R v Dong

[2020] NSWSC 1277

Supreme Court

New South Wales

Medium Neutral Citation:	R v Dong [2020] NSWSC 1277
Hearing dates:	6 August 2020
Decision date:	18 September 2020
Jurisdiction:	Common Law
Before:	Hidden AJ
Decision:	Sentenced to imprisonment for 18 years, NPP 13 years and 6 months commencing on 9 June 2018
Catchwords:	CRIMINAL LAW – sentence – murder – plea of guilty – premeditated – intent to kill – aggravated by disposal of the body – manner of death and motive not disclosed.
Category:	Sentence
Parties:	Regina (Crown) Shuo Dong (Offender)
Representation:	Counsel: Mr G Harrison (Crown) Mr N Steel (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Offender)
File Number(s):	2018/182685
Publication restriction:	Nil

REASONS FOR SENTENCE

1. The offender, Shuo Dong, has pleaded guilty to the murder of a young woman, Qi Yu, at a flat in Campsie where they were living on Friday, 8 June 2018. Ms Yu was 28 years old. She was born and raised in China and came to Australia in 2009, at the age of 18. The offender stands for sentence for that crime.

2. The Crown and the offender accepted as agreed facts a comprehensive Crown case statement, setting out the circumstantial case against the offender if the matter had proceeded to trial. The parties provided a helpful overview of the facts, based on the Crown case statement, upon which the following recitation of the facts is based.

Facts

Background

3. The deceased, Qi Yu, was 28 years old and lived at 4/3 Loch Street Campsie. She used one of the bedrooms upstairs and a female flatmate, Jianing Wu, used the other. The offender moved into the unit on 20 May 2018 and used the downstairs bedroom. There was a lounge room, kitchen and bathroom downstairs, and the offender was not allowed to go upstairs. The offender paid $880, which was four weeks’ rent. He then told Ms Yu he wanted to move out and was due to do so on 9 June 2018. She gave the offender $440 back and they did not argue.

The events of 8 June 2018

4. At about 6pm on Friday 8 June 2018 the offender returned to the unit and Ms Yu was at home. At 7.16pm she was communicating with her mother on the WeChat application. At that time she sent her mother a message saying that there was a power outage at the unit. When she did not respond to further messages, her mother contacted a neighbour and asked her to check on her daughter.

5. The neighbour called at the unit, and eventually the offender answered the door. The unit was in darkness, so the neighbour went inside, checked the fuse box and saw that the mains switch had been turned off. The offender had turned it off manually. The neighbour turned the switch on, and the lights came on. The offender told the neighbour that Ms Yu was out to dinner.

6. At 8.30pm Ms Wu returned home from work. As she walked upstairs, she noticed a red mark about 13 cm in diameter on the carpet on the stairs.

7. Some time between 7.16pm and 10pm the offender murdered Ms Yu.

8. Between 10pm and 10.30pm the offender took her body, in her car, and left it in a gully at the side of the M1 Motorway near Ku Ring Gai Railway Station.

The events of 9 June 2018

9. At about 8.45am on 9 June the neighbour went back to the unit at the request of Ms Yu’s mother. Ms Wu answered the door, and when it was discovered that Ms Yu was not in her room the police were called. When police arrived they noticed blood stains on the stairs and wooden floor.

10. The offender arrived at the unit in his friend’s car at about 9.25am. He told police that he last saw Ms Yu at about 5pm the previous evening.

11. Police saw further blood stains in Ms Yu’s bedroom and in the downstairs bathroom, and they established a crime scene.

Interview with offender on 9 June 2018

12. The offender attended Campsie Police Station and voluntarily took part in an interview. He told police he had never been upstairs in the unit or in Ms Yu’s car. He said the rent was too high, he had given Ms Yu notice about one week earlier and they had not argued.

13. The offender said he had last seen Ms Yu about 6.30pm the previous evening in the lounge room. He said he had been in his room watching TV when he heard her leave the house.

14. The offender said he went out for dinner at about 8.30pm and came home between 11pm and midnight. He said he had nothing to do with the Ms Yu’s disappearance.

15. The offender was then arrested, appeared to faint, and was admitted to Concord Hospital.

Interview with offender on 12 June 2018

16. Doctors were of the opinion it was “highly likely that [the offender’s] behaviours are malingering or factitious” and he was released into police custody on 12 June. He was arrested and, when interviewed again, generally responded, “I don’t know” and “I don’t remember.” He was then charged.

Further police investigations

17. Police found the key to Ms Yu’s car under the driver’s side floor mat in the offender’s friend’s car. Her car was found outside the offender’s friend’s house. The offender’s fingerprint and DNA were found in various places inside her car.

Interview with offender on 11 July 2018

18. The offender was interviewed again on 11 July, and when police told him his fingerprint and DNA had been found inside Ms Yu’s car, he said he would explain this in court and to his solicitor.

Finding Ms Yu’s body

19. On analysis of data from the offender’s mobile phone, police discovered that it had travelled on the M1 Motorway north of Sydney to an area near Ku Ring Gai Railway Station on the night of her disappearance. On 25 July 2018 police travelled to the spot indicated by the data, which was an emergency stopping area, close to Ku Ring Gai Railway Station, about 43 kilometres from the unit. Within a short distance of the road, police discovered her remains. Her body was lying at the bottom of a gully amongst dead branches and shrubbery. The bottom half of the body was undressed and exposed, as was most of the torso. A long-sleeved business shirt was tied around her neck. The body was situated about 3 to 5 metres from the railing bordering the motorway.

20. The offender’s DNA was found on the mid-forearm area of both of the sleeves of the long-sleeved shirt found as a ligature around her neck, and on two other areas of one of the sleeves.

Post-mortem report

21. A post mortem report noted the direct cause of death to be “unascertained.” A ligature in the form of a shirt was noted to be present tightly around Ms Yu’s neck, the hyoid was intact, and no injuries were noted with the neck dissection. There was extensive decomposition and it was concluded:

At autopsy, the ligature is secured tightly around the neck of the deceased. The layered dissection of the neck in the anterior aspect shows extensive decomposition changes. The extent of the decomposition, with subsequent tissue loss, could mean that underlying injuries which may have been present in the muscles or soft tissue, cannot be visualised. In cases of instrumental strangulation, the injuries noted to the neck will depend, amongst other factors, upon the type of ligature used, area of the neck covered by the ligature, amount of pressure applied, and the duration for which the pressure is applied. The absence of underlying fractures of, for example, the hyoid, does not exclude instrumental strangulation.

Google data searches

22. Searches of the data on the offender’s phone revealed a Google search made, and a number of webpages visited, on 6 June 2018, two days before Ms Yu’s murder, between 3.44pm and 3.52pm. The following occurred:

1. A ‘Google search’ was made for “How would Homicide be sentenced in Australia”.

Webpages with the following titles were then visited:

2. “Legal knowledge, how many years would intentionally (sic) homicide be given in Australia”.

3. “The sentencing criteria for intentional homicide. What expenses must be compensated for after intentional homicide”.

4. “What are the characteristics of intentional homicide? And how to properly determine intentional homicide”.

5. “Australian Chinese life knowledge, our steps, life and other staff, comparison of underage criminal offence sanction between China and Australia”.

23. On 8 June 2018 from 9.33pm the offender made about 18 searches of different areas around Sydney including the Royal National Park, St Ives, St Ives Chase, Mount Colah and Berowra. At 11.42pm and at 6.46am the following morning, the offender searched for the address of his friend, whose car he used the following day.

The charging of the offender

24. The offender was charged on 12 June 2018 and has remained in custody since that date.

25. It will be noted that this recitation of the facts does not encompass any admission by the offender as to how he killed Ms Yu, or why he did so. As will be seen, he provided an account of the circumstances of the killing to a psychiatrist who had examined him while in custody, but I do not accept it.

Subjective case

26. The offender was 19 years old at the time of the offence, and is now 21. He also is a Chinese national, who came to this country in September 2017 on a tourist visa. In November 2018 he applied for a protection visa and was granted a bridging visa. However, his application for a protection visa was refused in March 2018, and is currently the subject of a merits review.

27. He has no criminal record. Evidence of his background comprises his own account to a psychiatrist engaged by his legal representatives, Dr Sathish Dayalan, and a statement of his mother, Jianfang Chen. He did not give evidence.

28. He was brought up, apparently, in a rural area of China. He told Dr Dayalan that he has two older sisters. His mother’s statement discloses that he was born prematurely by her taking an injection of oxytocin to induce his birth. At that time, China had its one child policy and was very strict with family planning. She wrote that he had a low IQ and could only utter a few words until he was 5 years old. A doctor told her that this may have been associated with the oxytocin injection.

29. His mother described him as having been “timid and silent” from his childhood. He was educated to Year 6 standard. At that time he was at a boarding school, and his mother recounted an incident when he was assaulted, apparently quite seriously, by two of his classmates. His parents were notified the following morning, and he was admitted to hospital. Thereafter, according to his mother, he did “much less talking”, and became introverted and reclusive.

30. He told Dr Dayalan that he did not have many friends at school or in his adult life. He worked as a kitchen hand in China, but his mother recorded that he was dismissed, his employer saying that there was something wrong with him and that he was “different from normal people”. Thereafter, he helped her with farm work.

31. His parents wanted him to study abroad but his mother recorded another violent incident in the year before he came to Australia. Put shortly, he was seriously assaulted by a man who apparently thought he was someone else. He was again taken to hospital, and on this occasion he was observed to have suffered serious injuries to his chest, his eyes and his brain. He was found to have had severe concussion and suffered vision loss. He was in hospital for over a month.

32. His mother recorded an incident six months later when he had a dispute with his father over a trivial matter. He picked up a kitchen knife and cut his father on the arm. After the incident he “blamed himself deeply”, and said that he couldn’t control himself when it happened. Since then, his mother wrote, he had been “withdrawn” and his parents wanted him to leave and “learn the culture and knowledge” of this country.

33. He told Dr Dayalan that he had worked here in the construction industry. It appears that he was working with people of his own nationality and that his command of English is limited. He was interviewed by Dr Dayalan with the aid of an interpreter, and required an interpreter in Court.

Mental Health

34. Dr Dayalan provided a comprehensive report of 7 May 2020, and gave evidence in the sentence proceedings. For this purpose he interviewed the offender by audio visual link on 1 May 2020. He had earlier interviewed him (again with the aid of an interpreter) in October 2019 for the purpose of examining the issue of fitness to stand trial and possible defences of mental illness or substantial impairment. He prepared a report on that occasion but it was not tendered in these proceedings.

35. The offender refused to be interviewed by Dr Stephen Allnutt, the psychiatrist engaged by the Crown. However, Dr Allnutt reviewed relevant material (including Dr Dayalan’s recent report) and provided a report, and he also gave evidence.

36. The offender told Dr Dayalan that he felt suicidal, and unable to control his emotions, at the age of 13. He thought this was because he was teased by other children in his school. When he was about 14 years old he had been diagnosed with a depressive disorder and prescribed sleeping medication. It appears, however, that he had never otherwise been diagnosed with a mental illness or treated for any kind of mental disorder prior to his admission into custody following his arrest.

37. He gave Dr Dayalan a history of psychotic symptoms from the age of 13. He described auditory hallucinations, which he thought were of a derogatory nature. He said that he experienced a feeling that he was being followed by a ghost. He described delusions of reference, saying that at times he felt that he was in a television program. He said that he believed that God spoke to him and told him that he was capable of seeing things that other people could not. He expressed a suspicion that some people would know what he was thinking. He also said that he had had problems with his memory for a number of years.

38. Dr Dayalan noted that, when asked to provide further details about these unusual experiences, his responses were vague. When asked to expand upon his belief that God had spoken to him, he said that he did not know how to explain it. Nor could he explain how others would know about his thoughts. Dr Dayalan described him generally as “a vague historian”, who did not always answer questions asked of him. Reporting his mental state examination, Dr Dayalan noted his description of “ongoing auditory hallucinations and persecutory beliefs”, but did not observe any “overt disorder in his thought form”.

39. In his report, Dr Dayalan summarised his examination of mental health records relating to the offender since his initial arrest on 9 June 2018 when, as noted above, he was admitted to Concord Hospital. The opinion that his behaviour there was likely to be “malingering or factitious” followed observations of “multiple inconsistent and fluctuating neurological signs and symptoms”. He was said to have been uncooperative with assessment, and it was observed that “despite the bizarreness of his behaviour, he did not appear to be psychotic and his behaviour had appeared calculatedly obstructive”.

40. In his report, Dr Dayalan also summarised his examination of records of Justice Health extending from June 2018 to January 2020. On the day of the sentence proceedings he was provided with further records up to early June 2020.

41. In June 2018 the offender disclosed an act of deliberate self harm in 2011 when he stabbed his right hand with a knife. He also complained of chronic memory loss. Otherwise, the records disclose his persistent complaints of auditory hallucinations and persecutory delusions, both in the past and the present. He was also observed to present with disorganised thought form.

42. In July 2018, a psychiatrist considered his description of hallucinations and delusions as “ambivalent and vague”, noting that he was quite “guarded” when asked about his beliefs. Nevertheless, the doctor thought he had a “possible psychotic illness”. Throughout 2018 and 2019 he was assessed by different psychiatrists as suffering from “psychosis, possible intellectual disability and mood disorder”, as having “emerging psychotic illness on a background of some cognitive difficulties and personality vulnerabilities”, and as suffering from “long standing schizophrenia”.

43. In September 2018, there was recorded a “brief cognitive assessment” which noted “deficits in memory, judgement and drawing”. Also noted at that time was information from one of the offender’s sisters referring to some of the material in his mother’s statement, but adding that he had been a “poor student” (although no psychiatric issues had been noted).

44. In oral evidence, Dr Dayalan referred to an assessment later in that month which was said to indicate “significant/broad cognitive impairments” and noted a referral for a neuropsychiatric assessment. Dr Dayalan suspected that there had been such an assessment subsequently, noting a reference in November 2018 that the validity of neuropsychological tests was unclear and that there was inadequate collateral information “to form an informed opinion”. The offender was said to present with “some degree of cognitive impairment”, but the author of the entry could not determine “whether he has an intellectual disability, acquired brain injury, malingered impairment or other causes of cognitive impairment”. It was said that no formal diagnosis or recommendations could be made at that stage.

45. A number of the entries over the period from June 2018 to June 2020 disclose that he was frequently not compliant with antipsychotic medication, and expressed the view that he did not have a mental illness. Recent entries in the material provided to Dr Dayalan at the sentence hearing referred to his having been observed “responding to internal stimuli”, usually as a result of experiencing auditory hallucinations. On one occasion he was seen to be talking loudly in Chinese and laughing when he was in a cell.

46. In March 2019, he reported that he had heard his mother’s voice warning him that there was another inmate who wanted to hurt him and members of his family. He said that he had wanted to kill this inmate. In January 2020, he was involved in a physical altercation with another inmate, saying that he had been punched by that inmate and had retaliated with a shiv. He described “vague and poorly elaborated symptoms” of hearing a voice asking him to kill that inmate and seeing him on television and on the mirror in the cell. He presented as “highly agitated” and had threatened to kill that person.

47. In that same month he reported to a psychiatrist, Dr Hannon, that voices from a friend had been commanding him to engage in violence. He was observed apparently to be talking to this friend openly during the interview, but did not appear to be responding to any auditory hallucinations. Dr Hannon noted his impression as “psychosis not obvious; historical accounts of delusions and voices but the current observations are of pseudohallucinatory and a feigned nature; should still be observed for schizophrenia as a precaution given his strong violence history”.

48. As to the offence, in an interview in January 2020 he told Dr Spencer that Ms Yu had made offensive comments about his mother and had refused to pay him the money she owed, whereupon he grabbed her head and hit it on a wooden table. When interviewed by Dr Dayalan, he was not prepared to go into the details of the offence but said repeatedly that he had not intended to kill Ms Yu. He said that he had had an argument with her that day. He wanted to move out of the unit, but she wanted him to remain until she found a replacement tenant. He said that he wanted to move out because he was worried that she would report him to the Immigration Department.

49. Despite his refusal to provide details of the offence, he spoke positively about Ms Yu, saying that she had treated him well, and said that he felt very guilty and very ashamed about his behaviour. He became tearful and Dr Dayalan believed him to be genuinely distressed.

50. Dr Dayalan noted the lack of a satisfactory assessment of the offender’s intellectual functioning. On the limited information available, the doctor concluded that he could not be diagnosed as suffering from an intellectual disability but should appropriately regarded as of “subnormal intelligence”.

34. As to mental illness, Dr Dayalan noted the varying opinions of health professionals on the issue. He also noted instances of the offender “exaggerating symptoms and presenting in an affected manner”, but added that this behaviour “does not rule out the presence of an underlying psychotic illness and may be indicative of inept efforts of an individual with intellectual impairment to achieve secondary gain from having a diagnosis of mental illness”. He noted the offender’s repeated description of persecutory beliefs and auditory hallucinations, together with the more recent observations of his responding to internal stimuli. He also observed from the Justice Health records that, despite the offender’s pattern of non-compliance with antipsychotic medication, there had been some improvement in his mental state at one stage when he was compliant.

35. In his report Dr Dayalan concluded that the offender should be regarded as suffering from schizophrenia. That had also been his diagnosis after his earlier consultation in October 2019, and in oral evidence he said that the additional material that had been supplied to him “further supported” that conclusion. He added that the offender’s assertions that he did not have a mental illness were typical of the lack of insight frequently found in people with schizophrenia.

36. Dr Dayalan addressed the relationship, if any, between the offender’s mental illness and the offence. He considered the offender was probably suffering from psychotic symptoms at the time of the offence, given his longstanding history of those symptoms. However, he noted the offender’s varying accounts as to why he might have been upset with Ms Yu and, given his reluctance to discuss the details of his offending behaviour, he was unable to explore the relationship between his longstanding psychotic symptoms and the offence. On the limited information available, his opinion was that the offender’s psychotic disorder, together with his intellectual impairment, “probably impacted on his judgement and ability to consider the consequences of his behaviour”. However, he found no evidence to suggest that the offending behaviour “was directly influenced by his psychotic symptoms”.

37. Fleshing this out in oral evidence, Dr Dayalan described schizophrenia as a “chronic mental health condition” which affects a person’s cognitive capacity, and those cognitive symptoms persist whether or not that person is having positive symptoms, such as delusions or hallucinations. The condition would, in any event, “impact on their judgement”.

38. It appears from the statements of a number of witnesses who knew the offender, some of whom worked with him on a daily basis, that they did not observe him to display signs of mental illness. This includes the friend whose car he had used, who also worked with him. His employer noted that he had picked up his work skills quickly and had been “pretty sociable”, although towards the end of his period of employment he had complained of feeling tired and had asked to leave work early. Police who interviewed him on 9 June 2018 found him to be alert and cooperative, noting that he did not appear to be agitated or confused.

39. Taken to some of this material in cross examination, Dr Dayalan said that these witnesses were not mental health professionals and noted that he was observed to be “quite guarded” in the early stages of his coming into custody and that it was only after “repeated interactions” with him that he disclosed psychotic symptoms. The doctor said that the fact that these witnesses had not observed signs of mental illness did not “rule it out”. On the other hand, he added, his condition would have been evident to them if he had been “acutely unwell”.

40. Dr Allnutt acknowledged the limitation upon his capacity to provide any firm opinions because he had been unable to interview the offender. His report discloses his comprehensive review of the large body of material which was also available to Dr Dayalan. As I have noted, he also had Dr Dayalan’s report.

41. As to mental illness, Dr Allnutt noted the conflicting opinions of psychiatrics who had assessed him in custody. He also observed that the history of psychotic symptoms from the age of 13 emanates only from the offender’s self report. He noted that while he had been reporting symptoms in custody, he had also been denying mental illness, and in oral evidence he saw this as consistent with the lack of insight described by Dr Dayalan. He also thought it significant that he had recently been observed responding to “non apparent stimuli”. In oral evidence he said, “While I may be feeling uncertain and unable to confirm or refute that diagnosis, I am concerned that he probably has got schizophrenia”. Generally, he described the case as “vexing”.

42. As to neurocognitive impairment, Dr Allnutt described himself as “less convinced”. He noted the inconclusive outcome of neuropsychological testing thus far, saying in oral evidence that “the whole issue remains unclear and non-specific”. In arriving at that position he did not overlook the statement of the offender’s mother about the incidents of violence suffered by the offender (material which had not been available to those assessing him in custody). Like Dr Dayalan, he found no evidence that the offence was driven by psychosis, such as evidence “of incorporating the victim into a psychotic belief system before and/or after the offence”. He added that, in his view, if the offender had psychotic symptoms, “their effect on his judgement or awareness of consequences still lacks explanation”.

43. In his report, Dr Allnutt set out several factors which he saw as creating difficulties in drawing any conclusions on the material before him. These included the following:

Prior planning and post-offence behaviour related to hiding the body does not rule out a psychotically motivated offence but does make such a conclusion questionable. However, a notable contradiction in interview with Dr Dayalan is that he reported he did not intend to kill the victim, which suggests an impulsive act, but I understand there were Google searches that are consistent with prior planning.

Based on the information I have available to me, there has been ongoing concern about exaggeration, dating back to when he fainted in the police station soon after his arrest and until as recently as January 2020 there remains a lack of clarity of diagnosis.

While admitting the actus reus, the defendant has been reluctant to engage in the specifics surrounding the offence, such as the relationship between motive, decision-making related to and the nature of the actual offending behaviour, to enable adequate exploration of the mens rea.

There is no evidence of either IQ testing or neurocognitive testing to get clarity on his IQ, as to whether he actually has a subnormal intelligence or has cognitive impairment secondary to brain damage.

People with schizophrenia can commit offences that are rationally motivated despite symptoms.

61. In cross examination, Dr Allnutt agreed that people with schizophrenia sometimes experience symptoms and neither disclose them nor exhibit them to others, so that they may “appear normal to other people when they’re actually really experiencing effects of their illness”. He agreed that schizophrenia can cause cognitive deficits in people, even when they are not in a “psychotic phase”. Asked whether this could affect decision making and choices, however, he said that it would be necessary to know “the nature and severity of that impairment“, which is not clear “in the absence of some sort of testing”. He added, “…when it comes to a specific person and in particular a specific point and time and the specific circumstances, …one needs to be able to drill down to what it was that contributed to that particular behaviour at that time with that person. We don’t have that”.

Victim Impact Statement

62. I received a victim impact statement from Ms Yu’s parents, Zhihe Yu and Qin He. Mr Yu read the statement to the Court, which was obviously a difficult task for him. At times he became very emotional, as one would expect, but he persevered with courage and dignity. Apart from expressing their love of their daughter, the statement outlines her achievements and the promising future she had looked forward to. She had attained a Bachelor’s degree in Electrical Engineering and a Master’s degree in Telecommunications at the University of New South Wales. At the time of her death she held a responsible position in an electronic company. She had consistently maintained contact with her parents and had many good friends in this country.

63. The statement is a powerful and eloquent expression of their grief and outrage at the brutal and untimely death of their daughter, and the enduring effects this tragedy has had upon their lives. Their pain is increased by the offender’s failure to reveal exactly how their daughter met her death and what his motivation was. During the sentence proceedings I expressed my deepest sympathy to them and other members of the family, and I do so again now. My sentencing task requires consideration of a variety of factors, some of them pointing in different directions, and I am well aware that nothing this court can do could ever assuage their pain.

Sentencing factors

64. In the light of the offender’s Google search and access to webpages two days before the offence, I am satisfied beyond reasonable doubt that the murder was premeditated. It follows, of course, that the offender intended to kill Ms Yu. His counsel, Mr Steel, submitted that those actions two days before might have been coincidental or the product of mental illness. I cannot accept that they were coincidental, given that the search was made and the websites were visited so close to the day of the killing. Whether those actions might be related to mental illness is a matter to which I shall return but, even if they were, I am satisfied that they were directly related to the fatal event two days later.

65. Against that background, I am satisfied that on the night of the offence the offender turned off the power so as to lure Ms Yu from her bedroom, with the intention of killing her. It had been her custom to lock her bedroom when she was there. It may be true, as Mr Steel argued, that turning off the power was not something that required any real forethought but, in the circumstances, I cannot accept his submission that it could easily have been a spur of the moment action.

66. It follows from this that I reject the account of the offence the offender gave in custody to Dr Spencer to the effect that the killing was a spontaneous reaction to offensive comments Ms Yu made about his mother and her refusal to pay him money he was owed.

67. Mr Steel noted that the offender’s internet searches of areas around Sydney, including the Ku Ring Gai area, were made on the night of the offence, probably after the killing, rather than at some earlier time. He also argued that the offence carried a high risk of being detected because there was another resident at the premises, Ms Wu, even though she was not present at the time it was committed. These matters also, he argued, pointed to the killing having been spontaneous. However, I remain satisfied that it was not. To me these matters convey no more than that the planning of the killing might have been more thoughtful and skilful.

68. In arriving at these conclusions I am mindful of the lack of any clear evidence as to how Ms Yu met her death. Such information as is available suggests strangulation, but no positive finding can be made about that matter. I am also mindful of the paucity of evidence of the offender’s motive for the killing. It may have related to some ill feeling about his desire to move out of the unit, or a concern about his immigration status, but here also no positive finding can be made.

69. Accordingly, this is a murder of considerable objective seriousness. It is common ground that the offence is aggravated by its having been committed in Ms Yu’s home and by the disposal of her body. I accept the Crown prosecutor’s submission that there was a degree of callousness on the part of the offender in depositing her body where he did, with much of her body exposed.

70. The reports of Dr Dayalan and Dr Allnutt are measured and carefully considered, as was their oral evidence. Dr Dayalan had the undoubted advantage of having interviewed the offender – on two occasions. I have given the question of the bearing of mental illness upon this sentencing exercise careful consideration.

71. On the balance of probabilities, I am satisfied that the offender suffers from schizophrenia and did at the time of the offence. It is likely that the condition is of long standing. The more difficult question is the extent to which that condition might have influenced the commission of the offence. Certainly, as Dr Dayalan and Dr Allnutt both found, there is no evidence that the killing was the product of a psychotic episode. No such finding could be made in the light of the offender’s resolute refusal to reveal the circumstances in which it occurred. Certainly, on the limited evidence available, the offender appears to have acted in a purposeful and clear headed way in the commission of the offence, as he did in seeking to conceal his involvement after it, particularly in the interview with police on 9 June.

72. That said, and despite the paucity of evidence of the circumstances of the killing, it is fair to say that there is something bizarre about this criminal episode, dreadful as it was. In the light of Dr Dayalan’s evidence, and despite the paucity of evidence about the circumstances of the offence, I have concluded that the offender’s behaviour was likely to have been influenced to some extent by the impaired judgement characteristic of schizophrenia even when the person suffering that condition is not experiencing positive symptoms. I accept Dr Dayalan’s conclusion that he is of subnormal intelligence, and this also may have had a part to play. However, to what extent these factors impaired his judgement I cannot say. Nevertheless, this must have some bearing on the assessment of the offender’s moral culpability and the need for general deterrence, although not to any marked degree. Deterrence, both specific and general, remain important considerations.

73. I take into account the offender’s age, his lack of any criminal history, and his difficult background, including his mental illness and his intellectual deficit. He has pleaded guilty, but I am not persuaded that he is remorseful for his crime. I accept that he expressed shame about his behaviour to Dr Dayalan and was genuinely distressed but, in the light of his refusal to disclose how and why he killed Ms Yu, he does not demonstrate the acceptance of responsibility for his crime which is an essential aspect of remorse. The plea of guilty would appear to be a recognition of the inevitable, given the strength of the Crown case. However, it has the utilitarian value of having been entered early and entitles the offender to a 25% discount of sentence in accordance with the current statutory regime.

74. His prospect of rehabilitation is uncertain. In his report, Dr Dayalan referred to the Justice Health records concerning the offender’s physical altercation with an inmate and his experience of voices urging him to engage in violence. The doctor noted his limited insight into his mental illness and ongoing psychotic symptoms, and considered that he would be “regarded to pose a high risk of reoffending”. He added that this risk might be “partially mitigated by effective treatment of his psychiatric conditions”, but expressed a “guarded view on his prospects of rehabilitation”. I share that view. However, this is not to say that there is no prospect of rehabilitation. The offender is young, he is receiving treatment in custody, and there is evidence that he has been complying satisfactorily with prison routine.

75. As to his experience of incarceration, I accept Dr Dayalan’s opinion that the offender is “quite vulnerable within the correctional environment on account of his intellectual impairment, language barrier and ongoing psychotic symptoms”. Dr Dayalan added that, given “his ongoing persecutory beliefs, interpersonal skill deficits and history of traumatic experiences,” incarceration would be more onerous for him. I am also mindful that, as a foreign national, he would have no family, and probably no friends, to visit him.

76. Mr Steel submitted that I should find special circumstances warranting a departure from the statutory proportion between sentence and non-parole period. I have decided that this would not be appropriate. The application of the statutory proportion to the sentence which I have decided would still leave a substantial period of parole eligibility. Moreover, no lesser non-parole period would be sufficient to reflect the offender’s criminality.

Sentence

77. Mr Steel supplied me with a number of sentencing decisions in this court in cases having some factors comparable to the present case, acknowledging that they could be of only limited assistance to the decision I must make. There is no need to set them out in these reasons, but I have had regard to them.

78. Taking into account all the relevant factors apart from the plea of guilty, I consider the appropriate sentence to be imprisonment for 24 years. A reduction of 25% on account of the plea of guilty produces a term of 18 years. The non-parole period, applying the statutory proportion, is 13 years and 6 months. The sentence will date from the day of the offender’s arrest, 9 June 2018.

79. Shuo Dong, for the murder of Qi Yu, you are sentenced to a non-parole period of 13 years and 6 months, commencing on 9 June 2018 and expiring on 8 December 2031, and a balance of term of 4 years and 6 months, commencing on 9 December 2031 and expiring on 8 June 2036. You will be eligible for release on parole on 9 December 2031.

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Decision last updated: 18 September 2020