Supreme Court New South Wales Medium Neutral Citation: R v Fang (No. 4) [2017] NSWSC 323 Hearing dates: 3 February 2017 Date of orders: 31 March 2017 Decision date: 31 March 2017 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Sentenced to imprisonment for 19 years comprising a non-parole period of 14 years and balance of term of 5 years, with the sentence to date from 4 October 2014. Catchwords: CRIMINAL LAW – sentence following trial - murder - Offender (35 years old) stabbed victim (25 years old) 20 times - Offender under influence of methylamphetamine (Ice) at time and subject to drug induced psychosis - victim also under influence of Ice at time of killing - relevance of self-induced intoxication and existence of drug induced psychosis on sentence - confession by Offender to police before discovery of body -finding of contrition and remorse - Offender facilitated course of justice - sentence of imprisonment for 19 years with non-parole period of 14 years Legislation Cited: Crimes Act 1900 Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015 Cases Cited: Butler v State of Western Australia [2010] WASCA 104 CMB v Attorney General for NSW [2015] HCA 9; 256 CLR 346 Director of Public Prosecutions (Vic) v Arvanitidis [2008] VSCA 189; 202 A Crim R 300 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Haddara v R [2016] VSCA 168 Mune v R [2011] VSCA 231 R v Ellis (1986) 6 NSWLR 603 R v Fang (No. 3) [2017] NSWSC 28 R v Gagalowicz [2005] NSWCCA 452 R v Gibson [2016] VSC 634 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Isaacs (1997) 41 NSWLR 374 R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31 R v Martin [2007] VSCA 291; 20 VR 14 Smith v State of Western Australia [2010] WASCA 176 The Queen v Olbrich [1999] HCA 54; 199 CLR 270 Texts Cited: --- Category: Sentence Parties: Regina (Crown) Zhen Fang (Offender) Representation: Counsel: Mr C Maxwell QC (Crown) Mr AJ Bellanto QC; Ms YC Lin (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Andrew Scali (Offender) File Number(s): 2014/291301 Publication restriction: --- JUDGMENT 1. JOHNSON J: The Offender, Zhen Fang, was found guilty by a jury on 23 November 2016 of the murder of Ting Huang ("the victim") in Sydney between 31 August 2014 and 11 September 2014. 2. The circumstances of this case reveal, in graphic terms, the devastating consequences flowing from the use of methylamphetamine ("Ice") by members of the community. As will be seen, both the Offender and the victim were users of Ice and both were under the influence of Ice at the time when the Offender stabbed the victim to death. One man is dead and the other faces a lengthy term of imprisonment. Their families have been left to salvage what they can from the human wreckage left from these terrible events. 3. The present task of the Court is to impose sentence upon the Offender for this crime. The maximum penalty for the crime of murder is imprisonment for life: s.19A(1) Crimes Act 1900. If the Court does not impose a life sentence, the Court may impose a sentence of imprisonment for a specified term: s.21(1) Crimes (Sentencing Procedure) Act 1999. A standard non-parole period of 20 years applies for the crime of murder: ss.54A-54B Crimes (Sentencing Procedure) Act 1999. 4. It falls to me as the trial Judge to determine punishment, and for that purpose, to make findings of fact relevant to sentencing. The primary constraint is that the view of the facts adopted by me for the purposes of sentencing must be consistent with the verdict of the jury: R v Isaacs (1997) 41 NSWLR 374 at 377-378. 5. The Court may not take facts into account on sentence, in a way that is adverse to the interests of the Offender, unless those facts have been established beyond reasonable doubt. If there are matters which the Offender relies upon in mitigation of penalty, it is for the Offender to prove those matters on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 281 [27]. Facts of the Offence 1. What follows constitutes my findings of fact. 2. The Offender was born in the People's Republic of China in 1978. He came to Australia in the early 2000's and worked in a self-employed capacity as a gyprocker. He married his wife in Australia and there are two daughters of the marriage born in 2002 and 2011. He is a permanent resident of Australia. 3. I accept that the Offender encountered pressures in his life from a number of sources in the years leading up to 2013 - 2014. His wife had a miscarriage and, as a result of an associated medical procedure, she became infertile. 4. The Offender's mother, who lived in China, suffered serious injuries after being struck by a motor vehicle in about 2011. The Offender's mother and father were both later diagnosed with cancer (T137). The Offender Commences to Use Ice 1. These circumstances had a significant effect on the Offender and provided the context in which he commenced to use Ice in 2013. He was, by that time, about 35 years old. 2. The victim was born in 1988 in the People's Republic of China. He was 25 years old at the time of his death. He came to Australia at the age of 22 years and found work as a gyprocker. Mr Huang married and a daughter was born of the marriage. He separated from his wife and daughter and he was badly affected by that development. 3. The Offender met the victim through their employment. The victim was a user of Ice. Through his association with the victim, the Offender commenced to use Ice. 4. The evidence of the Offender's (by then) former wife at the trial indicated areas of concern with his behaviour in 2014 and the discovery in their Campsie home (by one of their daughters) of a bottle used by the Offender to smoke Ice (T127). She said that the Offender was a regular user of marijuana and Ice (T127). The Offender's wife said that the he "hadn't been normal for a period of time" before September 2014 and "was often not at home" (T127). She described mood changes in the Offender, stating that "he would fly into a rage quite often and that scared us a bit" (T137). After the discovery of the bottle used to smoke Ice, the wife threw the item away and this upset the Offender (T127). During 2014, the Offender lived downstairs in the house and she lived upstairs. At times, the Offender would talk "nonsense" (T139). The Offender's wife told the Offender that he should see a psychiatrist but he would not do so (T136-137). Events Between 6 and 10 September 2014 1. The Offender and the victim were friends with Jian Feng Weng who lived in Kennedy Street, Guildford. The victim would occasionally stay with Mr Weng at the Guildford premises. 2. On the evening of 6 September 2014, the Offender and the victim were together at Mr Weng's house at Guildford. The Offender and the victim drank a number of bottles of beer between them at that house. Mr Weng was home at the time and, before he went to sleep, he heard a number of things happening as between the Offender and the victim. 3. Each of the Offender and the victim smoked Ice that evening at the Guildford house. Judging from the high level of methylamphetamine discovered later in the victim's body, I accept that both the Offender and the victim consumed a substantial amount of Ice that evening. 4. At a point late on the evening of 6 September or in the early hours of 7 September 2014, Mr Weng heard the Offender and the victim arguing with each other. He overheard the Offender say to the victim "Why did you threaten me?" 5. I accept that the Offender believed that, in the course of this argument, the victim said that he wished to kill the Offender's family. At the trial, three psychiatrists gave evidence - Dr Yvonne Skinner (for the Crown) and Dr Olav Nielssen and Dr Stephen Allnutt (for the Offender). The psychiatrists expressed the opinion that the Offender was experiencing a drug-induced psychosis at the time of the killing. Opinions were expressed that the Offender experienced a delusion at that time that the victim had threatened to kill the Offender's family. 6. At the sentencing hearing, submissions were made as to what facts the Court should find in this respect. The question was whether such a threat was actually made by the victim or whether it was a delusion on the part of the Offender. On the state of the evidence, and noting that the Offender did not give evidence at the trial or on sentence, I am not able to make a finding either way as to whether a threat was actually made by the victim, or whether there was no threat but that the Offender was subject to a delusion that there was a threat. 7. I am satisfied that the Offender was under the influence of a substantial quantity of Ice which he had ingested that evening (together with some alcohol), and that he was significantly intoxicated at the time that he killed the victim. I am satisfied as well that the Offender's longer term use of Ice affected his thought processes at that time, although the primary influence upon him at the time of the killing was the Ice which he had taken that evening whilst in company with the victim. I accept that the Offender was experiencing a drug induced psychosis at the time of the killing. The Offender was not suffering from any other psychiatric condition. There was no family history or personal history of mental illness and the difficulties he was experiencing flowed from his use of drugs and, in particular, Ice. 8. It is possible that a threat was made by the victim (perhaps himself then experiencing a delusion). It is possible that the Offender, in a deluded state, believed that the victim had made a threat which had not, in fact, been made. It is possible that delusions were experienced by each of them and that their thought processes were affected at the time of the killing. Whatever scenario may be correct, I am satisfied that the Offender believed that the victim had threatened him and his family and that this belief played a part in the homicidal attack which followed. I am satisfied that the Offender was significantly under the influence of Ice at the time of the killing, so that his perception of events was distorted. 9. I decline to find that the Offender was provoked by the victim for the purpose of s.21A(3)(c) Crimes (Sentencing Procedure) Act 1999. For reasons explained (at [18]-[21] above), I am not satisfied on the balance of probabilities that the victim actually threatened the Offender. 10. The Offender inflicted 20 stab wounds to the victim's head, neck, trunk and upper extremities. The stabbing occurred at the Guildford premises of Mr Weng. 11. After stabbing the victim to death, the Offender wrapped the victim's body in a distinctive Chanel quilt, which he took from a bedroom at the Guildford house. He then carried the body wrapped in the quilt to the victim's green Honda sedan which was parked at the front of the Guildford house. The Offender then drove the vehicle some 12 kms from Kennedy Street, Guildford to East Street, Lidcombe where he left the vehicle parked in the street next to Rookwood Cemetery. 12. These acts of the Offender were purposeful and deliberate. They indicate that the Offender was sufficiently in control of his actions and thought processes that he was able to take these steps in an apparent attempt to remove the body from the Guildford house and conceal its location. This suggests that the Offender's thought processes were not so disordered as to stand in the way of him taking these steps in his own interest. 13. The Offender departed the scene and, at about 7am on 7 September 2014, he drove his wife's motor vehicle in the Canterbury area, with the movement of the vehicle being detected by a speed camera. 14. The Honda sedan (with the victim's body in the boot) was not located until 21 September 2014, when a telephone call was received by police reporting that a vehicle had been abandoned in East Street Lidcombe for a number of weeks. It was only then that police attended and opened the vehicle, locating the body of the victim in the boot still wrapped in the Chanel quilt. 15. In the days following 6 September 2014, members of Mr Huang's family became increasingly concerned that they had not heard from him. Friends and family of the victim travelled to Sydney to help locate him but without success. Mr Huang's sister accessed his social media accounts for this purpose. At one point, she spoke directly with the Offender but he told her he did not know where the victim was (Exhibit F). The Offender Confesses to the Killing 1. On the evening of 9 September 2014, the Offender was at his family home in Campsie. The next morning, the Offender told his wife not to go to work. He asked her to accompany him to their Church so that he could speak to the Pastor. 2. On 10 September 2014, the Offender and his wife attended the Padstow Chinese Congregational Church, where they were members of the congregation. The Offender told Pastor Zheng Kui Yao that he had done something to a person, with his words being accompanied by a throat slitting gesture with his hand. The Offender told the Pastor that the person had "wanted to kill [my] whole family". The Pastor advised the Offender to speak to the police. The Offender told the Pastor that his whole family were Christians and that he was worried that God would not forgive him. The Pastor advised the Offender that "if you concede your sin, God would forgive you for sure, but you have to face everything" (T51). 3. The next day, 11 September 2014, the Offender and his wife attended the Campsie Police Station and spoke to Detective Sergeant Anthony Johnston. An interpreter was arranged and police had a conversation with the Offender. 4. The Offender told police "I've killed someone". When asked where this occurred, the Offender said "I can't remember where exactly, last place, the man gave me a lot of Ice, drug". The discussion continued with the Offender saying that he had driven to a place where there was "a lot of graveyards or cemetery". He told police that he had used a knife to kill the person but was not able to give the name of the victim. When asked "Why have you killed him?", the Offender said "I think he had threatened to kill the whole of my family. He thinks he is better than me, but I don't know why". The Offender said "That night I was so fearful, I had so much Ice, I am not really sure, I am not sure, I am getting punished". The police officer asked "Do you use a lot of Ice?". The Offender replied, "In the very first beginning I got a habit of smoking marijuana, he knew I smoked a lot of Ice especially when he gave me a lot of Ice to smoke". Later in the conversation, Detective Sergeant Johnston asked "How do you know that is not a dream?". The Offender interrupted and became angry saying "not a dream, that should not be a dream, mustn't be a dream". Detective Sergeant Johnson asked "Why?" and the Offender responded "Because I always fear for my wife and kids will be killed now. I don't have that fear. I have a great fear for my parents that have cancer, but deep inside I know my family is safe". Later in the conversation, the Offender told police that this occurred "somewhere near some graves". 5. During the course of the conversation, police became concerned that the Offender may be displaying signs of mental illness and formed the view that he should undertake a mental health assessment. Arrangements were made for the Offender to be taken by ambulance to St George Hospital. Following an assessment at the hospital, the Offender was found not to be suffering from a mental illness or mental disorder and he was released. 6. Drug and alcohol testing was carried out on the Offender at the hospital which returned a negative result. Given that the killing likely occurred on the evening of 6 September or the early hours of 7 September 2014, the evidence of the psychiatrists at trial was that it was unsurprising that a negative result was returned if the Offender had not used further drugs between the time of the killing and the time of the testing. The evidence was that methylamphetamine has a short half-life and does not linger in the human system and would have likely been removed from the body after about 48 hours. Events After the Police Interview 1. At one point (probably after 11 September 2014), the Offender visited Mr Weng at his Guildford house and told him that he (the Offender) was in trouble. The Offender asked to borrow $5,000 from Mr Weng which the latter could not provide. 2. On 18 September 2014, the Offender flew to China on a return ticket with a scheduled arrival back in Sydney on 29 October 2014. 3. The Honda sedan was located on 21 September 2014 in East Street, Lidcombe with the victim's body in the boot. Police established a crime scene. On 24 September 2014, police received information that the Honda sedan was connected, in some way, to Mr Weng's Guildford premises. Police attended the Guildford premises and ascertained that the victim had recently resided there sporadically. Police then spoke to Mr Weng and were provided with additional information concerning the Offender and the victim. 4. Following the discovery of the green Honda sedan and the victim's body on 21 September 2014, the police investigation turned promptly to the Offender given the statements made by him on his visit to the Campsie Police Station on 11 September 2014. Contact was made with the Offender in China and he agreed to return to Sydney on 4 October 2014. After his aircraft landed that day, the Offender was arrested and cautioned. 5. The Offender was taken to Mascot Police Station where he exercised his right to silence, but provided a DNA sample to investigating police. A conversation between the Offender and his family was covertly recorded by means of a surveillance device installed under warrant at Mascot Police Station. In that conversation the Offender told his family, amongst other things, "there's a bad man who has threatened to kill our whole family, wants to kill the three of you. … so now daddy now trying hard to co-operate with the police …". 6. The Offender was charged with murder. Soon after, the Offender requested to participate in an electronic interview with police. The interview commenced but was stopped soon after at the request of the Offender who told police he had a headache. 7. The Offender has been in custody since 4 October 2014. Issues at the Trial 1. The trial was conducted upon the basis that there was no issue that the Offender had killed the victim. I declined to leave the defence of mental illness to the jury for reasons explained in R v Fang (No. 3) [2017] NSWSC 28. Put shortly, I held that, in the absence of evidence of any other psychiatric condition, the existence of a drug induced psychosis did not constitute a "disease of the mind" for the purpose of the defence of mental illness. This finding was reinforced by evidence that the Offender was substantially intoxicated by his ingestion of Ice before the killing: R v Fang (No. 3) at [109]-[111]. 2. The issues at the trial concerned the question whether, because of the Offender's intoxication, the Crown could prove the relevant mental element for murder to the criminal standard. The partial defence of substantial impairment was also left to the jury although the Offender always had difficulties on this issue given his admitted self-induced intoxication: s.23A(3) Crimes Act 1900. I am satisfied that the jury rejected the partial defence of substantial impairment because of the Offender's self-induced intoxication, flowing from his ingestion of a significant quantity of Ice before the killing, which was a critical factor bearing upon his state of mind at the time of the killing: R v Fang (No. 3) at [32]. Some Unusual Features of the Case 1. There are some unusual features surrounding this case. 2. The Offender came forward to his pastor on 10 September 2014, and then to the police the next day, to confess that he had killed a person. At that time, the victim's body had not been located. Aspects of what the Offender told police were clearly correct, including the fact that a knife had been used to kill the victim and that a location near a cemetery was relevant to the case. 3. As it happens, the police did not regard what was being said as being sufficiently reliable to detain the Offender at that time, let alone charge him with any offence. The Offender was released after a medical assessment at St George Hospital had not identified any mental illness or mental disorder. 4. It is the case that the Offender left Australia a week later to travel to China. However, he did so by way of a return airline ticket. Further, the Offender returned to Australia early, at the request of police, arriving on 4 October 2014. I accept that the Offender's journey to China reflected his desire to visit his sick parents. It is not the case that he was seeking to leave the jurisdiction to evade police investigation of this matter. 5. Upon returning to Australia, the Offender was arrested and has remained in custody since. 6. The Offender's statements to police concerning his use of Ice, and that of the victim's use of Ice, should be accepted. The Offender's former wife gave evidence of his drug use and her concerns with respect to it. In addition, a substantial quantity of methylamphetamine was located in the victim's body. There is a range of evidence from different sources which supports the Offender's assertion that he carried out this crime whilst under the influence of Ice. 7. The evidence does not point to any other more sinister motive or explanation for the killing. Indeed, the fact that the Offender came forward to police soon after the killing, and before the body was discovered, tends to support his account as to the circumstances of the offence, even after due allowance is made for his muddled and clouded thinking which I accept was the result of his substantial drug use. 8. I have found that the Offender, after the killing, transported the body of the victim by vehicle to the vicinity of the Rookwood Cemetery. The Offender was sufficiently in control of his actions and thought processes that he was able to take these purposeful steps after the killing, apparently in an attempt to (at least) remove the body from the Guildford premises and to conceal its location. Having done so, however, the Offender provided information to police a few days later which pointed to the location of the vehicle near a cemetery. This is a further unusual feature of the case. The Offender's Subjective Circumstances 1. I have already mentioned aspects of the Offender's personal history. 2. The Offender has a prior criminal history. In 2008, offences of resisting a police officer in the execution of duty and failing to leave licenced premises were dismissed under s 10 Crimes (Sentencing Procedure) Act 1999. In 2010, the Offender was placed on a s 10 Bond and was fined for driving whilst disqualified and fraudulently altering a licence. In November 2010, the Offender was ordered to perform 450 hours community service for an offence of assault occasioning actual bodily harm and was placed on a two year good behaviour bond for an offence of affray. 3. The Offender has drink driving offences as well in 2010 and 2012 for which he was fined and disqualified. 4. The criminal history suggests that the Offender has had issues in the past related to excessive alcohol use. 5. Evidence was adduced at the sentencing hearing in the form of statements from the Offender's father in China and from persons who knew the Offender and had been involved with him in church activities in China. I accept that the Offender has been a member of a Christian Church both in China and in Australia, with support for this being demonstrated by his confession on 10 September 2014 to the Pastor of his Church at Padstow. The Offender's mother died in China in January 2016. 6. The Court was informed that the Offender is no longer married to his wife. Tendered at the sentencing hearing was a poignant handwritten letter from the Offender's then 15 year old daughter (Exhibit 2). She described her father as being, in the past, "a timid and a caring person" who "always cared for the family". The daughter stated that "everything was fine until three years ago" when the Offender stopped working and did not come home. She observed a glass bottle under the sofa and showed it to her mother who was concerned by it (see [13] above). 7. The daughter then described, in her own way, how she learned of her father's drug use: "During that period of time, I realized my dad was very moody just like the weather in Melbourne. Very deep in my mind was that one day when my dad got home he putted [sic] all his anger on me. I felt scard [sic] and my heart was broken because he never did that on me. My mum hugged me and told me he was a drug user. Suddenly I understand why dad's behaviour has changed." 1. The young lady continued explaining that she "was proud of [her father] before" but now she "felt ashamed'. She expressed her strong belief that, without drugs, her father was "a good person". 2. A report of Dr Nielssen dated 1 February 2017 was tendered at the sentencing hearing which supplemented his earlier report and evidence. 3. I accept that the Offender was a hard working family man before he commenced to use Ice, with that use culminating in his commission of murder. His prospects of rehabilitation appear good, with some support for this finding in the report of Dr Nielssen. His risk of re-offending is not great given his likely future abstinence from prohibited drugs. In making these findings, I have kept in mind the level of uncertainty which operates with respect to a risk assessment made years before any prospect of release given the length of any sentence to be imposed for murder. Victim Impact Statements 1. A joint victim impact statement was made at the sentencing hearing by the mother and father of Mr Huang, Ai Qin Chen and Zugeng Huang. They recounted the fears and worries which they had when it was reported to them that their son had gone missing in September 2014. The receipt of the devastating news that he was dead had a great impact upon each of them. The consequences of that news, and the great distress which each of them experiences, was apparent at the sentencing hearing. I accept that there are long standing, indeed permanent adverse effects upon Mr Huang's parents resulting from his death. 2. At the sentencing hearing, I expressed the condolences of the Court and the Australian community to Mr Huang's parents for the loss of their son. It is important that the Court repeat that expression of condolences in the reasons of the Court. 3. It was accepted by the Crown and senior counsel for the Offender that the Court should have regard to the victim impact statement under s.28(4) Crimes (Sentencing Procedure) Act 1999 as an aspect of harm done to the community, and I have done so. Contrition, Remorse and Facilitating the Course of Justice 1. I am satisfied that the Offender manifested contrition and remorse for his crime from a very early stage. Within days of the killing, the Offender presented himself voluntarily first to his pastor and then to the police, to tell them what he had done. This information was provided at a time when the victim's body had not been located and, as far as the police were concerned, when it was not at all clear that the Offender had committed any crime. After travelling to China, the Offender returned voluntarily to Australia at the request of police, effectively surrendering himself into custody. 2. In these circumstances, senior counsel for the Offender submitted that the Court should take into account, in favour of the Offender, his actions in disclosing the offence in accordance with the principles in R v Ellis (1986) 6 NSWLR 603 at 604. In the unusual circumstances of this case (see [44]-[51] above), I accept that the Offender is entitled to have this conduct taken into account in his favour on sentence. 3. However, this is not a case where the crime would not have come to light at all except for the Offender's disclosure. I am satisfied that the discovery of the victim's body in the vehicle at Lidcombe, and the associated forensic evidence, would have led police ultimately to the Offender. This was especially likely when police learned of Mr Weng and the connection of his Guildford premises to both the Offender and the victim. That said, the Offender's early confession to the killing, which was corroborated in a number of respects by evidence found in the vehicle at Lidcombe and in the Guildford premises, served the policy of the criminal law to encourage a person to come forward and disclose both the fact of the killing and the Offender's role as the killer: R v Ellis at 604. At the same time, it should be kept in mind that the Offender did not plead guilty and went to trial on the charge of murder. It was not submitted for the Offender that s.23 Crimes (Sentencing Procedure) Act 1999 was engaged in this case so that a quantified discount should be extended to the Offender: CMB v Attorney General for NSW [2015] HCA 9; 256 CLR 346. This was understandable given that it was very likely that the Offender would have been detected and prosecuted for murder even if he had not come forward to police as he did. 4. As the Offender went to trial on the charge of murder, he is not entitled to any discount which would have flowed from a plea of guilty. 5. The trial was conducted efficiently on behalf of the Offender. As I have noted earlier (at [42]-[43]), the trial was confined to limited issues with a range of admissions being made by the Offender at the trial. In these circumstances, I am satisfied that the Offender should have the benefit of a favourable finding for his pre-trial disclosure and his facilitation of the administration of justice for the purpose of s.21A(3)(e) and s.22A Crimes (Sentencing Procedure) Act 1999. In forming this view, I have kept in mind that s.21A(3)(e) and s.22A are not intended simply to reward the defence where it has complied with a mandated disclosure requirement. However, co-operation encompassed by these provisions extends to admissions, disclosures made before or during the trial or limiting the facts in issue in the trial, thereby reducing the number of witnesses to be called. All of these things occurred in this case. Relevance on Sentence of the Offender's Intoxication and the Role of Addiction and Drug Induced Psychosis 1. The Offender had been using Ice for some months prior to the killing. There was some general evidence from the psychiatrists concerning the nature of Ice. Dr Allnutt said that "methylamphetamines are particularly nasty drugs and tend to be more likely to cause a psychosis than many of the other drugs" (T272). Dr Skinner described Ice as being "very addictive" (T213). This evidence accords with the experience of sentencing courts where Ice use features regularly in the commission of serious crimes, particularly of violence: Haddara v R [2016] VSCA 168 at [49]. Concern about Ice in New South Wales is illustrated by the halving of the large commercial quantity of methylamphetamine, for the purpose of supply offences, by the Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015. 2. Competing submissions were made concerning the relevance of the Offender's intoxication, addiction and drug induced psychosis on sentence. 3. The Crown submitted that the self-induced intoxication of the Offender at the time of the offence was not to be taken into account as a mitigating factor on sentence: s.21A(5AA) Crimes (Sentencing Procedure) Act 1999. Senior Counsel for the Offender referred to the origin of this provision (arising from one punch killings in Kings Cross) and submitted that the section was in reality directed to alcohol induced violence so that the Court should not invoke the provision on sentence in a case such as this. 4. I am satisfied that s.21A(5AA) has application to the present case. The term "self-induced intoxication" is defined in s.21A(6) as having the same meaning as in Part 11A Crimes Act 1900. For that purpose, the term "intoxication" is defined as meaning intoxication because of the influence of alcohol, a drug or any other substance: s.428A Crimes Act 1900. The word "drug" is defined in s.428A as including a drug within the meaning of the Drug Misuse and Trafficking Act 1985. Although the statutory origin of s.21A(5AA) may be found in events surrounding one punch attacks in the Kings Cross area in 2012 and 2013, it is clear that the provision itself is intended to cover self-induced intoxication whether by way of alcohol or a prohibited drug such as Ice. It has been said that s.21A(5AA) reflects largely the law as it stood before the enactment of that provision so that self-induced intoxication, whether by alcohol or drugs, did not operate to mitigate penalty: R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31 at 59 [220]. 5. The classification of a "disease of the mind", for the purpose of the defence of mental illness, involves a legal question with a medical dimension: R v Fang (No. 3) at [62]-[63]. The defence of mental illness operates within relatively narrow parameters: R v Fang (No. 3) at [107]. A broader range of mental conditons may be taken into account on sentence: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at 43 [177]-[178]. Where the relevant mental condition arises, as in this case, from the person's use of drugs and the person's intoxication by use of a drug shortly before the commission of the offence, s.21A(5AA) has application together with the principles emerging from a number of cases to which I now turn. 6. Submissions were made on the question whether the Offender had awareness (at the time of the killing) that his use of Ice might lead to an act of violence directed to another person. A number of sentencing decisions (where a serious crime has been committed at the time of a drug induced psychosis) have indicated that an enquiry of that type is relevant on sentence: R v Gagalowicz [2005] NSWCCA 452 at [36]; R v Martin [2007] VSCA 291; 20 VR 14 at 19-20 [20]; Director of Public Prosecutions (Vic) v Arvanitidis [2008] VSCA 189; 202 A Crim R 300 at 310-314 [30]-[48]; Butler v State of Western Australia [2010] WASCA 104 at [8], [54]ff; Smith v State of Western Australia [2010] WASCA 176 at [69]; R v Gibson [2016] VSC 634 at [94]ff. 7. There is no evidence that the Offender appreciated that his use of Ice might lead to an act of violence, and certainly not homicidal violence. The evidence indicates behavioural changes which had been observed by members of his family, including outbursts of rage by him directed to family members (see [13] and [58] above). There is no sworn account from the Offender before the Court either at the trial or on sentence. If the Offender sought a favourable finding on this issue, it was for him to persuade the Court that he did not know, and could not have anticipated, what the effects of his ingestion of Ice might be: Mune v R [2011] VSCA 231 at [32]. 8. Having considered the evidence which bears on this issue, I approach the sentencing of the Offender upon the basis that there is no evidence that he had prior knowledge that his use of Ice would lead to an act of violence on his part towards another person, although he was aware that his use of Ice had given rise to behavioural changes in him, including altered though processes and rage directed to family members. It is necessary to keep in mind as well that the Offender had been using Ice for some months. He was about 35 years old and was not an inexperienced youth. He did not act upon his wife's sensible advice that he should seek medical assistance. Further, the Offender appears (from his criminal history) to have had past issues with alcohol use. These aspects do not help the Offender on sentence. 9. Although the Offender was aware that his use of Ice could result in adverse behavioural changes (including altered thought processes and rage), there is no evidence that he appreciated at the time of the killing that his Ice use might lead to an act of violence against another person. However, this finding does not mitigate the Offender's culpability for the killing. If the Offender realised that one of the effects of his Ice use might have been that he would act violently towards another person, this would have been a matter of serious aggravation: R v Gagalowicz at [36]; R v Martin at 22 [28]-[30]; Director of Public Prosecutions (Vic) v Arvanitidis at 308-311 [24]-[35]. 10. The fact that the Offender had developed an addiction to Ice is a relevant factor on sentence but is not, of itself, a mitigating circumstance: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 381-386 [171]-[208]. The Offender had a choice whether to commence his use of Ice: R v Henry at 395 [257]. His decision to persist with drug use, rather than to seek assistance as advised by his wife, also involved a matter of choice: R v Henry at 385 [201]. The Offender was not a young and immature person with limited experience of life. 11. I am satisfied that the Offender's state of self-induced intoxication does not operate to mitigate the circumstances of the offence itself. However, the fact that the Offender had commenced to use prohibited drugs in circumstances of personal stress provides assistance to the Offender's subjective case on sentence, in combination with the favourable findings which I have made with respect to his contrition and remorse, his facilitation of the course of justice and his favourable prospects of rehabilitation. 12. I am satisfied that general deterrence remains a factor to be taken into account on sentence in this case. The sentence in this case should serve as a warning to the general community, if a further warning was really needed, of the disastrous consequences flowing from the use of Ice and the serious acts of violence which may be undertaken by persons whilst under its influence including, in this case, murder. Determining an Appropriate Sentence 1. It is necessary to draw together the various objective and subjective factors relevant to sentence, as well as the sentencing principles to be applied in sentencing the Offender. 2. The Crown submitted, for the purpose of consideration of the standard non-parole period, that the objective seriousness of this offence lay at the mid-range of objective seriousness. Bearing in mind the confines of this assessment, I accept the Crown's submission that this was a mid-range offence. This was a frenzied knife attack (involving the infliction of 20 wounds) carried out upon the victim with a clear intention to kill. 3. I have kept in mind the circumstances in which the offence occurred. The Offender's thought processes were affected by his use of Ice, although he retained the capacity to perform purposeful acts after the murder, including the transporting of the body some distance by vehicle to a different suburb. 4. The Offender has a limited criminal history for offences of violence and the evidence indicates more generally that, before he commenced to use Ice, he was a hard working family man. The Offender was subject to considerable personal and family pressures which serve to explain how he came to make the fateful decision to use Ice. I have made a number of favourable findings with respect to the Offender's subjective circumstances, his prospects of rehabilitation and his prospects of avoiding re-offending. I have also taken into account the Offender's substantial remorse, reflected in his early confessions to having committed the killing and his facilitation of the course of justice. 5. Drawing together these various factors in the required process of instinctive synthesis, I am satisfied that a sentence of imprisonment for 19 years should be imposed. I make a limited finding of special circumstances so that the non-parole period will be fixed at 14 years. I am satisfied that a non-parole period of 14 years constitutes the minimum term of imprisonment which the Offender should serve having regard to the objective and subjective factors relevant to sentence and all other sentencing principles to be taken into account. The parole period component to be incorporated in the sentence will provide ample opportunity, by way of conditional liberty, in the event that the Offender is released to parole at the conclusion of the non-parole period. 6. The sentence will date from 4 October 2014, the date upon which the Offender went into custody. 7. As the Offender is convicted of a "serious violence offence", it is a requirement that he be warned of the existence of the Crimes (High Risk Offenders) Act 2006. I ask the Offender's solicitor to undertake this task on the Court's behalf. 8. Will the Offender please stand? Zhen Fang, following the verdict of the jury on 23 November 2016, you were convicted by the Court of the crime of murder of Ting Huang. For that crime, I sentence you to imprisonment for 19 years comprising a non-parole period of 14 years commencing on 4 October 2014 and expiring on 3 October 2028, with a balance of term of 5 years commencing on 4 October 2028 and expiring on 3 October 2033. ********** 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: 31 March 2017