R v Dong

[2010] NSWSC 1242

CITATION:	R v Dong [2010] NSWSC 1242
HEARING DATE(S):	1 July 2010 - 13 July 2010 21 July 2010 1 October 2010
JUDGMENT DATE :	4 November 2010
JUDGMENT OF:	Price J at 1
DECISION:	Convicted. Sentenced to a term of imprisonment of 24 years which is to consist of a non-parole period of 17 years commencing on 26 February 2009 and expiring on 25 February 2026 and a balance of term of 7 years commencing on 26 February 2026 and expiring on 25 February 2033. Eligible to be released on parole on 25 February 2026.
CATCHWORDS:	Criminal Law - sentencing - murder - jury verdict - self-defence - provocation - factual findings - offence within middle range of objective seriousness - mitigating factors - special circumstances - departure from standard non-parole period
LEGISLATION CITED:	Crimes Act 1900 s 19A(2), 19A(3), s 23 Crimes (Sentencing Procedure) Act 1999 s 21(1), s 21A(3)(b), s 21A(3)(c), s 21A(2)(c), s 21A(3)(e) s 21A(3)(f), s 21A(3)(i), s 21A(3)(g)-(h) s 61(1)
CATEGORY:	Sentence
CASES CITED:	Knight v R [2006] NSWCCA 292 R v Clarke [2009] NSWCCA 49 R v Isaacs (1997) 41 NSWLR 374 R v Merritt (2004) 146 A Crim R 309 R v Pilley (1991) 56 A Crim R 202 R v Previtera (1997) 94 A Crim R 76 R v Yeo [2003] NSWSC 315
PARTIES:	Regina Jian Dong
FILE NUMBER(S):	SC 152067/2009
COUNSEL:	Mr J Pickering (Crown) Mr B Murray (Offender)
SOLICITORS:	Ms J Sposi (Director of Public Prosecutions) Ms K Chen (Chen Shan Solicitors)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

4 November 2010

152067/2007 R v DONG

Remarks on Sentence

1 HIS HONOUR: On 13 July 2010, the offender Jian Dong was convicted by a jury of the charge that he on 13 January 2009 at North Ryde in the State of New South Wales did murder Ming Hai Jiang. The maximum sentence for the crime of murder is imprisonment for life. A standard non-parole period has been prescribed of 20 years imprisonment.

2 It is my duty to determine the facts relevant to sentencing the offender. My view of the facts must be consistent with the verdict of the jury and the findings of fact I make against the offender must be arrived at beyond reasonable doubt: R v Isaacs (1997) 41 NSWLR 374 at 387-379. Matters in mitigation may be proved on the balance of probabilities: R v Pilley (1991) 56 A Crim R 202.

3 On the first day of the trial, the offender pleaded not guilty to murder but guilty to manslaughter. The Crown did not accept the plea of guilty to manslaughter in full discharge of the indictment and the trial proceeded on the charge of murder. It was the offender’s case at trial that he was acting in self-defence when he killed Ming Hai Jiang. The jury was also instructed that in order to find the offender guilty of murder they must be satisfied beyond reasonable doubt that the offender was not acting under provocation.

4 The jury was satisfied beyond reasonable doubt that the offender deliberately struck the deceased at least nine times to the head with a hammer inflicting really serious injuries upon him which were the substantial cause of his death. The jury must have found that the blows were struck with either an intention to kill the deceased or to inflict grievous bodily harm upon him. The members of the jury were satisfied beyond reasonable doubt that the acts causing death were not carried out in self-defence and the offender was not acting under provocation.

5 An important matter of fact in the trial was whether the deceased had attacked the offender before he was struck with the hammer. The jury’s verdict does not determine this issue. It was open to the jury to reject the offender’s evidence that the deceased attacked him. It was also open to the jury to accept the offender’s evidence that he genuinely believed that it was necessary to do what he did in his own self-defence, but to find that what he did in striking the deceased with the hammer was not a reasonable response in the situation as he perceived it to be. Another factual matter which requires consideration is whether any of the blows to the deceased’s head were struck by the offender when the deceased was lying on the ground. As to provocation, it was open to the jury to find that the acts causing death were the result of a loss of self-control on the offender’s part but to find that the deceased’s conduct was not such that it could have induced an ordinary person in the position of the offender to have so far lost self-control as to have formed an intention to kill, or to inflict grievous bodily harm upon the deceased. Another basis for the verdict was for the jury to find on the issue of provocation that there was nothing in the conduct of the deceased which induced the offender to lose his self-control.

6 I propose now to recount some of the evidence in a summarised way for the purpose of making findings of fact.

Background facts

7 The background facts leading to the death of Ming Hai Jiang on the evening of 13 January 2009 are largely uncontroversial. The offender had contracted to do renovation work on the deceased’s property… The total cost of the agreed works was $4,500 and the work was to be completed on 14 January 2009. The offender employed Mao Long Li and another worker to help with this work. About five days before the deceased’s death, Guo Giang Jing, the deceased’s father, inspected the work that had been done at the premises and was unhappy with it. The offender was required to rectify one of the doors which was the wrong size.

8 The offender had provided the deceased with a quotation for work to be done at the deceased’s home … According to the offender, the deceased had asked him to perform a lot of free work … before he would be given the contract for work … The uncharged work included the sanding and cleaning of floors and the installation of a light switch which had not been included in the agreed works …

9 The day before the murder the deceased had told the offender to clean the … property. The offender replied that cleaning was not in the contract but he would do it for free. The deceased had paid him in cash but $1,500 of the contract sum remained unpaid.

10 On the morning of 13 January 2009, the offender went to the … property with Ai Qin Lu. He looked around the property for unfinished work and hammered down protruding nails. Miss Lu carried out cleaning work which included mopping floors and wiping the bath tub. She helped the offender remove rubbish from outside the house.

11 The offender drove with Miss Lu to the … premises around midday where he found Mr Li and the other worker doing work for Ming Hai Jiang which the offender had not authorised. The offender was angry and abusive to Mr Li, as he considered that Mr Li had obtained the work behind his back. Unbeknown to the offender, the deceased had employed Mr Li to do renovation work at … After arguing with Mr Li, the offender left the … premises. During the afternoon, he rang the deceased telling him he had finished the work and to prepare the last payment. The offender told Miss Lu that he had arranged to meet the deceased at the …premises at about 8pm to collect the remaining payment.

12 When the offender and Miss Lu went to …, the front door to the premises was open. The deceased had been showing Yuezhong Zhang and some others the renovations. Whilst Miss Lu waited in the offender’s van which was parked across the road, the offender walked to the premises.

The events at …

13 The critical matters of facts which are to be determined occurred after the offender went to the premises. The offender gave evidence that after the other people left, he told the deceased that the work had been completed and to please have a look around. After inspecting various rooms, the deceased said that the floor was still not clean and nails were still protruding. The offender told the deceased he had employed people to clean it five times and that there were only three protruding nails. The deceased said “that’s still not acceptable.”

14 The conversation which followed included the offender saying to the deceased, “You asked me to do so many free works for you and then you had given the (contract) to other workers.” The deceased replied, “It’s up to me…whoever I want to give the work to.” He said, “If you carry on then I will call the police.” The offender replied, “You want to call the police? Go ahead!”

15 The offender told the jury that as he thought he was not being paid because of a few protruding nails he went back to his van, collected a hammer, returned to the premises and hammered down the protruding nails. The deceased looked at this work and said the nails were okay. When the offender asked for payment, the deceased said that the floor was still not clean and he would not pay. The offender replied that the floor had been cleaned multiple times. When the deceased again refused to pay, the offender said, “If you do not pay then I will destroy my works.”

16 The jury was told by the offender that the deceased became annoyed. The deceased said, “If you dare to destroy my work you get the hell out of here.” The deceased lunged forward and grabbed hold of his neck. The offender testified that he could not breathe and with his hand pushed the deceased’s head with great force to loosen the deceased’s grip on his neck but was unsuccessful. He was finding it hard to breathe and was on the verge of losing consciousness. He used the hammer as a last resort because the deceased was choking him. They were both standing up at the time.

17 After that, he lost consciousness. When he regained consciousness, he found Ming Hai Jiang was lying next to him and his head was covered with blood. He pushed the deceased but there was neither a reaction nor was he breathing. The offender said that he was completely shocked at the time and did not know what he was doing. He recalled leaving the premises and vaguely remembered driving away with Miss Lu in the van.

18 In cross-examination by the Crown, the offender said that he brandished the hammer randomly as he had wanted to breathe. He said that the deceased had used his left hand to choke his neck and had grabbed his clothes with the right hand. The offender said that he should have some bruising from the choking but he could not see any bruises on himself. He could not recall cleaning the bathroom, nor could he recall running a bath and putting the deceased in it.

19 There was an abundance of evidence, in my opinion, which when viewed together, demonstrates that the offender’s evidence as to the circumstances in which he killed the deceased was largely untruthful. The offender made no complaint to Miss Lu that the deceased had attacked him. It was her evidence that after the offender had returned to the van, collected the hammer and walked into the house, she heard one man, who was not the offender, yelling out. She ran to the house, opened the security door, saw a man lying on the ground with blood on his head and the offender was standing. Miss Lu testified that she was so scared and in shock that she sat on the floor and cried. The offender, who was inside the house said, “You either come into the house or go back to the car. Stop shouting”. Miss Lu returned to the vehicle. She did not know how much longer it was after that the offender came back to the vehicle but it was a while. She only looked at him once. He was topless but was holding some clothing in his hands. He threw the bundle behind his seat in the vehicle.

20 Miss Lu gave evidence that the offender drove her to Eastwood where her vehicle was parked. He did not say anything about what had happened in the house. She said to the offender, “Regardless of what happened, if you want to go to the police I am happy to accompany you to the police station.” The accused said, “Not your business. I know what to do”. She could recall saying to him one more time, “Do you want to go to the police station for what [has] happened. I’m happy to go with you and let’s talk it through with the police.” The offender said, “No, I want to go home too.”

21 The offender fled from Sydney that night and was on the run until he was arrested about 65 kilometres west of Richmond in Queensland on 25 February 2009. When the offender spoke to Constable Tong in the recorded conversation (ex H) at the Townsville Watch House on 26 February 2009 he did not say anything about being choked by the deceased. He accepted as being right that he told the deceased if he wouldn’t give him the money he would demolish the gyprock. He also accepted that he did not remember how many times he hit the deceased. The questions and answers in the recorded conversation included the following:

“P: After that he wouldn’t let you demolish the gyprock, and you started fighting, is that what happened?

S: Em.

P: After that you couldn’t control yourself, you hit his head.

S: Em.”

He told the police officer inter alia that he had panicked, that he had dragged the deceased’s body into the bathroom, put water into the bath and placed the deceased in the bath as he wanted to remove finger prints. He said that he threw the hammer off the Gladesville Bridge. He told the police officer that he had stolen a number plate from a discarded car in Adelaide and had placed it on his vehicle. He said that he had thought about giving himself up but was afraid that if he did so, his son “would be chased back to China.”

22 The offender told the jury that after he dropped Miss Lu at Eastwood he collected some money and was in a daze at the time. He was in complete shock and was very scared. He did not tell anyone and left Sydney. The offender gave evidence that he did not tell Constable Tong about being choked as he had not slept well and his brain was not functioning normally at the time.

23 The deceased’s father arrived at … at around 9pm on the night of the murder. The front door to the premises was locked and the lights were off. When he walked into the bathroom, he saw his son facedown in the bath which was full of water. His son, he said, was immersed in water and blood was everywhere.

24 Forensic evidence given during the trial included Senior Constable Colver’s testimony of areas of diluted blood staining on the hallway wall which had been wiped down with something like a wet towel or a rag. Diluted staining and blood in the toilet water, Senior Constable Colver opined, indicated that a person may have washed up or introduced blood into the toilet. Gavin Henderson, a forensic biologist, gave evidence that three of the swabs taken from the mop found in the premises yielded full profiles of DNA that were consistent with originating from Ming Hai Jiang.

25 Dr Orde, the forensic pathologist, conducted an autopsy and described nine injuries to the head of the deceased. The numbering system which the pathologist used had no relationship to the timing or actual significance of each of the head injuries. Injuries 3, 4, 5, 6, 8 and 9, Dr Orde considered, were each likely to have been caused by one blow to the head. The three fairly neat semi-circular marks suggested that the complex injury (injury 1) which extended over 37mm in the high central occipito-parietal scalp, was caused by three applications of force. Dr Orde was of the opinion that injuries 2 and 7 were likely to have been caused by either one or possibly two blows to the head. Dr Orde observed that underlying injury 1 there was a depressed fracture of the skull extending over 42mm. As to injury 2, there was a further depressed fracture extending over 27mm. With regard to injuries 5 to 8, which were quite close together, Dr Orde found underlying those injuries another area of depressed fracturing of the skull and some radiating fracture lines. There were multiple areas of bruising to the brain surface, many of which would have been caused by the direct application of force corresponding to the injuries the pathologist had seen. Dr Orde opined that the head injuries themselves could have been fatal to the deceased. He said that both the severity of the injuries themselves and the number of injuries would be entirely in keeping with these injuries having been independently fatal.

26 The deceased, Dr Orde said, would have been likely to lapse into unconsciousness and have bled quite profusely from the head injuries. Dr Orde told the jury, given the severity of the injuries, that it would be unlikely that the deceased would remain standing after receiving more than one or two blows. It was not possible for him to say, however, whether the head injuries were caused whilst the deceased was standing up or lying down.

27 Dr Orde gave evidence of injuries to the left and right hands of the deceased. There was, he said, a gaping semi-circular laceration to the medial aspect of the back of the left hand. He expressed the opinion that this was a blunt force injury similar to those on the deceased’s head. There was quite extensive bruising overlying the back of the left hand and there were fractures of the metacarpal bones of the little, ring and middle fingers. Dr Orde observed a superficial laceration overlying the little finger metacarpal of the right hand with a further laceration overlying the far part of the middle finger metacarpal. Over the majority of the back of the hand, most prominently at the little finger side and extending onto the wrist, there was diffuse faint blue bruising and swelling. There was bruising over the back of the index finger of the right hand. Internal examination revealed moderate bruising over the back of the right hand extending over the middle and the left finger metacarpals. The right middle finger had also fractured. Dr Orde also identified what he described as moderate bruising over the wrist and adjacent forearm. Dr Orde expressed the opinion that given that the locations of the injuries to the left and right hands of the deceased were predominately on the back of the hands, they would have been inflicted whilst the deceased was attempting to defend himself from injury. The overall pattern of the injuries suggested so-called “defensive injuries”. In cross-examination by Mr Murray, he said that the injuries were non-specific for causation and the scenario put to him by the Crown was no more than a possibility. In further cross-examination by Mr Murray as to injuries to the right hand side of the deceased’s face, Dr Orde said that all of these injuries would have been caused by the application of blunt force but were non-specific as to the means of blunt force that was applied. The injuries, he said, would have needed a significant degree of force to bring them about.

28 Yanna Fang, the wife of the deceased, told the jury that her husband had suffered a back injury prior to their marriage in 2006 when he fell while working for Domino’s Pizza. He had neck pain as well. She said the fall had caused long-term injury problems for her husband. He had to sleep in a very hard bed or even had to lie on the floor. He could not do, she said, heavy lifting. Either swimming or golf helped with his back condition.

29 I am satisfied beyond reasonable doubt that the Crown has excluded as a reasonable possibility that the deceased attacked the offender and grabbed hold of his neck. The only rational inference, (which I draw beyond reasonable doubt) from the combination of:

(i) the offender’s upset over the deceased’s refusal to pay him;

(ii) what the offender said to Miss Lu when she saw the deceased lying on the ground;

(iii) the dragging of the body of the deceased by the offender away from the front door;

(iv) the filling of the bath tub with water by the offender and the immersion of the deceased’s body in the bath tub;

(v) the offender’s cleaning of blood off the walls of the house and mopping of the floor to clean up blood;

(vi) the injuries to the left and right hands of the deceased which were predominantly on the back of the hands;

(vii) the absence of injury to the offender;

(viii) the lack of complaint by the offender to Miss Lu that the deceased had attacked him;

(ix) the deceased’s pre-existing disabilities of the back and neck;

(x) the throwing of the hammer by the offender from the Gladesville Bridge;

(xi) the offender’s flight from Sydney and being “on the run” which including the changing of the car registration details;

(xii) the absence of anything being said by the offender to Constable Tong during the recorded conversation that the deceased had been choking him

is that the offender became so angry when the deceased refused to pay the outstanding amount of $1,500 that he struck the deceased at least nine times to the head with the hammer. There were further hammer strikes by him to the back of the deceased’s hands whilst the deceased was endeavouring to shield himself from the blows.

30 In making this finding, I am mindful that the sole jury question indicates that consideration might have been given by the members of the jury to the reasonable possibility that the offender personally believed for the first or second blows that his conduct was necessary to defend himself. The jury, however, was provided during the summing-up with the standard direction that they were not required to agree upon the same reasons for their verdicts. The shortness of time of the jury’s overall deliberation, however, indicates that at the very least most of the jurors found as I have done, that the offender’s testimony was largely untruthful.

31 The Crown invited me to find that a number of blows were struck to the deceased whilst he remained standing, however, that some of these blows were to the deceased’s hands as he was endeavouring to protect himself. The Crown submitted that I would then find that the deceased fell to the ground, and the offender struck several blows to his head, whilst he was lying on the ground and was almost certainly unconscious. Mr Murray invited me to reject that submission and pointed in particular to Mr Porter’s evidence of impact spatter higher up on the wall, which Mr Murray contended indicated a “stand up” fight rather than evidencing a person being struck whilst lying on the ground.

32 Senior Constable Colver expressed the opinion that the blood spatter in the hallway had an origin low to the ground predominantly on the hallway’s northern side. The varying spatter sizes being generally between 4mm and 8mm in length was consistent, he said, with a repeated assault using a blunt force implement. During cross-examination by Mr Murray, Senior Constable Colver agreed that it was possible that the blood spatter stringing that he had placed on the tiles as seen in photographs 16 and 17 (ex A) was caused by someone stepping on a pool of blood. He said all that indicated is the direction that the blood was coming from, whether from a hammer or someone stepping on it. He said it could be either of those.

33 Mr Porter’s testimony included the area ringed with a black circle in photograph 6 (ex 5) which, he thought, was an important spatter pattern for the reconstruction of the scene. It was a fair distance away from the main area of spatter that Senior Constable Colver was suggesting, which was down lower to the ground. The black circled stains in photographs 7 and 8 (ex 5) in Mr Porter’s view came from a higher source than the spatter Constable Colver had been talking about. The highest was about 1.8 metres in height. When cross-examined by Mr Crown, Mr Porter’s testimony on this topic included (T394 L 40-50; T395 L 1):

“Q. You indicated - and I'll just read straight from your report on page 5, if you'd like to refer to your report as I read it. It's just following paragraph 13 in your report. You said:

“I concur with Senior Constable Colver's opinion that the spatter stains are consistent with impact caused by a blunt force injury and that the spatter pattern he described displayed convergence towards an area close to the ground.”


Is that one of the findings that you made?

A. Yes.”

34 And further (T 395 L 22-45):

“Q. You then go on to say that:

“The spatter pattern he described displayed convergence towards an area close to the ground.”


What do you mean by that?

A. I agree with Constable Colver's opinion on the convergence of that stain that was low to the ground, is consistent with a convergence that is fairly low to the ground. I do agree with his view there.

Q. And to put that into the context of this case, you would accept that there was at least one blow with a hammer to the deceased's head while he was lying on the ground?

A. I can't tell whether it was a hammer. The impact stains are consistent with a hammer. I can't say definitely it was a hammer. But the impact was close to the ground, yes.

Q. Is the blood spatter consistent with multiple blows with a hammer whilst the deceased was lying on the ground?

A. The stain that Detective--

Q. Colver.

A. --Colver was indicating, that's difficult to tell.”

35 It is evident that Mr Porter agreed that the spatter pattern described by Senior Constable Colver was consistent with a convergence that was fairly low to the ground and with at least one blow being struck at a time the deceased was lying on the ground.

36 The testimony of the blood spatter experts, however, is not to be considered in isolation. As I have recounted at [26] above, Dr Orde expressed the opinion that given the severity of the deceased’s head injuries, it would be unlikely that he would remain standing after one or two blows. The terrible trauma of all the injuries to the deceased’s head speaks plainly of the force used by the offender.

37 The only rational inference to be drawn from the combination of:

(i) The number of the deceased’s head injuries;

(ii) The severity of the head injuries;

(iii) Dr Orde’s opinion that it would be unlikely that the deceased would remain standing after one or two blows;

(iv) The evidence of Senior Constable Colver and Mr Porter,

is that more than one blow was struck by the offender to the deceased’s head whilst the deceased was on the ground. I am not, however, able to determine the precise number of blows that were struck at that time. Accordingly, I am satisfied beyond reasonable doubt that after being struck on the head by the hammer a number of times the deceased fell to the ground. As he lay on the ground, the offender struck him on the head with the hammer several more times.

38 The attack upon the deceased was ferocious. I am satisfied beyond reasonable doubt that, at the time the offender struck the deceased with the hammer, he had the intention to kill him.

39 I am satisfied beyond reasonable doubt that the offender did not lose consciousness nor does he have the limited recollection of what occurred which he deposed to in his evidence. I am further satisfied to the criminal standard that he did not act irrationally after he believed that he had killed the deceased but deliberately set out to do everything that he could to hide his involvement in the murder. His efforts to clean up the murder scene were partially successful as neither his fingerprints nor DNA were found in the premises and the blood spatter analysis was affected. What he did at the premises and what he said to Miss Lu afterwards in the vehicle reflects a firm determination on his part to escape responsibility for the crime. I reject the offender’s evidence that he was shocked out of his mind and did not know what he was doing. I am further satisfied beyond reasonable doubt that the offender’s disposal of the hammer and flight from Sydney were occasioned by his consciousness of guilt for the murder.

40 The Crown accepted at trial that the offender believed that the deceased had died after the strikes to the head with the hammer. I find as a matter of fact that the offender held a genuine belief that the deceased was dead before he dragged the deceased away from the front door and placed him in the bath. Sadly, it seems that the deceased was still alive as Dr Orde considered that there may have been an element of drowning in the death. The pathologist, however, was unable to quantify the possible factor of drowning in any meaningful sense of certainty or reliability.

41 I am satisfied beyond reasonable doubt that the acts causing death were not done under provocation as the blows with the hammer were not the result of a loss of self-control on the part of the offender that was induced by any conduct of the deceased: s 23 Crimes Act 1900.

Objective seriousness

42 As this is an offence to which a standard non-parole period applies, it is necessary to consider where the offence committed by the offender lies on the range of objective seriousness of the offence of murder. The Crown submitted that the offence falls into the middle range of objective seriousness, whereas Mr Murray contended that this murder was lower than the mid-range.

43 It is a factor in mitigation that the murder was not premeditated or planned: s 21A(3)(b) Crimes (Sentencing Procedure) Act 1999.

44 I am also satisfied on the balance of probabilities that a cause of the offender’s anger was the exacting demands that the deceased placed upon him before the $1,500 was to be paid. To this extent, I find on the probabilities that the offender was provoked by the deceased which mitigates the objective seriousness of the offence: s 21A(3)(c) Crimes (Sentencing Procedure) Act. The offender’s testimony as to the efforts that had been made to clean up the premises was supported by Miss Lu and Mr Li had been employed at the … premises without the offender being informed. The character evidence during the trial by Jian Sun, a former employer, and Zhen Dong, the offender’s sister and the offender’s lack of prior criminal history, supports a conclusion that the offender was normally a person who got on with others.

45 The ferocity of the attack upon the deceased increases the objective seriousness of the offence. The deceased was struck at least nine times to the head with the hammer, several of those blows being struck whilst he lay helpless on the ground. The offender had an intention to kill. The use of the hammer is a factor of aggravation: s 21A(2)(c) Crimes (Sentencing Procedure) Act.

46 The Crown put to me that the offender’s behaviour in dragging the deceased down the hallway, leaving him to be found in the bath, turning off the lights, and locking the front door increased the objective seriousness of the offence, albeit at the time he believed the deceased was dead. It is well-established that the offender’s treatment of the deceased’s body can be taken into account in assessing the seriousness of the offence: Knight v R [2006] NSWCCA 292 at [28]; R v Yeo [2003] NSWSC 315. I am satisfied that the callousness with which the offender treated the deceased’s body in order to hide what he had done increases the seriousness of the crime. I emphasise that the offender is not being punished for any element of reckless indifference to the deceased’s life.

47 These matters, to my mind, place the objective seriousness of the offence slightly above the middle range of objective seriousness. When, however, the limited provocation and lack of planning are taken into account, I conclude that the offence is to be characterised as falling squarely within the middle range of objective seriousness.

48 The maximum sentence for the crime of murder is imprisonment for life. A person sentenced to imprisonment for life is to serve that sentence for the term of his natural life: s 19A(2) Crimes Act. Section 19A(3) provides that nothing in s 19A affects the operation of s 21(1) of the Crimes (Sentencing Procedure) Act (which authorises the passing of a lesser sentence than imprisonment for life).

49 Section 61(1) Crimes (Sentencing Procedure) Act provides:

“A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.”

50 The primary focus of s 61(1) is an assessment of how extreme the prisoner’s culpability is: see R v Merritt (2004) 146 A Crim R 309 at [52]. I have found at [47] above that the prisoner’s level of culpability is not such that his crime falls within the worst category of the offence of murder.

Subjective circumstances

51 The offender was born on 14 July 1962 and is 48 years old. He gave evidence of his background during the trial as did his sister Miss Dong. Further background material is found in the report of Sunny Hong, a psychotherapist. The offender’s place of birth was Shen Xian in Zhejiang province in South East China. He testified that he lived with his grandparents for the first seven years of his life. It was the Cultural Revolution at the time and the offender said that they were very poor. When he was seven years old, the offender went to Linhai middle school in the Taizhou area where he completed his primary and secondary schooling. He was not very good at school and described being bullied by other classmates. He said he was a loner with not much interaction with other students. The offender left school at the age of 16 years and commenced working with his father who had a pharmaceutical manufacturing business. He married and his son was born in 1992. The offender said he divorced his wife in October 1995. Following the divorce, his son was in his custody. They both came to Australia in 2000 being sponsored by the offender’s parents who had settled in this country in 1994.

52 The offender told the jury that he found being a single parent very hard. He said that since his arrival in Australia he had been working in the kitchen cabinet business, but from 2006 started installing and assembling kitchen cabinets himself. Mr Sun described the offender as being a good worker who had used his initiative to become his own installer. Miss Dong gave evidence of the difficulties, which her brother experienced upon his arrival in Australia, particularly due to his lack of English. Mr Hong in his report, noted the offender’s feelings of isolation and loneliness. It appears from Mr Hong’s report that the offender remarried in China in 2003, with the intention of his second wife joining him in Australia after a spouse visa was granted but the marriage ended in divorce in 2007.

53 In a letter written by the offender (ex 3), the offender makes reference to experiencing “troubles with [his] sanity which has caused [him] to become an insomniac” and of suffering from chest pain. Dr Bruce Westmore, a forensic psychiatrist, in his report does not identify any psychotic symptoms or psychiatric disorders from which the offender suffers. The psychiatrist organised an MRI brain scan on 8 December 2009 and the result was normal. No other medical reports have been tendered on the offender’s behalf. Unsurprisingly, Mr Murray did not submit that the offender suffers from any form of mental illness or medical condition which requires consideration in my sentencing task.

54 The offender does not have any prior criminal convictions which entitles him to leniency: s 21A(3)(e) Crimes (Sentencing Procedure) Act. I also find that prior to the murder, the offender was a person of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act. These are mitigating factors which I take into account in determining the appropriate sentence.

55 Mr Murray asked me to find as a mitigating factor that the offender had shown remorse. Mr Murray pointed both to the letter written by the offender (ex 3) and to his testimony during the trial in which he expressed his regret for what he had done, his sorrow and deep remorse for the deceased and his family. Furthermore, Dr Westmore reported that the offender experienced “in a spontaneous way” feelings of regret for his actions towards the deceased and acknowledged the impact upon the deceased’s family. Section 21A(3)(i) Crimes (Sentencing Procedure) Act provides that remorse may only be taken into account if:

“(i) the offender has provided evidence that he…has accepted responsibility for his…actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his…actions or made reparation for such injury, loss or damage (or both),”

56 The plea of guilty to manslaughter was a partial acceptance by the offender of responsibility for the deceased’s death. He, however, during the trial maintained that he had been attacked by the deceased. It is plain from Dr Westmore’s report, which was prepared after the jury’s verdict that he continues to contend that the deceased attacked him by choking him around the neck. Whilst I accept that he regrets having killed Ming Hai Jiang and has acknowledged this tragic loss, I am not persuaded on the balance of probabilities that his acceptance of responsibility extends beyond the use of excessive force and that he, at this time, takes full responsibility for the killing. I take remorse, to this limited extent, into account, as a mitigating factor.

57 Another submission for the offender was that he has good prospects of rehabilitation and is unlikely to re-offend. The Crown submitted that the offender’s behaviour in destroying evidence and trying to hide from authorities would create concerns in the area of rehabilitation. Furthermore, a troublesome feature, to my mind, in assessing the offender’s prospects of rehabilitation is his partial acceptance of responsibility for the death. On the other hand, the offender’s prior good character and family support evidenced by the letters from his father and son (ex 4 and ex 5) encourage a positive view of his future prospects. Mr Hong in his report said this (ex 2 p11):

“[The offender] seems to have a compliant and passive personality structure which in his Chinese culture would have been considered to be appropriate as he would be seen to be submissive and compliant to rules and authorities.”

58 Dr Westmore expressed the following opinion (ex 1 p 6):

“[The offender] continues to receive the support of his family. I would be surprised if [the offender] presents any behavioural or management problems to the prison authorities. In the absence of any other history of him behaving in an aggressive fashion towards others, then his risks of reoffending are probably in the lower range. It would seem that an unfortunate series of events led up to his aggressive outburst.”

59 I conclude on the balance of probabilities that the offender has reasonable prospects of rehabilitation and is unlikely to re-offend which I take into account as mitigating factors: s 21A(3)(g)-(h) Crimes (Sentencing Procedure) Act. By reason of these findings, I give modest weight to specific deterrence.

60 Although mitigated by the considerations which I have detailed, the taking by the offender of Ming Hai Jiang’s life is a most serious crime. He was 27 years old when he was murdered. I take into account the need for general deterrence.

61 A victim impact statement was read in court by Yanna Fang, the deceased’s widow. The contents of the statement cannot be used by me to increase the offender’s sentence: R v Previtera (1997) 94 A Crim R 76. I acknowledge the grief and distress of the deceased’s family and express on the community’s behalf its sympathy and compassion for them.

62 Notwithstanding that no submissions were made for the offender as to special circumstances, I find as a special circumstance the offender’s first time in custody at the age of 47 years. I am aware that some reservations have been expressed by the Court of Criminal Appeal as to whether the fact that a person is in custody for the first time is capable of constituting special circumstances: see for example Clarke v R [2009] NSWCCA 49 at [12], but it seems to me that in the circumstances of the offender, who has received a custodial term for the first time at a mature age, he will need particular assistance in re-establishing himself in the community. The findings of mitigating factors and special circumstances justify some departure from the application of the standard non-parole period.

63 The offender has been in custody for the offence since 26 February 2009. Accordingly, the sentence will commence on that date.

64 Jian Dong for the murder of Ming Hai Jiang I convict you. I sentence you to a term of imprisonment of 24 years which is to consist of a non-parole period of 17 years commencing on 26 February 2009 and expiring on 25 February 2026 and a balance of term of 7 years commencing on 26 February 2026 and expiring on 25 February 2033.

65 You will be eligible to be released on parole on 25 February 2026.

**********