that their relationship was "very happy" and made frequent reference to the deceased as being his primary support person (ex 1 p5). 50The offender related to Dr Adams that his mental health deteriorated following the death of the deceased and being charged. Antidepressant medication was continued whilst he was incarcerated. He reported his mood state when he was released from custody as generally being "no good at all" (ex 1 p6). He described marked fluctuations of mood over the last five years, with periods lasting several months during which he felt "depressed...terrible" (ex 1 p6). He linked his worst periods of mood to the periods leading up to and "during the two trials he went through" (ex 1 p6). During these periods, he described a worsening sleep pattern, energy deterioration, lower motivation, concentration impairment and intrusive ruminating negative cognitions. He began to "self medicate" (ex 1 p6) with increasing use of alcohol and illicit substances, but after six months he used alcohol less frequently. The offender described how on the two occasions he was acquitted his mood improved briefly, and how his emotional state rapidly deteriorated when he learnt of the appeals. His level of functioning over the years had "just" been living "day by day" (ex 1 p6). 51Dr Adams reported that the offender told him that he had remained compliant with anti-depressant medication and had been seeing a psychologist in Redfern on a regular basis. When he went into custody the offender was initially prescribed antidepressant medication, but he decided to stop taking his medication a few months ago. 52Dr Adams expressed the opinion (at ex 1 p9) that "the description [the offender] gave of experiencing recurrent sustained periods of low mood (concurrent with disturbance of sleep, appetite, energy, concentration, motivation, and enjoyment of activities), anxious ruminations, and ideas of suicide, is in keeping with recurrent episodes of major depression. The account [the offender] provided portrayed a nexus between his periods of low mood and the recurring legal proceedings (two previous trials and two previous appeals)." Dr Adams was concerned that the offender had ceased antidepressant medication. He opined that the offender would benefit from psychiatric review and follow up and that consideration should be given to the reintroduction of antidepressant medication. 53During oral submissions, Mr Terracini told me that Dr Adam's report disclosed "no recognised psychiatric illness" (TOS 5). Dr Adam's report, however, does reveal the offender's depression following the assault in 2005 and the impact the tortuous course of the criminal proceedings has had upon him. 54A short history of the proceedings is as follows; On 4 May 2009, Rothman J directed the jury to return a verdict of not guilty to murder and manslaughter: R v Leung (No3) [2009] NSWSC 450. A new trial was ordered by the Court of Criminal Appeal on the charge of manslaughter on 8 October 2009, but the acquittal on the charge of murder was affirmed: R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199. Adams J directed a verdict of acquittal on the charge of manslaughter on 28 April 2011: R v Leung [2011] NSWSC 785. On 20 March 2012, the Court of Criminal Appeal quashed the acquittal and ordered a new trial: R v PL [2012] NSWCCA 31. On 14 November 2012, the jury was empanelled and a verdict of guilty was returned on 28 November 2012. The offender was found guilty of manslaughter at his third trial. 55The applicant was in custody until conditional bail with triweekly reporting conditions was granted on 7 August 2007. A further grant of conditional bail with once weekly reporting was granted on 20 March 2012. 56It is hardly surprising that the fluctuating outcomes of directed acquittals at trial and reversal upon appeal have had an adverse psychological effect on the offender. The offender has been left in uncertain suspense for almost six years. Furthermore, throughout much of this time, his liberty has been restricted by bail conditions. Notwithstanding the offender's pleas of not guilty, I do not think that the delay can be attributed to him. There are many cases that deal with delay, as a mitigating circumstance: see for example Hancock v R [2012] NSWCCA 200 [23]; R v Khanas (1999) 108 A Crim R 499; Mill v R (1988) 166 CLR 59, but it seems to me that the present circumstances are unique as the delay was associated with the emotional highs of two favourable trial outcomes and disappointment in the results of the appeals by the Crown to the Court of Criminal Appeal. However, it is important to observe that the Crown was not entirely successful on appeal, the verdict of not guilty to the most serious charge of murder being affirmed. Given the history of the proceedings and adverse psychological impact upon the offender, considerations of fairness call for leniency being extended to him, which I propose to reflect in a finding of special circumstances, justifying a variation between the non-parole period and the balance of the term of sentence. 57I further find as special circumstances, his physical disability and need for psychiatric review and treatment. 58Enzo Guzzetti the deceased's brother read a victim impact statement to the court. The contents of the statement cannot be used by me to increase the offender's sentence: R v Previtera (1997) 94 A Crim R 76. I acknowledge the grief and distress of the deceased's relations and express on the community's behalf its sympathy and compassion for them. 59Mr Terracini drew my attention to Judicial Commission sentencing statistics for offences of manslaughter (ex 3) but the limited use that may be made of these statistics is further diminished by the wide embrace of offending that might amount to the crime of manslaughter: R v Woodland [2001] NSWSC 416 at [27] - [30]. In written submissions, Mr Crown referred to various cases. Although I have found all of this material to be of assistance, each case depends on its own facts. 60Having considered all possible alternatives, I am satisfied that no sentence other than full time imprisonment is appropriate. The parties agree that at the time of the proceedings on sentence, the offender had spent a total of seven months and 14 days in custody. Twenty days have elapsed from proceedings on sentence, which is to be added to the time he has been in custody. Accordingly, his sentence will be backdated to commence on 26 July 2012. 61Philip Wan Por Leung for the offence of manslaughter, I sentence you to a term of imprisonment of 8 years with a non-parole period of 4 years 6 months which is to commence on 26 July 2012 and is to expire on 25 January 2017. I set a balance of term of 3 years 6 months which is to commence on 26 January 2017 and will expire on 25 July 2020. 62The earliest date of eligibility for your release to parole is 25 January 2017. ********** 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. Decision last updated: 28 March 2013