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Supreme Court 3 March 2023

R v Songcuan (No 3)

[2023] NSWSC 183

Homicide
PAROLE PERIOD

Citation: R v Songcuan (No 3) [2023] NSWSC 183
Court: Supreme Court of New South Wales
Date: 3 March 2023
Judge: Campbell J

Background

The offender, a 73-year-old Filipino-Australian man, was charged with murdering his wife of 44 years on 2 May 2020. He strangled her in the garage of their home with the admitted intention of killing her. He had offered to plead guilty to manslaughter throughout the Local Court proceedings and maintained that plea on arraignment.

After an eight-day trial, the jury acquitted the offender of murder but convicted him of manslaughter. The jury had been directed to consider two alternative bases for that verdict: manslaughter by excessive self-defence under s 421 of the Crimes Act 1900 (NSW), and manslaughter by extreme provocation under s 23. Different jurors may have taken different pathways to the same verdict.

The sentencing proceeding turned on the precise circumstances in which the killing occurred. The Crown contended the offender had lured his wife into the garage following a confrontation two days earlier. The offender's account was that his wife had burst into his bedroom that morning, struck him with a rolled canvas photograph, threw a remote control hard enough to shatter it, and then followed him downstairs into the garage, where she picked up pliers and threatened him before he strangled her.

  • What were the facts of the offending, to the extent required for sentencing, and were they consistent with the jury's verdict?
  • Which category of manslaughter was established for sentencing purposes: excessive self-defence or extreme provocation?
  • What was the appropriate objective seriousness of the offence, given the contested circumstances and the offender's post-offending conduct?
  • What weight should be given to the offender's advanced age, otherwise exemplary character, and the domestic violence context?
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio.

Decision

Campbell J accepted the offender's account of the events of the morning of 2 May 2020 as at least reasonably possible, and was not satisfied beyond reasonable doubt that the Crown's version was correct. His Honour noted the broader pattern of marital breakdown and the wife's established history of aggression toward the offender, which was corroborated by evidence beyond the offender's own account. On that basis, the sentencing proceeded on facts consistent with extreme provocation.

The offender's post-offending conduct, particularly his attempt to stage the scene as a suicide and leaving a note for his daughter, elevated the objective seriousness of the offence to some degree. However, Campbell J found this was a misguided attempt to shield his daughter from the truth, and that the offender's subsequent frank admissions to police amounted to something tantamount to a full confession. This conduct did not, in his Honour's view, demonstrate that the offender's account was false.

Campbell J identified several significant mitigating factors: the offence was a serious but uncharacteristic single loss of control; the offender had led an otherwise exemplary life with no prior criminal record; he was of advanced age, having been 70 at the time of the offence; and he had already spent approximately three years in custody. His Honour balanced these factors against the gravity of any taking of life and the domestic violence context, which the High Court in Munda v Western Australia has made clear must not be minimised in sentencing.

On special circumstances, Campbell J found it appropriate to reduce the non-parole period from the statutory 75 per cent to two-thirds of the total sentence. The relevant considerations were the uncertainty arising from the delay in finalising the prosecution and the fact that this was the offender's first time in custody at an advanced age, both of which increased the importance of the additional term to allow adequate supervised transition.

Orders Made

  • Total term of imprisonment: 7 years and 6 months
  • Non-parole period: 5 years, commencing 2 May 2020 and expiring 1 May 2025
  • Additional term: 2 years and 6 months, commencing 2 May 2025 and expiring 1 November 2027
  • First eligible for parole: 1 May 2025
  • The offender was advised under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) that the Attorney General may apply for continued detention or extended supervision upon expiry of the sentence

Key Takeaways

  • A sentencing court is not bound by the jury's pathway to a manslaughter verdict and must make independent findings of fact, provided those findings are consistent with the verdict; the court applies the beyond reasonable doubt standard to facts adverse to the offender, and the balance of probabilities to mitigating factors.

  • No category of manslaughter is inherently more or less serious than another for sentencing purposes; as confirmed in R v Isaacs, objective seriousness depends on the individual circumstances of each case, and the available sentencing range is notoriously wide.

  • Advanced age at the time of offending is a recognised mitigating factor in sentencing, particularly where the offender is a first-time custodian and the additional term serves a meaningful rehabilitative purpose.

  • Under the standard non-parole period provisions, special circumstances justifying a departure from the 75 per cent ratio can arise from a combination of factors, including prosecution delays and the particular difficulties of a first custodial experience at an advanced age.

  • The domestic violence context of a killing cannot be minimised in sentencing, consistent with the High Court's guidance in Munda v Western Australia, even where significant provocation is found; the court must account for the gravity of any taking of life within a domestic relationship.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 23 (extreme provocation), 421 (excessive self-defence)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 30E
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 13

Cases
- R v Isaacs (1997) NSWLR 374
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 6
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Killic v R (2016) 259 CLR 256; [2016] HCA 48
- Fuller v R [2022] NSWCCA 203
- Paterson v R [2021] NSWCCA 273
- Liu v R [2023] NSWCCA 30
- Gulyas v Western Australia [2007] WASCA 263; 178 A Crim R 539
- R v Blacklidge (Unreported, 12 December 1995, NSWCCA)