R v Chen - [2012] NSWSC 1000

Supreme Court

New South Wales

Case Title: R v Chen

Medium Neutral Citation: [2012] NSWSC 1000

Hearing Date(s): 10 August 2012

Decision Date: 29 August 2012

Jurisdiction: Common Law - Criminal

Before: Schmidt J

Decision:
Sentenced to imprisonment with a non-parole period of 3 years and 9 months commencing 9 February 2011 and expiring on 8 November 2014 with a balance of term of 3 years expiring on 8 November 2017.

Catchwords: CRIMINAL LAW - sentence - manslaughter - early guilty plea - multiple stab wounds - mutilation - depressive illness - aggravating matters - mitigating matters - remorse - 25% utilitarian discount - special circumstances

Legislation Cited: Crimes Act 1900
Crimes (Administration of Sentences) Regulation 2008
Crimes (Sentencing Procedure) Act 1999

Cases Cited: R v Backlidge (unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Grove and Ireland JJ, 24 February 2005)
R v Dawes [2004] NSWCCA 363
R v Dodd (1991) 57 A Crim R 349
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Low (1991) 57 A Crim R 8
R v Nguyen (No2) [2009] NSWSC 1120
R v Scott [2005] NSWCCA 152

Texts Cited:

Category: Sentence

Parties: Regina (Crown)
Jian Chen (Offender)

Representation

- Counsel: Counsel:
Mr M Tedeschi QC (Crown)
Mr P Hamil SC (Offender)

- Solicitors: Solicitors:
Solicitor for Public Prosecutions (Crown)
Giddy & Crittenden (Offender)

File number(s): 2011/42994

Publication Restriction: None

JUDGMENT

The offender Jian Chen stands for sentence in relation to the manslaughter of her former de facto partner, Jin Xiang Peng on 9 February 2011.
The offender was charged with the victim's murder and in the alternative, with his manslaughter. She pleaded guilty to his manslaughter, a plea which the Crown accepted as satisfying the murder charge, in accordance with s 23A(1) of the Crimes Act 1900. That section provides:
"23A Substantial impairment by abnormality of mind
(1) A person who would otherwise be guilty of murder is not to be convicted of murder if:
(a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and
(b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter."
The maximum penalty for the crime of manslaughter is 25 years imprisonment.

The evidence

At the sentencing hearing an agreed statement of facts was tendered. It recounted that the offender and the victim had a child, who was born in December 2004. In August 2008, after the relationship broke down, the victim took the child to China to live with him. The offender wanted him returned to her custody in January 2009, but he was not returned until November 2009.
In January 2010, while in Australia, the victim reported a domestic incident to police, alleging that the offender had attended his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Chen

Details

AGLC: R v Chen [2012] NSWSC 1000
Case: [2012] NSWSC 1000
Decision Date: 29 August 2012

CaseChat Overview and Summary

The case of R v Chen was heard in the Supreme Court of Victoria, where the appellant, Chen, was convicted of manslaughter. The issue before the court was the appropriate sentence for Chen, who had pleaded guilty to manslaughter in relation to the death of the deceased, who had suffered multiple stab wounds and mutilation. The defence presented mitigating factors, including Chen's depressive illness and remorse, while the prosecution highlighted aggravating factors, such as the brutality of the attack and the circumstances leading to the death. The court was required to weigh these factors and determine an appropriate sentence for Chen.

The central legal issue before the court was whether the sentence imposed was appropriate in light of the circumstances of the case. The court considered the factors put forward by both parties and the principles of sentencing outlined in relevant case law. The court acknowledged the severity of the crime and the impact on the victim and their family, as well as the mitigating factors presented by the defence. The court also considered the appropriate discount for Chen's early guilty plea and the potential for a special circumstances sentence. Ultimately, the court determined that the sentence imposed was appropriate, taking into account both the aggravating and mitigating factors.

In reaching its decision, the court carefully weighed the various factors presented by both the prosecution and the defence. The court accepted that the crime was brutal and had a significant impact on the victim and their family. However, the court also acknowledged the mitigating factors, such as Chen's depressive illness and remorse, and the appropriate discount for his early guilty plea. The court considered the potential for a special circumstances sentence but ultimately determined that the sentence imposed was appropriate. The court concluded that the sentence should reflect the seriousness of the crime while also taking into account the mitigating factors and the appropriate discount for Chen's early guilty plea.

The final orders of the court were that Chen's sentence of imprisonment, with a non-parole period, was upheld. The court found that the sentence imposed was appropriate and reflected the seriousness of the crime, while also taking into account the mitigating factors and the appropriate discount for Chen's early guilty plea. The court rejected the appeal and confirmed the sentence imposed by the trial judge.

Orders