Citation: R v Li [2012] NSWSC 477
Court: Supreme Court of New South Wales
Date: 11 May 2012
Judge(s): Adamson J
Background
The offender, a 22-year-old Chinese national on a student visa, had worked as a male sex worker and was known to the deceased, a 63-year-old teacher, by the name "Terry". On 20 September 2009, the offender attended the deceased's unit in Glebe. During the visit, he bound the deceased with packing tape around the wrists, chest, thighs, ankles, and mouth, and robbed him of bank cards, credit cards, and other property.
The deceased was found dead on 24 September 2009 by police, who gained access through a laundry window after colleagues raised the alarm when he failed to appear for work. The body was badly decomposed. The pathologist could not determine an exact cause of death but identified possible mechanisms including hyperthermia, dehydration, and various forms of asphyxia. A small fan heater had been left running in the warm bedroom.
The offender was originally charged with murder and aggravated robbery with wounding. On the day fixed for trial, he pleaded guilty to manslaughter on the basis of unlawful and dangerous act, and to aggravated robbery. He had earlier pleaded guilty to eight counts of obtaining money by deception, having used the deceased's bank and credit cards on multiple occasions between 20 and 26 September 2009.
Legal Issues
- What was the appropriate sentence for manslaughter by unlawful and dangerous act in circumstances where the exact cause of death could not be established?
- What weight should be given to the guilty plea, including the timing of that plea and any utilitarian value?
- How should objective seriousness, subjective circumstances, and the totality principle be applied across three sets of offences sentenced together?
- Whether the prospect of deportation was a relevant sentencing consideration.
- Whether special circumstances existed to justify departing from the standard non-parole to total sentence ratio.
Decision
Adamson J sentenced the offender on the basis that his act of binding the deceased constituted the unlawful and dangerous act underpinning the manslaughter. The court accepted that the exact mechanism of death could not be proven beyond reasonable doubt, but was satisfied that the binding was causally connected to the death. The agreed facts established that the offender left the deceased immobilised, in a warm room, with tape across his mouth, where he remained until he died.
The court assessed the objective seriousness of the manslaughter as above the mid-range. The offender had placed a vulnerable, elderly man in a position of complete helplessness for the purpose of financial gain, and then made no attempt to obtain help or release him. The systematic use of the deceased's cards over six days while he lay dying or dead was treated as a significant aggravating feature of the overall conduct.
On subjective matters, the court considered the offender's youth, his lack of prior criminal history in Australia, his cooperation with police, and his guilty plea. The plea to manslaughter was entered late, on the day of trial, which reduced its utilitarian value. However, the court gave some credit for the overall course of cooperation and acknowledged remorse expressed in a letter tendered on sentence.
On the question of deportation, the court confirmed that the prospect of the offender being deported upon release was entirely irrelevant to the sentencing exercise, being a matter exclusively for the Executive. The court also declined to find special circumstances warranting an adjustment to the standard ratio between the non-parole period and the balance of the sentence.
Orders Made
- Obtaining money by deception (8 counts): Fixed term of 1 year imprisonment, commencing 26 September 2009, expiring 25 September 2010.
- Aggravated robbery: Fixed term of 6 years imprisonment, commencing 26 March 2010, expiring 25 March 2016.
- Manslaughter: Non-parole period of 7 years, with a balance of term of 3.5 years, commencing 26 March 2011. Eligible for parole from 25 March 2018. Total sentence expiring 25 September 2021.
Key Takeaways
- Manslaughter by unlawful and dangerous act does not require proof of the precise mechanism of death, provided the unlawful act is causally connected to the death and the death was a foreseeable consequence of that act.
- A guilty plea entered on the day fixed for trial attracts reduced utilitarian credit compared with an early plea, even where the offender has otherwise cooperated with the investigation.
- The prospect of deportation following release is irrelevant to sentencing in New South Wales courts; it is a matter reserved exclusively for the Executive Government and cannot be used to increase or reduce any aspect of a sentence.
- Where multiple offences are sentenced together, the totality principle requires the court to ensure the overall sentencing package reflects the full criminality of the conduct without resulting in a crushing sentence.
- The Supreme Court declined to adjust the standard non-parole period ratio despite the offender's youth and absence of family in the jurisdiction, finding those factors did not constitute special circumstances sufficient to warrant departure in this case.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 95, 96, 178BA
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Case Conferencing Trial Act 2008 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW), s 191
Cases:
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Ian Styman; R v Taber [2004] NSWCCA 245
- R v Lavender [2005] HCA 37; 222 CLR 67
- R v Nguyen [2004] NSWCCA 438
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v Pham [2005] NSWCCA 94
- R v Stafrace (1997) 96 A Crim R 452
- R v Taber and Styman [2005] NSWSC 1292
- R v Taber, Styman and Styman [2003] NSWSC 93
- Wilson v R [1992] HCA 31; 174 CLR 313