Citation: R v Henry [2025] NSWSC 1523
Court: Supreme Court of New South Wales
Date: 16 December 2025
Judge: McNaughton J
Background
Tao Cheng, a 25-year-old Chinese international student studying at the University of New South Wales, died in December 2022 following a sustained assault over approximately two hours in a stairwell in Sydney's CBD. The offender, referred to here as the defendant, was present during the assault alongside another man, whose trial remained pending at the time of sentencing.
The defendant faced a jury trial for murder commencing in August 2025. The jury was unable to reach a verdict and was discharged on 11 September 2025. The Crown had put the murder case on three bases: joint criminal enterprise, extended joint criminal enterprise, and constructive murder, with manslaughter left as an alternative.
Approximately three weeks after the jury's discharge, the defendant pleaded guilty to manslaughter by way of an unlawful and dangerous act arising from an extended joint criminal enterprise. The Crown accepted that plea in full satisfaction of the indictment. The defendant had made two earlier offers to plead to manslaughter, both of which the Crown had rejected.
Legal Issues
- What findings of fact could be made about the defendant's role in the assault, given the agreed factual basis for the plea?
- What was the objective seriousness of the offence, and how did the defendant's moral culpability fall to be assessed?
- What weight should be given to the defendant's guilty plea, including its timing following a failed murder trial?
- What discount, if any, was warranted for past and anticipated future assistance to law enforcement authorities?
- Whether special circumstances existed to justify a departure from the standard non-parole period ratio?
Decision
Objective seriousness and moral culpability: McNaughton J assessed the offence as serious, involving the death of a young man in a prolonged and brutal assault. The court noted that manslaughter is an offence of wide range and "protean character," and that comparing it against other manslaughters was unlikely to be of utility. The defendant's culpability arose from participation in an extended joint criminal enterprise: he was present throughout, obtained a firehose and brought it into the stairwell, and made admissions acknowledging his presence. His account that he had tried to stop the assault and subsequently sought to appease the principal offender was considered in assessing his moral blameworthiness.
Guilty plea: The court considered the timing and circumstances of the plea. The defendant had made two earlier offers to plead guilty to manslaughter, both rejected by the Crown, before ultimately pleading three weeks after the jury's discharge. McNaughton J accepted that the plea was entitled to a meaningful discount, though its timing after a failed murder trial reduced the utilitarian value compared to an early plea. The court treated the plea as part of a combined discount alongside assistance.
Assistance to authorities: The defendant provided past and anticipated future assistance to law enforcement. The court applied the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) governing discounts for assistance, and factored this into a combined 40% reduction alongside the guilty plea discount.
Special circumstances: McNaughton J found special circumstances existed, justifying a non-parole period shorter than the statutory default ratio of two-thirds of the head sentence. The court considered that a longer period on parole would benefit both the defendant and the community, allowing for supervised support to assist his rehabilitation including addressing drug use and facilitating his reintegration.
Starting point and sentence: The court started at 10 years imprisonment and applied a 40% reduction for the guilty plea and assistance combined, arriving at a head sentence of 6 years. A non-parole period of 3 years and 3 months was set. The sentence was backdated to commence on 20 December 2022.
Orders Made
- The defendant was sentenced to 6 years imprisonment for the manslaughter of the victim.
- A non-parole period of 3 years and 3 months was set, commencing 20 December 2022 and expiring 19 March 2026.
- An additional term of 2 years and 9 months was set, commencing 19 March 2026 and ending 19 December 2028.
Key Takeaways
- A combined 40% discount applied to both the guilty plea and assistance to authorities, starting from a 10-year base, resulting in a 6-year head sentence for manslaughter arising from extended joint criminal enterprise.
- Earlier rejected offers to plead guilty to manslaughter were relevant to the plea discount assessment, even where the eventual plea came after a hung jury at a murder trial.
- Under the extended joint criminal enterprise basis for manslaughter, a defendant's presence, acts in furtherance of the enterprise (such as obtaining a weapon), and admissions could ground liability even where the principal physical assault was carried out by another person.
- Consistent with Paterson v R [2021] NSWCCA 273, the sentencing court declined to place the offence on a comparative scale of manslaughters, instead assessing objective seriousness and moral culpability on the particular facts.
- Special circumstances were found, resulting in a non-parole period representing just over half the head sentence, on the basis that extended parole supervision would better serve the defendant's rehabilitation and community protection.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 24 (maximum penalty for manslaughter: 25 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 21A, 23, 25A, 25E, 44
- Evidence Act 1995 (NSW), s 128
Cases:
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Paterson v R [2021] NSWCCA 273
- R v CLD [2015] NSWCCA 114
- R v Forbes [2005] NSWCCA 377; 160 A Crim R 1
- Tepania v R [2018] NSWCCA 247; 275 A Crim R 233
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54