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Supreme Court 17 April 2015

R v Wang

[2015] NSWSC 433

HomicideDomestic & family violence
CRIMINAL LAW REMARKS ON SENTENCE PLEA OF GUILTY TO MURDER INTENTION TO KILL LOSS OF CONTROL EVIDENCE OF DEEP REMORSE BY OFFENDER

Citation: R v Wang [2015] NSWSC 433
Court: Supreme Court of New South Wales
Court: Supreme Court of New South Wales
Date: 17 April 2015
Judge(s): Button J

Background

The offender, a Chinese national working as a corporate lawyer in Beijing, had been in a romantic relationship with the deceased, an accountant working in Newcastle. After a period of long-distance contact, he travelled to Australia in February 2013 intending to begin a new life with her. Within hours of his arrival, the deceased told him she wished to end the relationship and continue seeing another man.

In the early hours of 25 February 2013, following an escalating series of conversations through the evening and into the night, the offender attacked the deceased in her Newcastle apartment with a meat cleaver taken from her kitchen. The attack was prolonged and sustained, causing severe injuries including defensive wounds and blood in multiple rooms. The offender embedded the cleaver in the deceased's throat with significant force. The deceased died as a result.

The offender pleaded guilty to murder in the Local Court in May 2014 and adhered to that plea on arraignment in the Supreme Court. The matter came before Button J for sentencing.

  • What was the appropriate head sentence and non-parole period for a guilty plea to murder, taking into account the standard non-parole period of 20 years as a guidepost?
  • What weight should be given to mitigating factors, including the offender's loss of control, prior good character, deep remorse, and guilty plea?
  • What aggravating features of the offence bore on the exercise of the sentencing discretion?
  • How should disputed facts be approached, particularly as to the deceased's words in the lead-up to the offence?
  • How should the victim impact statement be treated under the applicable transitional provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW)?

Decision

Button J was satisfied beyond doubt that the offender intended to kill the deceased. The attack was not brief: the extent of defensive wounds and the presence of blood in more than one room demonstrated a prolonged ordeal for the deceased. His Honour found that the offender had been in a blind rage and had completely lost self-control at the time of the attack, accepting that the reference to "respect" in the police interview related to the offender's state of mind as the argument intensified rather than to his state of mind during the killing itself.

On the disputed facts, his Honour accepted the contents of the recorded police interview on the balance of probabilities but did not accept the further claims made by the offender to the psychologist, psychiatrist, and in the witness box, including that the deceased had made harsh comments about his mother. His Honour identified several factors that, taken together, explained the loss of control: shock at the relationship ending, cumulative humiliation following his earlier arrest and imprisonment in China, jealousy, resentment at having abandoned his career, a sense of isolation having arrived in Australia less than 24 hours earlier, and fatigue.

In mitigation, Button J gave significant weight to the offender's prior good character, the absence of any history of violence or anger, evidence of deep remorse, the difficult personal circumstances preceding the offence, and the guilty plea. His Honour also took into account the elements of provocation, noting they did not constitute a defence but were relevant to moral culpability. Against these factors, his Honour weighed the severity and duration of the attack, the fact that it occurred in the deceased's own home, and the specific intention to kill.

The Crown did not seek the maximum penalty of life imprisonment. Applying the standard non-parole period of 20 years as a guidepost under the Crimes (Sentencing Procedure) Act 1999 (NSW), and allowing a discount for the guilty plea, Button J determined that the offence, absent the plea, would have attracted a head sentence of 27 years. After the plea discount, a head sentence of 20 years with a non-parole period of 15 years was imposed.

Orders Made

  • The offender was convicted of murder.
  • Head sentence of 20 years imprisonment, commencing 25 February 2013.
  • Non-parole period of 15 years, commencing 25 February 2013.
  • Earliest possible release date to parole: 24 February 2028.

Key Takeaways

  • Button J confirmed that the standard non-parole period of 20 years for murder functions as a guidepost in the exercise of sentencing discretion, not a fixed benchmark, and may be departed from where mitigating factors are established.
  • A complete loss of self-control at the time of a killing does not negate the intention to kill, but may be relevant to moral culpability and to the weight given to partial provocation in mitigation.
  • Where disputed facts aggravate the offending, they must be proved beyond reasonable doubt; disputed facts operating in the offender's favour need only be established on the balance of probabilities.
  • Prior good character and an absence of any history of violence or mental illness are capable of carrying significant mitigating weight even in cases involving extreme and lethal force.
  • Under the transitional provisions applying to s 28 of the Crimes (Sentencing Procedure) Act 1999 (NSW) as they stood at the time, victim impact statements were to be treated in accordance with the long-standing principles set out in R v Previtera (1997) 94 A Crim R 76, rather than under the more recent amendments to that section.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 28
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases:
- R v Previtera (1997) 94 A Crim R 76