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Supreme Court 18 September 2020

R v Dong

[2020] NSWSC 1277

Homicide
CRIMINAL LAW SENTENCE MURDER PLEA OF GUILTY PREMEDITATED INTENT TO KILL

Citation: R v Dong [2020] NSWSC 1277
Court: Supreme Court of New South Wales
Date: 18 September 2020
Judge(s): Hidden AJ

Background

The offender pleaded guilty to the murder of a 28-year-old woman at a residential flat in Campsie on 8 June 2018. The two had been living in the same unit as co-tenants, with the offender having moved in approximately three weeks before the killing. He had given notice to move out and was due to leave the following day.

The victim was last in contact with her mother by phone at 7.16 pm on the evening of the murder. Between that time and approximately 10 pm, she was killed. The offender then transported her body in her own car and left it in a gully beside the M1 Motorway near Ku-ring-gai Railway Station, approximately 43 kilometres from the unit. Her remains were not located until 25 July 2018, following analysis of mobile phone location data.

The post-mortem was unable to determine the exact cause of death due to advanced decomposition, though a shirt tied tightly around the victim's neck was identified as a ligature. The offender's DNA was found on that shirt, inside the victim's car, and at the scene. The cause of death was recorded as "unascertained," though the pathologist noted that instrumental strangulation could not be excluded.

  • What is the appropriate head sentence for a guilty plea to murder, having regard to the objective gravity of the offence?
  • To what extent should premeditation and deliberate disposal of the body aggravate the sentence?
  • What weight should be given to the offender's youth, psychiatric conditions, intellectual impairment, and absence of criminal history as mitigating factors?
  • Whether a 25% discount for the guilty plea was appropriate in the circumstances.
  • Whether special circumstances existed to justify a departure from the statutory proportion between the head sentence and the non-parole period.

Decision

Hidden AJ found the murder to be premeditated. The Google searches conducted two days before the killing, in which the offender searched for information about how intentional homicide is sentenced in Australia and what constitutes such an offence, were central to that finding. The court rejected an account the offender provided to a psychiatrist about the circumstances of the killing. Neither the precise manner of death nor the motive was established.

The disposal of the body was treated as a significant aggravating feature. The offender searched for locations around Sydney after the killing before transporting the body to a remote roadside gully, leaving it partially undressed among shrubbery. Hidden AJ regarded this conduct as deliberate concealment that added considerably to the gravity of the offence.

The offender's subjective circumstances were considered at length. He was 19 years old at the time of the offence, had no criminal history, and was assessed by a psychiatrist as having intellectual impairment and ongoing psychotic symptoms. The court accepted that imprisonment would be more burdensome for him given his language barrier, vulnerability, and isolation as a foreign national without family in Australia. However, these factors were weighed against the seriousness of a premeditated killing and the court expressed only a guarded view on prospects for rehabilitation.

A 25% reduction was applied for the guilty plea. The court declined to find special circumstances warranting a departure from the statutory non-parole period proportion, concluding that the parole eligibility period resulting from the standard proportion remained substantial, and that no lesser non-parole period would adequately reflect the offender's criminality.

Orders Made

  • Head sentence: 18 years' imprisonment (after 25% guilty plea discount from a 24-year base term)
  • Non-parole period: 13 years and 6 months, commencing 9 June 2018, expiring 8 December 2031
  • Balance of term: 4 years and 6 months, commencing 9 December 2031, expiring 8 June 2036
  • Eligible for release on parole: 9 December 2031

Key Takeaways

  • Premeditation was established through circumstantial evidence, specifically internet searches conducted two days before the killing that inquired into how intentional homicide is sentenced in Australia.
  • Deliberate disposal of a victim's body at a remote location constituted a significant aggravating factor in the assessment of objective seriousness.
  • A 25% sentencing discount for a guilty plea to murder was applied, with the base term set at 24 years before reduction.
  • Psychiatric vulnerability, intellectual impairment, youth, and the additional hardship of imprisonment as a foreign national without local support were accepted as relevant mitigating considerations, though they did not substantially reduce the sentence given the gravity of the offence.
  • Where the statutory non-parole period proportion already produces a substantial period of parole eligibility, the Supreme Court confirmed it will not lightly depart from that proportion on the ground of special circumstances.

Legislation and Cases Referenced

Legislation:
- Statutory provisions governing the proportion between head sentence and non-parole period (New South Wales, specific provision not named in the judgment)

Cases:
- Sentencing decisions in comparable murder cases in the Supreme Court of New South Wales were considered but not individually named in the judgment.