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Supreme Court 29 August 2012

R v Chen

[2012] NSWSC 1000

Homicide
CRIMINAL LAW SENTENCE MANSLAUGHTER EARLY GUILTY PLEA MULTIPLE STAB WOUNDS MUTILATION

Citation: R v Chen [2012] NSWSC 1000
Court: Supreme Court of New South Wales
Date: 29 August 2012
Judge(s): Schmidt J

Background

The offender was charged with the murder of her former de facto partner following events on 9 February 2011. The victim had been drugged with a sleeping tablet added to soup, restrained with bound wrists and feet, and then subjected to multiple stab wounds to the neck and groin, including injuries of a sexually mutilating nature. He died in hospital that evening.

The offender and the victim had a child together and a lengthy, troubled relationship marked by financial exploitation, the disputed removal of their son to China, and the offender's longstanding depressive illness. The victim had returned to Australia with a girlfriend in January 2011, unbeknownst to the offender, and contact was re-established in the days before the killing.

The offender pleaded guilty to manslaughter on the basis of substantial impairment by abnormality of mind under section 23A of the Crimes Act 1900. The Crown accepted that plea as satisfying the murder charge. The plea was first offered in August 2011 during Local Court case conferencing and accepted by the Crown in May 2012 after psychiatric assessment.

  • Whether the offender's guilty plea to manslaughter on the basis of substantial impairment should attract an early plea discount, and the extent of that discount
  • How to weigh the aggravating features of the offence (premeditation, drugging, restraint, mutilation) against the mitigating features (mental illness, genuine remorse, prior good character, rehabilitation prospects)
  • Whether special circumstances existed to justify a variation to the standard ratio between non-parole period and balance of term
  • Where in the range for manslaughter offences this sentence should fall, having regard to comparable decisions

Decision

Schmidt J sentenced the offender on the basis that, but for the 25% utilitarian discount for the guilty plea, a starting sentence of 9 years would have been appropriate. This reflected the serious nature of the offending while accounting for the significant mitigating circumstances, particularly the offender's psychiatric condition, her remorse, and her rehabilitation prospects.

Her Honour found significant aggravating features: the offence involved premeditation (evidenced by the drugging of the victim and the binding of his limbs), it was accompanied by acts of mutilation, and it was committed in the presence of the offender's children or with them nearby. The use of the sleeping tablet and the restraints demonstrated planning rather than an impulsive act, even allowing for the substantial impairment caused by the offender's depressive illness.

Mitigating factors included the offender's longstanding and severe depressive illness, her history of being exploited financially and emotionally by the victim, her genuine remorse (evidenced in part by her immediate call to emergency services), her prior good character, strong support from family and the community, and her prospects for rehabilitation. The psychiatric evidence from multiple experts was considered in detail.

Special circumstances were found to exist, justifying a greater proportion of the sentence being allocated to the parole period. The offender's need for extended post-release supervision and support, given her psychiatric history, was a key reason. The total sentence of 6 years and 9 months was structured with a non-parole period of 3 years and 9 months and a balance of term of 3 years.

Orders Made

  • The offender was convicted of the manslaughter of the deceased.
  • Sentenced to imprisonment with a non-parole period of 3 years and 9 months, commencing 9 February 2011 and expiring 8 November 2014.
  • Balance of term of 3 years, expiring 8 November 2017.
  • Earliest eligible release date: 8 November 2014.

Key Takeaways

  • A guilty plea first offered at Local Court case conferencing, though not formally accepted by the Crown until months later, may still be treated as an early plea attracting a 25% utilitarian discount under the principles in R v Thomson; R v Houlton.
  • Under section 23A of the Crimes Act 1900, substantial impairment by abnormality of mind reduces liability from murder to manslaughter; it does not eliminate the serious weight given to deliberate, planned acts of violence at sentencing.
  • Premeditation and mutilation placed this manslaughter offence toward the upper end of the range, notwithstanding the offender's significant psychiatric history, and the Crown's submission that a starting point at the very top of the range was not accepted.
  • Special circumstances justifying a departure from the standard non-parole ratio can be established where an offender's psychiatric condition creates a demonstrated need for extended post-release supervision and community support.
  • Comparable manslaughter sentences across the authorities were treated as of limited guidance given the diversity of offending circumstances, mental conditions, and subjective factors in each case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Administration of Sentences) Regulation 2008 (NSW)

Cases
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Backlidge (unreported, NSWCCA, 24 February 2005)
- R v Dawes [2004] NSWCCA 363
- R v Dodd (1991) 57 A Crim R 349
- R v Low (1991) 57 A Crim R 8
- R v Nguyen (No 2) [2009] NSWSC 1120
- R v Scott [2005] NSWCCA 152