Citation: R v Chong [2012] NSWSC 1309
Court: Supreme Court of New South Wales
Date: 26 October 2012
Judge: R A Hulme J
Background
The accused was employed to manage a scrap metal business in Sydney. His employers suspected him of embezzling over $213,000 from the business and sent the deceased to Australia to supervise him. The two men lived and worked together at a factory in Wetherill Park.
On 17 May 2009, the accused beat the deceased to death with a heavy metal stake inside the factory. The attack began in the office and continued into the main factory area. Forensic and circumstantial evidence, including DNA on the stake and a shoe impression on the deceased's back, pointed clearly to the accused as the perpetrator. An attempt was made to stage the scene as a robbery, but Hulme J found this unconvincing.
Following the murder, the accused was involved in a serious motor vehicle collision on 13 July 2009. The collision caused catastrophic brain damage. As a result of the resulting intellectual impairment, a fitness inquiry in 2011 found him unfit to be tried. The Mental Health Review Tribunal subsequently determined he was unlikely to become fit within 12 months, prompting the Director of Public Prosecutions to proceed by way of a special hearing.
Legal Issues
- Whether the accused committed the offence of murder on the evidence presented at the special hearing
- Whether the accused had the requisite intent to kill, given that the intellectual impairment arose after the commission of the offence
- What limiting term should be nominated under the Mental Health (Forensic Provisions) Act 1990, taking into account the objective seriousness of the offence, the accused's age, and his post-offence intellectual impairment
Decision
A jury at the special hearing found on 5 October 2012 that the accused committed the offence of murder. Hulme J accepted that the accused possessed intent to kill at the time of the offence. The sustained and savage nature of the beating supported that conclusion. The court noted that the accused's intellectual impairment arose only after the commission of the offence and was therefore irrelevant to the question of intent.
On the question of the limiting term, Hulme J assessed what sentence would have been imposed had this been a normal trial resulting in a guilty verdict. His Honour identified the offence as significantly objectively serious, noting that the killing was a sustained, brutal and premeditated attack on a person who had been sent specifically to oversee the accused. The court placed the best estimate of an appropriate head sentence at 15 years imprisonment.
Hulme J did, however, take into account two mitigating factors connected to the accused's condition. First, given the intellectual impairment, no weight could be given to either general or specific deterrence. Second, the impairment, combined with the accused's advanced age, would make time in custody more onerous than for the average inmate. Despite these factors, the significant objective seriousness of the offence led Hulme J to decline to fix the limiting term towards the lower end of the suggested range.
Orders Made
- A limiting term of 15 years was nominated, to commence from 30 July 2010 (the date the accused was taken into custody).
Key Takeaways
- Under the Mental Health (Forensic Provisions) Act 1990, where an accused is found unfit to be tried and unlikely to become fit within 12 months, the matter proceeds as a special hearing at which the fact-finder determines whether the accused committed the relevant offence.
- Where an accused's intellectual impairment arose after the commission of the offence, that impairment is irrelevant to the assessment of intent at the time of the offence.
- A limiting term nominated at a special hearing represents the court's best estimate of the sentence that would have been imposed had the accused been convicted at a normal trial.
- Advanced age and intellectual impairment are relevant to the limiting term: the Supreme Court found they justify according no weight to deterrence, and treating custody as more onerous, but those factors do not necessarily reduce the term where the offence is of significant objective seriousness.
- Victim impact statements were received and Hulme J conveyed formal condolences on behalf of the court and the community to the deceased's family.
Legislation and Cases Referenced
Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 11, 19, 21
Cases:
- R v Goodridge (No 2) [2012] NSWSC 1180