R v Wong [2015] NSWSC 1612

Supreme Court New South Wales

Medium Neutral Citation: R v Wong [2015] NSWSC 1612 Hearing dates: 11 September 2015 and 30 October Date of orders: 30 October 2015 Decision date: 30 October 2015 Before: RS Hulme AJ Decision: Imprisonment for a non-parole period of 16 years and 6 months commencing on 28 June 2014 together with a balance of term of 5 years and 6 months commencing on 28 December 2030. I record as the first date upon which it appears to the Court you will be eligible for release on parole is 28 December 2030 Catchwords: CRIMINAL LAW – sentence – murder – jury's rejection of self defence and provocation do not necessarily involve rejection of Prisoner's evidence – planning not of, but that led to, offence – frenzied attack does not necessarily show an intent to kill Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: R v GWM [2012] NSWCCA 240 R v KJS [2011] NSWSC 1690 R v Maglovski (No 2) [2013] NSWSC 16 R v O'Connor [2008] NSWSC 1297 R v O'Donnell [2009] NSWSC 42 Tran v R [2011] NSWCCA 116 Category: Sentence Parties: Regina Kin Yee Wong Representation: Counsel: Mr P Kerr (Crown) Mr I Todd (Prisoner)

Solicitors: Solicitor for DPP (Crown) Legal Aid NSW (Prisoner) File Number(s): 2014/00192749

Judgment 1. On 11 September 2006, the Prisoner killed Deng Cheng Li. On 11 September 2015, after some 2 weeks of hearing a jury convicted the Prisoner of murder. It now falls to me to sentence him. I instruct myself that any conclusions I reach must be consistent with the jury's verdict, and that I must be satisfied beyond reasonable doubt of any further findings I make adverse to the Prisoner, but that in the case of findings that operate by way of mitigation, it is sufficient if I am satisfied of them on the balance of probabilities. 2. The circumstances of and leading up to the killing were as follows. 3. The Prisoner was born on 27 August 1985 and is a citizen of Malaysia. He came to Australia in March 2006 to participate in a course called mechanical engineering. Before the course was completed, he and others in it were told it could not be continued but if they continued to pay fees their visas could be extended. Somehow or other the Prisoner effected an extension of his visa, accepted a recommendation to go to Wagga Wagga and did so. In June 2006, he found work there at a Chinese restaurant called "Noodle Paradise" conducted by Mr Li, the deceased. 4. The Prisoner continued working there until shortly prior to the death of the deceased, cooking, preparing food and cleaning up etc. He was paid a wage which increased during the period of his employment to $700 per week from which $100 was deducted for accommodation provided to him on the premises. In fact he and the deceased each had a bedroom behind the restaurant. One of two toilets nearer the rear had been rigged up to provide some sort of washing facilities. 5. According to the Prisoner, initially his relationship with the deceased was good but it deteriorated after some time. The Prisoner contended that the deterioration was a consequence of events that happened to Mr Li during a trip to Melbourne, but certainly in the latter days of his employment, Mr Li was dissatisfied with the Prisoner's work performance. There is evidence that suggests the dissatisfaction was justified though this may not have been recognised by the Prisoner. 6. The Prisoner worked on Friday, Saturday and Sunday, the 8th, 9th and 10th September. Monday was the one day in the week that the Prisoner normally had off. According to the Prisoner, on the evening of the 9th and after all the other employees had left, the deceased informed the Prisoner that Monday would be his last working day in the restaurant. 7. The Prisoner's wages were paid in cash and there was no evidence to suggest there was any formal record of them. According to the Prisoner, at the time he was given notice he had not been paid for some weeks, the deceased having said that business was bad and he didn't have money to pay the Prisoner. In his ERISP the Prisoner said that it was two weeks for which he had not been paid. In evidence he said it was three weeks. 8. On 14 August, the Prisoner had bought a computer and thereafter, except for a few days, the Prisoner had virtually no money in his bank account. 9. The Prisoner said that on hearing his employment was terminated he felt angry and upset – more upset than angry because he had wanted to work until the expiry of his visa. On the Monday, the Prisoner rang Austrian Airlines to book a flight back to Malaysia and Countrylink to book a seat on the XPT to Sydney. In a recording of the latter call which occurred shortly after midday on the Monday, the Prisoner is heard to say, "I can't pay before 5 at night… cause my boss pays me during the night time, 9 o'clock". 10. The Prisoner said that during the afternoon the thought occurred to him of tying the deceased up or having the deceased tie himself up so the Prisoner could be assured of payment, and then phoning from Sydney to ensure the latter's release. In fact the Prisoner seems to have equipped himself with a ball of string that was found in his clothes. 11. After the restaurant closed on the Monday night, the deceased drove some of his other employees home and while the deceased was away the Prisoner secreted a knife in the restaurant cool-room. His intention was to scare the deceased into complying with the tying up. 12. On the deceased's return, the Prisoner asked him for his wages. The deceased passed over a transparent bag that the Prisoner said felt as if it had only $500 in it. The Prisoner protested that that was not enough and was met with a response, "No money, the business no good". After some minutes of argument the Prisoner noticed a bunch of coins on a table. He moved to possess them. The deceased stood and then, using two hands, pulled the Prisoner by his collar, threw the Prisoner on a bed and told him to get out of the shop and go back to his own country. The Prisoner's account of being so handled by the deceased derives some support from the deceased's DNA being found on the collar of the Prisoner's shirt. 13. The Prisoner was then released. He returned to his room where he thought for a time, grabbed the ball of string that was there and returned to the deceased's bedroom, inviting him to tie himself up. The deceased told the Prisoner on at least two occasions he was crazy. The Prisoner then went to the cool room and obtained the knife. He returned to the deceased's room, showed him the knife and again asked the deceased to tie himself up. 14. The deceased responded by taking hold of a folded chair and rushing towards the Prisoner. According to the Prisoner he ran into a more open area and tripped with the deceased on top of him. The Prisoner said that the deceased's hand was around his throat, he was being choked, his vision was dimming and, frightened that he would pass out or die, stabbed the deceased under his armpit with the Prisoner's right hand. A little later he stabbed the deceased somewhere in the middle of his chest and said these were the only two occasions of stabbing that he remembered. After the second stabbing the deceased removed his hand and the Prisoner stood up. 15. A little later the deceased collapsed and the Prisoner pulled him into a nearby toilet and then went in search of money. He took $600 to the deceased's pocket, the $500 he had been offered and on a couple of occasions he went to the till in the restaurant, finally succeeding in opening it. 16. In the midst of these activities the Prisoner also interfered with the deceased's computer and which was controlling a CCTV system in the premises. For a time that system did not work but the computer was programmed so the system would reboot after a period. It did and the Prisoner's acting in and adjacent to the cool room and stealing from the till were the subject of recordings that were tendered in evidence. 17. The Prisoner then left the shop, boarded a train to Sydney and then boarded a flight to Malaysia. In 2014 the Malaysian Police asked him to turn himself in at a police station. The Prisoner did so, was arrested and then extradited to Australia. 18. The issues raised at the Prisoner's trial were self defence and provocation. His conviction of course means that the Crown negatived these two defences. 19. I have set out the Prisoner's version of what happened. The Crown was not in a position to contradict most of it but they did have the scene of the murder and a record of the post mortem examination. The latter revealed that the deceased had suffered 4 stab wounds to the chest, an incised wound to the right scalp, the knife penetrating the deceased's skin and then exiting from it, other incised wounds to the left flank, left neck, probably the right upper lip and to a number of fingers on both hands. There were a number of other lesser injuries including bruising and a mild blunt force head injury. Three of the stab wounds to the chest were the cause of death. 20. The crime scene revealed a deal of blood in the area behind the 2 bedrooms, indicating significant movement of the deceased after he commenced to bleed and that his body had been dragged by the Prisoner into one of the toilets, presumably with a view to concealing the body. 21. It is impossible to deduce from the jury's verdict the extent to which they accepted or rejected the Prisoner's evidence other than his claim that he stabbed the deceased because he feared he would pass out or die. It is impossible to deduce why the issue of provocation was resolved in favour of the Crown. It may have been for a number of reasons one of which might have been because the jury did not accept that the deceased's conduct could have induced an ordinary person in the position of the Prisoner to have so far lost control so as to have formed an intent to kill or inflict grievous bodily harm. In other words, the jury's resolution of the provocation issue in favour of the Crown did not necessarily involve a rejection of much of the Prisoner's evidence. 22. And as the Prisoner's actions do bear on his criminality, I am accordingly required to come to some conclusions as to what occurred. Necessarily involved in that is some view as to the Prisoner's credibility. 23. That task is not easy. For example, given the number of knife wounds to the deceased, it is difficult to accept that the Prisoner was being honest when he said that he could only recall two. There is inconsistency in the number of weeks the Prisoner said that he had not been paid. His story about tying up the deceased, which logic suggests would have required some co-operation by the deceased has a deal of the bizarre about it. It is no less bizarre if fabricated after the event. On the other hand the ball of string was present during the altercation, and became bloodied, and the evidence indicated that no such string was kept in the premises. 24. Notwithstanding these matters, having listened to and observed the Prisoner, I am nevertheless disposed to accept much of what the Prisoner has said as to the events leading to his offence. I accept his evidence that he was owed wages by the deceased. I accept that he had virtually no additional funds. He would seem to have had no family or friends' support in Wagga Wagga. It follows that the termination of his employment, and presumably the termination of the arrangement he had to live in the restaurant must have been particularly stressful. There was nothing to suggest that he was otherwise disposed to stealing and it seems to me likely that the Prisoner's approach to the deceased on the night the deceased was killed, was to obtain what he believed to be rightfully his. It may be accepted he had earlier concealed the knife but the evidence tends to indicate he only resorted to using this when his original efforts to be paid were unsuccessful. Certainly the Crown has not proved the contrary of the matters stated in this paragraph. 25. In its written submissions on sentence, the Crown described the attack on the deceased as "frenzied". I agree. The number and nature of injuries to the deceased make it impossible to conclude otherwise. They argue for a complete absence of self-control at the time they, or at least the majority of them, were inflicted – so much so that I find it impossible to be satisfied that the Prisoner had an intention to kill as distinct from simply lashing out. Of course, the extent of his lashing out must be given full weight. 26. Against this background, I turn to the statutory provisions to which I must have regard. It is not I think necessary that I dilate upon the purposes of criminal punishment or s 3A of the Crimes (Sentencing Procedure) Act 1999. I can also put aside s 61(1) of that Act because I agree with the Crown that the killing of the deceased was not such as to fall within the terms of that section. Relevant however is s 19A of the Crimes Act 1900, setting out the maximum penalty for murder, viz. life imprisonment. Another provision which the High Court has indicated is to be used as a guide is the standard non-parole period which has been prescribed – 20 years, which s 54A of the Crimes (Sentencing Procedure) Act says "represents the non-parole period for an offence in the middle of the range of objective seriousness for offences" of its nature. 27. Section 21A of the Crimes (Sentencing Procedure) Act sets out an extensive list of aggravating and mitigating factors to which I am also obliged to have regard. Many have no relevance but the aggravating factors that do are:- * The offence involved the use of violence and a weapon; * The offence was committed in the home of the victim; * The injury or damage caused by the offence was substantial; * The Prisoner abused a position of trust in relation to the victim; * The victim had some vulnerability because of his age and size, certainly relative to the Prisoner. 1. The first and third of these are incidents inherent in the Prisoner's offence or the way in which it was carried out and I take the view that they do not justify "additional regard" within the terms of the section. Of course they will be reflected in the sentence. In light of the circumstances that led to the offence, I do not regard the others as justifying more than at most, a marginal increase in penalty. 2. Relevant also is that the offence involved a series of criminal acts – knife and other blows – and that there was a degree of planning not "of" but that led to the offence though I am not persuaded that the particular activities of the Prisoner in carrying out the murder were of the type to which s 21A(2)(m) and (n) are directed. 3. The Crown in written submissions drew attention to a substantial number of other matters that it submitted argued for the offence being regarded as in the middle range of objective seriousness. It does not seem to me necessary to canvass all of those matters in these remarks though I should mention the last. In it, the Crown submitted that the offence was motivated by the Prisoner's desire to eliminate rather than simply reduce, the prospect of the Prisoner being apprehended before he had an opportunity to leave Australia. For reasons apparent in what I have said above, I do not accept that this was the situation. 4. I turn to subjective matters. The Prisoner was but 20 years old at the time. He has no record of previously committing criminal offences and was of good character. Based on that past and that the offence for which he is to be sentenced arose from the particular circumstances in which he found himself, I think it unlikely that he will re-offend and think that he does have good prospects of rehabilitation. Of course one must recognise that having behaved, to an appreciable degree, in an out of control and irrational way in committing the subject offence, absence of control and irrationality might manifest themselves again. However, the sentence which I must necessarily pass can be expected to have a strong salutary effect in any such situation. 5. During the course of the sentencing hearing the Crown read a letter from Mei Li, the daughter of the deceased who described the emotional and financial impact the deceased's death had had on her family. Such impacts are of course not uncommon and a Judge cannot practise long in this jurisdiction without becoming acutely conscious of them, though it certainly seems as if the impact on the deceased's mother, paralysed from polio, has been appreciably worse than often occurs. I take account of what Ms Li has said in arriving at my decision. 6. Looking only at the Prisoner's assault on the deceased, his crime was horrendous. However, that is not the only matter to which one should have regard and when taken into account also is the Prisoner's motivation, the fact that his crime was unpremeditated and, as I think it may be described, a consequence of his plans going wrong, it seems to me to fall below the middle of the range of objective seriousness. 7. That said, the punishment the law and sentencing principles require must be stern. 8. Of course to be taken into account also are the Prisoner's subjective features to which I have referred. 9. The Crown referred me to the decision of the Court of Criminal Appeal in Tran v R [2011] NSWCCA 116. I have also had regard to the decisions in R v GWM [2012] NSWCCA 240; R v KJS [2011] NSWSC 1690; R v Maglovski (No 2) [2013] NSWSC 16; R v O'Connor [2008] NSWSC 1297 and R v O'Donnell [2009] NSWSC 42 and borne in mind numerous other decisions to which I have been party or had to consider over the years. 10. Mr Todd, appearing for the Prisoner, urged a finding of special circumstances. While appreciating that this is the Prisoner's first time in custody and having regard to the length of the period when he will be eligible for parole, I do not regard the case as one justifying such a finding. 11. Kin Yee Wong, for the murder of Deng Cheng Li, I sentence you to imprisonment for a non-parole period of 16 years and 6 months commencing on 28 June 2014 together with a balance of term of 5 years and 6 months commencing on 28 December 2030. I record as the first date upon which it appears to the Court you will be eligible for release on parole is 28 December 2030.