R v Lai
[2015] VSC 346
•31 July 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0093
Between:
| THE QUEEN | |
| and | |
| NELSON LAI | Accused |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 13-17, 20-24 & 27 April and 1, 4-8 & 11-13 May 2015 (Trial); and 18 June 2015 (Plea) |
DATE OF SENTENCE: | 31 July 2015 |
CASE MAY BE CITED AS: | R v Lai |
MEDIUM NEUTRAL CITATION: | [2015] VSC 346 |
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CRIMINAL LAW – Sentence following trial – Accused found not guilty of murder but guilty of manslaughter – Accused aged 34 accidentally shot girlfriend aged 22 in head with revolver – Accused believed gun was unloaded – Whether accused deliberately pointed gun at deceased’s head or was not looking where gun pointed when pulled trigger three or four times – Unable to exclude reasonable possibility of truth of accused’s account – Serious instance of manslaughter by criminal negligence – Accused twice offered to plead guilty to manslaughter on the basis on which convicted but did not plead guilty before jury – Accused all but admitted negligent manslaughter at trial – Remorse – Reasonable prospects of rehabilitation – Such prospects limited by history of drug use, appalling behaviour towards deceased and prior convictions – Sentencing purposes of general deterrence, specific deterrence, just punishment, denunciation, protection of the community and rehabilitation – Sentence of nine years and five months’ imprisonment with a non-parole period of six years and eleven months – Sentence and non-parole period reduced by one month to account for lost pre-sentence detention resulting from service of a one-month sentence that would have been directed to be served concurrently if imposed after the present sentence.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Grant | Office of Public Prosecutions |
| For the Accused | Mr P. Doyle | Revill & Papa Lawyers |
HIS HONOUR:
Overview
Shortly before 9:06 a.m. on 11 October 2013, Nelson Lai accidentally shot his girlfriend Rekiah O’Donnell in the right temple with a revolver at close range. The two of them were in Mr Lai’s small bedroom in his parents’ home in Sunshine North. Mr Lai’s father, who had been asleep in the master bedroom, and his mother, who was in the back yard just outside Mr Lai’s window, both rushed to their son’s bedroom. Ms O’Donnell was lying between the bed and the window, with her head being cradled by Mr Lai. She was bleeding profusely from the gunshot wound to her temple. When asked by his father what happened, Mr Lai said he thought the gun was unloaded.
Mr Lai immediately called Triple-0. He told the operator that an ambulance was required quickly; that he had accidentally shot his girlfriend in the head; that she was still breathing but was bleeding; and that he did not know there was anything in the gun. He tried to staunch the bleeding and then performed CPR (under the direction of the Triple-0 operator) for half an hour before paramedics came into the room. It is apparent from the tape of the Triple-0 call, which makes for harrowing listening, that Ms O’Donnell stopped breathing while Mr Lai was trying to help her, that he then revived her at one point, but that she expired again.
When paramedics eventually were allowed by police to enter the bedroom, Ms O’Donnell was unconscious and had no respiratory activity. The paramedics could not detect any signs of life, and they determined that Ms O’Donnell was deceased at 9:45 a.m.
Police found the six-cartridge revolver and five loose unfired cartridges on the bed. Inside the cylinder of the revolver, they found one fired cartridge at the 12 o’clock position. A projectile containing Ms O’Donnell’s DNA on it was found in an open wardrobe in the bedroom.
Mr Lai was arrested at the scene and taken to Sunshine Police Station. Following legal advice, he made a ‘no comment’ record of interview. He was charged with murder and remanded in custody, where he has remained ever since.
At the time of her death, Ms O’Donnell was only 22. Mr Lai had just turned 34 and is now 35.
Following pre-trial argument in this Court, on 21 April 2015, Mr Lai pleaded not guilty to murder and a jury was empanelled.
On 13 May 2015, after a 17-day trial and one-and-a-half days of deliberations, the jury, by unanimous verdicts, found Mr Lai not guilty of the murder of Ms O’Donnell, but guilty of her manslaughter.
On 18 and 23 June 2015, victim impact statements were received and read, Mr Lai admitted prior convictions and I heard submissions on sentencing facts and a plea in mitigation.
Shortly, I will impose sentence.
Conduct of the trial
Crown case
The Crown case at trial was that Mr Lai had behaved appallingly towards Ms O’Donnell throughout their relationship. For most of the 14 months or so that they were together, Mr Lai had repeatedly verbally abused, threatened and physically assaulted Ms O’Donnell, particularly when affected by methamphetamine or “ice”. Both Ms O’Donnell and Mr Lai used ice often. Mr Lai was often suspicious, jealous and controlling of her. He would frequently become enraged and had even threatened to kill her on occasions. He repeatedly bombarded Ms O’Donnell with text messages, Facebook messages and telephone calls. A good deal of evidence demonstrating these aspects of the relationship was led from Ms O’Donnell’s family and friends, a stranger who witnessed one of Mr Lai’s rants, a doctor Ms O’Donnell consulted and a counsellor she saw with Mr Lai, and was also apparent in text messages, letters and Facebook conversations placed before the jury.
Against that background to the relationship, it was alleged that, on the morning of the shooting, Mr Lai was coming down from a five-day ice binge; that he was scattered and paranoid; and that he had come to believe that Ms O’Donnell was cheating on him and was going to leave him. Acting on this belief, Mr Lai flew into a rage, yet again; retrieved the revolver from his bedhead; aimed it at Ms O’Donnell’s temple at close range; and, knowing it was fully loaded, deliberately pulled the trigger, intending to shoot and kill her. After Ms O’Donnell slumped onto the bed, Mr Lai moved her body to the floor and emptied the remaining five cartridges onto the bed. He then called Triple-0 after his parents had entered his bedroom.
Thus, on the Crown case, Mr Lai was guilty of an intentional murder.
Defence case
Mr Lai did not dispute that he deliberately pulled the trigger, that the bullet struck Ms O’Donnell in the temple at close range or that she died as a result. While some aspects of the evidence of the relationship were disputed, in his evidence, Mr Lai admitted that he had a history of being suspicious, jealous and controlling of Ms O’Donnell and of verbally abusing, threatening and even physically assaulting her. He accepted that he sometimes became angry when coming down from ice use. However, he denied that he knew the gun was loaded, that he aimed the gun at Ms O’Donnell’s temple or that he intended to kill her. Rather, as he indicated to the Triple-0 operator, the shooting was an accident. In particular, his account was to the following effect:
He and Ms O’Donnell had been out all night. They arrived home after 6:00 a.m. He had taken ice at about 2:00 a.m. but its effects had ceased by 9:00 a.m. He was a little bit tired, as he had not slept much and had used ice in the past five days. But he felt normal and was not angry or scattered or paranoid. He did not believe that Ms O’Donnell was planning to leave him. On the contrary, they were getting on well and were keen to see each other.
Just before the shooting, they were both sitting up in bed, with Ms O’Donnell on his left. He decided to play with the revolver he had been minding for a friend on behalf of a drug dealer who was concerned the police were going to raid his house. He had had the revolver for two or three weeks and hid it in a cavity in his bedhead. He and Ms O’Donnell had previously handled the gun but he had not fired it or any other gun. He had no experience with guns at all. He removed the revolver from his bedhead, tipped it up vertically, opened the cylinder and emptied it of what he believed were all of its six cartridges, which fell onto the bed. (In fact, as he was to discover in a moment, there were only five cartridges on the bed and one had remained in the cylinder.) He flicked his wrist to close the cylinder. While holding his phone in his left hand and the gun in his right, he pointed the gun out in front of him and pulled the trigger perhaps three or four times. He was not really looking where the gun was pointed. At the same time, he felt Ms O’Donnell, who had been playing poker on her phone,[1] go to get up from the bed. He was looking down at his phone when, having pulled the trigger the last time, the revolver discharged. He heard a thump and saw Ms O’Donnell lying on the floor between the bed and the window. He realized what had happened and screamed out in shock.
[1]The informant confirmed in his evidence that, in the days after her death, Ms O’Donnell’s bank account was debited $11 by “Poker Stars” (T 1486).
His parents then entered the room. His father asked what had happened. He told him that he did not know there was anything in it (i.e. the revolver). He told his parents to call an ambulance. One or other of them gave him a phone, and he then rang Triple-0. He tried to staunch the bleeding and performed CPR as directed by the operator. If he had known the paramedics would not be allowed into the room for such a long period, he would have taken Ms O’Donnell to hospital himself.
There was expert evidence to the effect that, if the revolver is sought to be unloaded in the manner described by Mr Lai, a cartridge can remain in the cylinder while the other five fall out; and, if the cylinder is flicked closed and the trigger is pulled a few times, the remaining cartridge could be discharged.
Thus, the defence case was that Mr Lai was not guilty of murder. Rather, this was a tragic accident, albeit a culpable one. Mr Doyle, who appeared for Mr Lai, all but conceded to the jury, in his final address, that his client was guilty of manslaughter by criminal negligence.
Disputed sentencing facts
Introduction
Plainly, the jury did not accept at least some of the key aspects of the Crown case and accepted, or at least were unable to reject, key aspects of the defence case.
One major sentencing fact was in dispute between the parties on the plea – namely, whether Mr Lai deliberately aimed the revolver at Ms O’Donnell’s head, or was not really looking, when pulling the trigger.
Crown submissions
Mr Grant, who appeared for the Director, submitted that, while the jury’s verdict necessarily implied acceptance of (or a failure to reject) the propositions that Mr Lai sought to unload the gun before using it and mistakenly believed the gun was unloaded when he pulled the trigger, the verdict is also consistent with the proposition that Mr Lai deliberately aimed the revolver at Ms O’Donnell’s head when pulling the trigger.
Mr Grant further submitted that, for two main reasons, the only reasonable inference open was that Mr Lai did in fact deliberately point the revolver at Ms O’Donnell’s head at the time he pulled the trigger, and that this was done in an attempt to threaten and intimidate Ms O’Donnell. First, it was said to be implausible that Ms O’Donnell would have been shot in the temple if Mr Lai was just pointing the gun without looking. Secondly, the relationship had been characterized by violent and threatening behaviour and was still of that character on the morning of the killing.
Defence submissions
Mr Doyle accepted that the acquittal on murder does not, of necessity, entail a finding by the jury that Mr Lai was not deliberately aiming the gun at the deceased. He submitted, however, that does not deny that there is a clear tension between the findings of fact sought by the Crown and the jury’s verdict. The jury evidently considered that, in critical respects, the account given by Mr Lai at least contributed to reasonable doubt about the Crown case. In these circumstances, Mr Doyle submitted, a judge should be slow to find facts adverse to Mr Lai which involved rejecting, on the criminal standard, critical parts of his account.
The only direct evidence on the issue in dispute, which came from Mr Lai on oath, is that he was not watching where the gun was pointed and that he felt Ms O’Donnell move to get up at the relevant time. His account is consistent with the right side of Ms O’Donnell’s head being close to the gun and positioned in line with the direction in which it must have been pointing when it discharged. Further, this occurred in a confined space. Thus, submitted Mr Doyle, the location of the gunshot wound is not as improbable as the Crown asserts.
It was also submitted that, not only is there no evidence that Mr Lai was threatening or intimidating Ms O’Donnell at the relevant time, but that the only evidence touching on the matter suggested the contrary. There was evidence that fights and arguments between them were loud. Any such fight or argument, had it occurred, would have been heard by one or both of Mr Lai’s parents, or a neighbour. Yet there was no evidence that those persons heard any such thing. If, as the Crown conceded the verdict implies, Mr Lai attempted to unload the gun, it is unlikely that he would seek to use such a gun to intimidate Ms O’Donnell, especially when it would seem to follow that she too would have believed it to be unloaded, since the unloading occurred when he was sitting next to her on the bed. Further, there was no physical or medical evidence suggesting an argument, a struggle or indeed any reaction at all by Ms O’Donnell following the production of the gun. This, submitted Mr Doyle, is consistent with Mr Lai’s account, and consistent with the DNA evidence which corroborated his evidence to the effect that Ms O’Donnell had handled the gun before – and therefore would be less likely to protest when Mr Lai started playing with it. The Crown were therefore driven to rely solely on the relationship evidence. This, submitted Mr Doyle, could only mean the employment of propensity reasoning, which in turn was an unsafe basis on which to establish that Mr Lai must have been pointing the gun at her and threatening or intimidating her on this occasion.
Conclusions
I turn to my conclusions on this issue. In short, I am not satisfied beyond reasonable doubt that Mr Lai deliberately aimed the revolver at Ms O’Donnell’s head at the time he pulled the trigger or that he did any such thing that morning in an attempt to threaten or intimidate her. There are three steps in my reasoning.
First, given, as Mr Grant correctly accepts, that the jury’s verdict necessarily implies acceptance of (or a failure to reject) the propositions that Mr Lai tried to unload the gun before using it and mistakenly believed he had succeeded in unloading it completely, that in turn must imply that the jury accepted (or failed to reject) Mr Lai’s evidence on those matters. At one point, I understood Mr Grant to submit the jury might have rejected Mr Lai’s evidence but still had a reasonable doubt about whether he knew the gun was loaded based on other aspects of the evidence. While that may be theoretically possible, it is more than a tad unrealistic. If other aspects of the evidence caused the jury to doubt that Mr Lai knew the gun was loaded, then, whatever the jury might have thought about his evidence on other issues in the case, they necessarily must have entertained the reasonable possibility that he was telling the truth when he said he believed the gun was unloaded. To reason to the contrary would be perverse.
Secondly, once I, as the finder of fact, am fixed with the jury’s finding that Mr Lai’s evidence is to be accepted (or cannot be rejected) on that crucial matter, as I must be, in the circumstances of this case, I cannot exclude the reasonable possibility of the truth of his account on other significant matters. Those matters include Mr Lai’s evidence that he and Ms O’Donnell were getting on well and did not argue that morning, that he was not really looking where the gun was pointed, that he was looking at his phone at the same time as he pulled the trigger and that he felt Ms O’Donnell, who had been playing poker on her phone, go to get up from the bed at the same time. While it is sometimes said that credit is indivisible, that cannot be strictly true, because, generally speaking, a tribunal of fact is entitled to accept or reject any witness in whole or in part. But, in this case, as I saw it, Mr Lai’s credit was more or less indivisible on these important matters. There was nothing any less plausible in his account of not looking where he was pointing the gun than there was about his belief that he had successfully unloaded it. Moreover, there was nothing to contradict his account. While his history of abuse and violence towards Ms O’Donnell was appalling, there is no evidence that he was intending to threaten or intimidate her on this occasion. Thus, as I have said, once I am fixed with acceptance of the reasonable possibility of the truth of the central aspect of his evidence in support of his defence, I cannot exclude the reasonable possibility of the truth of Mr Lai’s account more generally, at least on matters of significance.
Thirdly, and in any event, I accept the thrust of Mr Doyle’s submissions as to why I should not find this issue against Mr Lai. Further, the factors to which he points also support the conclusion to which I have come by another route.
I should also add this: While it is not necessary to my finding, I very much doubt that a jury that rejected, beyond reasonable doubt, Mr Lai’s evidence that he was not looking at where the gun was pointed when he pulled the trigger would entertain a reasonable doubt about as to whether he knew the gun was loaded at the time. Conversely, I think it very likely that the jury, having accepted (or having failed to reject) Mr Lai’s evidence of trying to unload the gun and believing it was not loaded, would accept (or fail to reject) his evidence of not looking where he was pointing the gun when he pulled the trigger. In those circumstances, I think my finding is very likely to be consistent with the jury’s thinking – which is as it should be.
Victim impact statements
I turn now to the victim impact statements.
Ten such statements were filed with the Court. They came from Ms O’Donnell’s mother Kerryn Robertson; her father Craig O’Donnell; her sister Indiana O’Donnell; her brother Jesse O’Donnell; her step-father Struan Robertson; her friends Monica Broadhurst, Bethany Tudor and Stacey Wilson; her aunt Lisa O’Donnell; and her cousin Karly O’Donnell. Nine of those statements were read to the Court by their authors or the prosecutor.
All of the authors described the immense sadness and loss they feel at the death of Ms O’Donnell. Amongst other things, Kerryn Robertson said, “To lose a child is one of the worst things that can happen to a parent, but to lose a child in unnatural circumstances, when someone has been responsible for taking the life of your child, is the ultimate tragedy.” Craig O’Donnell spoke of the heartache in missing his daughter’s laughter, talking to her, holding her and watching her grow. Indiana O’Donnell spoke of not being able to share special moments with her sister, such as growing up, marriage and children. Jesse O’Donnell said that, as a result of his sister’s death, he has suffered extreme grief and depression and that, on some days, he is so sad that he can do nothing but cry. Struan Robertson spoke of the feelings of regret in never being able to see his step-daughter grow and mature into the woman she had the potential to be. Monica Broadhurst, Bethany Tudor and Stacey Wilson respectively spoke of missing their friend’s laughter, her bright and bubbly nature and her enthusiasm. Lisa O’Donnell spoke of the shock in being told of her niece’s death and then the difficulty in conveying that horrible news to her own children, who are of course Ms O’Donnell’s cousins. Karly O’Donnell spoke of missing her cousin’s kindness and understanding, and of becoming upset whenever she thinks about their times together.
All of the victim impact statements are powerful and moving documents. I have had regard to their contents in considering sentence.
I cannot leave the victim impact statements without mentioning something that I have never witnessed before in a court room. When reading her statement, Kerryn Robertson paused, faced Mr Lai and said directly to him, “I forgive you, Nelson.” So, remarkably, Ms O’Donnell’s mother forgave him. That was an act of immense dignity and must have taken great courage. I doubt whether many others in the community could forgive the killer of their child in like circumstances. I do not think I could do it. Mr Doyle advised that his client does not think he deserves forgiveness. I hope Mr Lai appreciates, or at least comes to appreciate, just how rare it is to have forgiveness from a person in Mrs Robertson’s position.
Nature and gravity of the offence
I turn now to the nature and gravity of the offence.
In this State, manslaughter is a common law offence the maximum penalty for which is set by statute at 20 years’ imprisonment.[2]
[2]See s 5 of the Crimes Act 1958 (Vic).
The offence is serious, by definition. A human life has been lost. When a child pre-deceases his or her parents, it reverses the natural order of things. As Mrs Robertson remarked, such a death is all the more unbearable when the child is so young, as Ms O’Donnell was, and is taken as a result of criminal behaviour.
The prosecution case on manslaughter, and as left to the jury, was manslaughter by criminal negligence. This means that the jury accepted that, in failing properly to check that the gun was fully unloaded and then in pulling the trigger at all, or at least without ensuring the gun was pointed away from Ms O’Donnell, Mr Lai behaved in a way that involved such a great falling short of the standard of care which a reasonable person would have exercised, and which involved such a high risk that death or really serious injury would follow, that his behaviour, and its tragic consequence, merited criminal punishment.
While manslaughter is one of the more serious crimes known to the law, the circumstances of its commission, and the resulting sentences, vary widely. Usually, voluntary manslaughter (which no longer exists in Victoria since the abolition of provocation as a defence to murder) is the category regarded as the most serious; then manslaughter by unlawful and dangerous act is usually a rung lower; and then manslaughter by criminal negligence is usually another rung down. Often, there will be a lower level of moral culpability in the offender who killed by criminal negligence than the one who killed by an unlawful and dangerous act. This is because, in most cases of criminal negligence, there will be no intent on the part of the offender to cause any harm whatever to the victim whereas such an intention usually will be present in cases of manslaughter by an unlawful and dangerous act. But there is no inflexible rule. Some instances of manslaughter by criminal negligence will be more serious, and result in heavier sentences, than instances of manslaughter by an unlawful and dangerous act. Each case must turn upon its own particular facts. Nevertheless, a survey of the authorities shows that sentences for manslaughter by criminal negligence, in Victoria, have generally been more lenient than those imposed for other forms of manslaughter.[3]
[3]See R v Jagroop (2009) 22 VR 80 at 90[63]-91[69] per Weinberg JA (Williams AJA agreeing at [75]).
As I have said, this is a case of manslaughter by criminal negligence, not by some intentional act of violence that amounted to an unlawful and dangerous act. The jury’s verdict, and the finding I have made earlier in part consequent upon that verdict, is inconsistent with Mr Lai having any intention of harming Ms O’Donnell when handling the gun. So, that is a factor tending towards a lower level of gravity of manslaughter.
On the other hand, some features of the present case tend this towards a relatively serious example of manslaughter, at least by criminal negligence. First, even a person who was inexperienced with guns, as Mr Lai was, would realize they have to be handled carefully. Yet he pulled the trigger of the revolver – not once, but repeatedly – when in a confined space without carefully ensuring both that it was unloaded and was not pointed at or near Ms O’Donnell, who was right next to him. In my view, that was a profoundly negligent thing to do. Indeed, it represents substantially more culpable behaviour than is required to make out the basal level of criminal negligence necessary for manslaughter.
Secondly, since Mr Lai had not slept much over the previous five days and had consumed ice on more than one occasion during that period, he must have realized he was in no condition to be handling a gun. In resisting this point, Mr Doyle relied on the evidence of Dr Gerostamoulos, a toxicologist called by the Crown at trial, to the effect that a user of ice might not notice he is tired but nevertheless have a diminished ability to perform physical tasks. He also relied on Mr Lai’s evidence that he was neither “peaking” nor “coming down” from ice use, and that he felt “normal”. He may well have felt “normal” in the sense that he no longer felt affected by ice. But he accepted he was feeling “a little bit tired”.[4] And common sense dictates that a person who has slept very little over a period of five days, even if not feeling more than a little bit tired, would realize that it was nevertheless at least unwise to be doing something as risk-laden as handling a gun, particularly when inexperienced with such a potentially dangerous thing.
[4]T 1553.
Thirdly, Mr Lai was holding the gun for a person who, for illicit reasons, was worried about police finding it, which he must have known was at least morally wrong. Further, by reason of his prior history, which I shall come to shortly, Mr Lai must have known that he was prohibited from possessing a gun at all.
Overall, I regard this crime as a comparatively serious instance of manslaughter by criminal negligence. Mr Lai’s culpability for the offence is quite high.
Mitigating factors
I turn now to the factors in mitigation on which Mr Lai is entitled to rely.
Offer to plead guilty to manslaughter
The first matter in mitigation is that Mr Lai twice offered to plead guilty to manslaughter prior to trial.
The first offer was made prior to the committal hearing. The offer was rejected.
The second offer was made by letter from Mr Lai’s solicitors dated 3 March 2015. That offer also was rejected. The letter was written after the defence had filed a response to the Crown opening and the report of a ballistics expert. It contained a persuasively reasoned submission as to why there was a reasonable doubt about the intention required for murder. The very same points made in that letter were made by Mr Doyle in his closing address to the jury. The letter also accepted that “pulling the trigger of a firearm in close proximity to another person without verifying that it is empty is a criminally negligent act”.
In those circumstances, I accept that Mr Lai’s offers to plead guilty to manslaughter demonstrate acceptance of responsibility and a willingness to facilitate the course of justice and are of a notional utilitarian value.[5] As Mr Doyle pointed out, had the first plea offer been accepted, the necessity for witnesses to give evidence at all would have been avoided, as would a contested committal hearing and a trial. Had the second offer been accepted, at least a trial and the giving of evidence thereat would have been avoided.
[5]Mr Doyle referred to R v Carr [2012] VSCA 299 at [69]-[71].
Mr Doyle submitted that the fact that Mr Lai did not plead guilty to manslaughter upon arraignment before the jury did not diminish the value of his offers to plead guilty.[6] Mr Grant submitted it did, because that course still left the Crown in a state of uncertainty as to whether the accused would be found guilty of manslaughter.
[6]Mr Doyle referred to DPP v Pennisi [2009] VSCA 322 at [11] and R v Cardoso (2003) 137 A Crim R 535 at [20].
There are, of course, sound forensic reasons why an accused who has offered to plead guilty to manslaughter prior to a murder trial might refrain from doing so before a jury and instead, through counsel, invite, or all but invite, the jury to find him or her guilty of that offence, or, equally, in some cases, even argue against manslaughter. Sometimes, again for forensic reasons, an accused might take the opposite course.
While there might be room for a different approach in other cases, I do not think Mr Lai’s failure to plead guilty to manslaughter on arraignment in the presence of the jury in this case should diminish the weight in mitigation to be accorded to his offers to plead guilty prior to trial. The defence case was conducted consistently with the way it had been argued in the letter of 3 March. Mr Lai, in his evidence, admitted the factual basis for manslaughter by criminal negligence. And Mr Doyle all but invited the jury to find Mr Lai guilty of manslaughter. While a manslaughter verdict may not have been a certainty, given the way in which the defence case was conducted and Mr Lai’s evidence, an outright acquittal would have been extremely surprising.
In my view, it follows that Mr Lai’s offers to plead guilty are the equivalent in mitigation of his having pleaded guilty, and will be treated as such.
I should add that, in coming to that view, I am in no way critical of the Crown for declining to accept the plea offers. Quite properly, no submission was made to me that there was no case to answer on murder. Plainly, there was a case of murder to be tried by the jury.
Remorse
The second factor in mitigation is that I am satisfied that Mr Lai is remorseful for his criminally negligent actions in killing Ms O’Donnell.
There are several reasons that, in combination, drive me to that conclusion. First, Mr Lai immediately rang an ambulance, admitted to the Triple-0 operator that he had shot his girlfriend and spent the next half hour trying desperately to save her life.
Secondly, while, as I said, it makes for harrowing listening, it is apparent from the Triple-0 call that Mr Lai was very distressed when trying to resuscitate Ms O’Donnell. His concern can be heard when he repeatedly asks that the ambulance hurry. It is also apparent that his hopes are raised when she begins breathing at one point but are dashed again when she expires. There was also evidence at trial that, even after he was removed from the room by police, Mr Lai was distressed and asked to go back in to assist.
Thirdly, his offers to plead guilty to manslaughter, his admissions in evidence and the way in which the trial was conducted are all consistent with remorse.
Fourthly, in his evidence, he expressed regret that the family of Ms O’Donnell has had to wait so long to hear about what happened.
Mr Doyle accepted that a failure to plead guilty in the presence of the jury might, in some cases, impact on whether a court should be satisfied of remorse, but submitted that this is not such a case. I accept that submission.
Prospects of rehabilitation
The third matter in mitigation is that I am satisfied that Mr Lai has reasonable prospects of rehabilitation. I do not say those prospects are good or excellent, but only reasonable.
The factors suggesting better prospects of rehabilitation are Mr Lai’s offers to plead guilty; his remorse; his education and training; some work history; his family’s support; and his attempts at drug rehabilitation. He is relatively well educated, having completed VCE and studied various things at university or other tertiary institutions, including engineering, gaming, business (legal practice) and computer-related matters. He has worked as a kitchen hand, a croupier, a call centre representative, a paralegal and an IT support officer. His family remain supportive of him. His brother has offered him work in his café upon release from prison. As I understood it, his brother is also prepared to help him arrange counselling to improve his approach to relationships and to commence the process of reconnecting with his children from his previous relationship. It is promising that his urine screens in custody have been negative for drugs and that he has participated in drug rehabilitation programmes within the prison.
On the other hand, factors suggesting poorer prospects of rehabilitation are Mr Lai’s long-standing history of illicit drug use, particularly ice; his limited work history in recent times; his prior criminal history; and the appalling way in which he treated Ms O’Donnell during their relationship.
As to his drug use, it has been a feature of his life for a long period, and one of the triggers for abusive and violent behaviour in his relationship with Ms O’Donnell. As I said a moment ago, however, it is at least promising that he has returned negative tests for drugs while in custody and that he has participated in drug rehabilitation within the prison. He will need to do a good deal of work on this issue, and on his approach to relationships, to turn his life around, potentially reconnect with his children and make himself employable and productive again. Sadly, as is apparent from the evidence led at trial, one of things that Ms O’Donnell was urging him to do was to clean himself up. It is only now that he is attempting to do so.
As for his prior criminal history, all of his findings of guilt or convictions have been sustained in the Magistrates’ Court, bar one appearance in the County Court on appeal. In 2003, on deception charges, Mr Lai was sentenced, without conviction, to a community based order (“CBO”) for 12 months. He had allowed his bank account to be used to make false transactions. In 2004, he received a six-month CBO for the same type of offending. In March 2006, he was convicted of assault, recklessly causing injury, damaging property and breaching an intervention order concerning his former partner and placed on a 12-month CBO. The assaults concerned his former partner’s father. In October 2006, he was sentenced to 85 days’ actual imprisonment for breaching the same intervention order, which was constituted by texting, calling and attending his former partner’s address; and to a further three months’ imprisonment wholly suspended for breaching the CBO imposed in March. In May 2007, he was sentenced to four months’ imprisonment wholly suspended for recklessly causing injury to his former partner and breaching the intervention order again. In January 2009, he was sentenced to an aggregate of 15 months’ imprisonment, with a non-parole period of nine months, for recklessly causing injury twice to his former partner, threatening to kill her and thrice breaching the intervention order. In June 2010, he was sentenced to 266 days’ imprisonment, with all but 86 days suspended, for breaching a family violence order. On appeal to the County Court, that sentence was reduced to 120 days’ imprisonment, with all but 86 days suspended. In December 2012, he was placed on a community correction order (“CCO”) for 15 months for breaching a family violence order, which occurred in the context of dropping off birthday presents for his children. In July 2013, he was convicted of breaching the CCO and the order was confirmed.
Mr Doyle also advised the Court of subsequent convictions sustained in May 2014 for breaching the CCO by non-attendance and driving whilst suspended, for which he received a total of one month’s imprisonment. I shall return to this sentence, and its impact on totality, when passing sentence for the present offence.
As I understand it, the present offence was committed during the currency of, and therefore in breach of, the CCO, which is an aggravating factor.
Mr Lai’s criminal history shows he has been violent to his former partner and on one occasion to her father, that he has repeatedly failed to comply with court orders and that he is no stranger to prison, albeit he has never committed an offence as serious as the current offence. But the existence of this prior criminal history means it cannot be said he is previously of good character. Further, that history and his subsequent convictions do count against his prospects of rehabilitation.
The same may be said of his history of abusive behaviour towards Ms O’Donnell. While the evidence discloses that Mr Lai and Ms O’Donnell loved each other, there is no dispute that Mr Lai was often jealous and controlling of, and abusive and violent towards, his partner. It is important to make clear, however, that Mr Lai is not charged with, and is not to be sentenced as if convicted of, any offences that might be disclosed by his awful behaviour towards Ms O’Donnell. That evidence was led in support of a murder charge. Since he has been acquitted of murder and found guilty of manslaughter by criminal negligence, not by any act of intentional violence, his prior behaviour, as appalling as it was, can have only a quite limited relevance in sentencing. In particular, it denies any claim to good character and tells against his prospects of rehabilitation.
That is why, despite his offers to plead guilty and his remorse, I am of the view his prospects of rehabilitation are, at best, only reasonable.
Sentencing purposes
Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.
In my view, general deterrence, denunciation and just punishment have a significant role to play in the circumstances of this case. People should understand that behaviour of the type engaged in by Mr Lai is denounced by the courts and will result in punishment that reflects that a life has been taken in culpable circumstances and that the lives of the deceased’s loved ones have been marred forever.
Whilst specific deterrence must be given weight too, particularly given the lawlessness disclosed by Mr Lai’s prior criminal history, his bad behaviour towards Ms O’Donnell and the fact that he was prepared to hold a gun for a drug dealer knowing that he should not have had a gun anyway, I have given it less weight than otherwise on account of his offers to plead guilty, remorse and reasonable prospects of rehabilitation and my view that he is unlikely to reoffend in this particular way.
Rehabilitation remains an important sentencing purpose. Given my conclusion as to the unlikelihood of his reoffending in the same way, and my view that the weight I have given to general deterrence, denunciation, just punishment and specific deterrence will produce a sentence that protects the community in any event, I can see no need for any weight to be given to protection of the community as a separate or additional sentencing purpose. If it has any role to play in this case, protection of the community will be better served by the fixing of a sentence that maximizes Mr Lai’s chances of rehabilitation, especially given that he must be returned to the community at the expiry of his sentence in any event.
Parsimony
Section 5(3) of the Sentencing Act provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. This provision reflects the common law principle of parsimony. I have applied this principle when fixing sentence.
Current sentencing practices
In so far as I can determine them, I have had regard to current sentencing practices for manslaughter.
Sentencing statistics show that, for the period from 2009-10 to 2013-14, prison sentences for manslaughter ranged from three to 14 years’ imprisonment; the average sentence ranged from about six years and nine months’ imprisonment in 2013-14 to just over eight years’ imprisonment in 2009-10 and 2012-13; and the median sentence was eight years’ imprisonment, as was the mode. During the same period, non-parole periods ranged from nine months to ten years; the median non-parole period was five years and four months; and the modal non-parole period was five to less than six years.[7]
[7]Sentencing Advisory Council, Sentencing Snapshot (No 172), May 2015, pp 3-5.
Of course, those statistics are of limited utility, mostly because they do not distinguish cases according to their most important sentencing considerations – such as the form of manslaughter, the seriousness of the particular offence, whether there were significant aggravating or mitigating factors, whether there was a plea of guilty or not guilty, whether or not there were significant prior convictions, and so on. Nevertheless, they do give some guidance.
Sometimes, case comparisons can be a useful tool in gauging current sentencing practices. Counsel referred me to several cases involving manslaughter by accidental shooting,[8] all of which I have considered. I shall refer to just two of those cases in these reasons.
[8]DPP v Smith [2012] VSC 314; R v Torun [2014] VSC 146; DPP v Torun [2015] VSCA 16; R v Nguyen [2010] VSC 528; DPP v Sypott [2004] VSCA 9; DPP v Barnwell [2002] VSC 280; R v Reynolds (Unreported, Court of Appeal, 28 May 1997); R v Stratton (2008) 20 VR 539.
First, Mr Doyle placed particular emphasis on R v Torun[9] as a comparable case. Mr Torun, who was aged only 24, pleaded guilty to manslaughter. He shot and killed his girlfriend by deliberately pointing the gun at her, which he believed was unloaded, and pulling the trigger once. He and a friend then rushed her to hospital but got lost and went to a police station for help instead. While he too had a history of abusive behaviour towards his girlfriend (albeit a briefer and less violent relationship), Mr Torun, like Mr Lai, did not intend the deceased any harm at the time of the shooting – i.e. it was an accident. He was sentenced to eight years’ imprisonment with a non-parole period of five years. A Director’s appeal against sentence was dismissed.[10]
[9]R v Torun [2014] VSC 146.
[10]DPP v Torun [2015] VSCA 16.
Mr Doyle submitted Mr Lai’s culpability was lower than Mr Torun’s, for two reasons. First, Mr Torun deliberately aimed the gun at the deceased, whereas Mr Lai did not. Secondly, Mr Torun had experience in the proper use of firearms, and should have known better, whereas Mr Lai did not. Mr Grant submitted that the fact that Mr Lai knew the gun was loaded before he handled it and, on his own account, was not feeling the effects of drugs, made his behaviour more culpable than Mr Torun’s behaviour, who failed to recall that it was loaded owing to his drug-addled state.
In my view, Mr Lai’s offence, in his particular circumstances, demands a higher sentence than Mr Torun’s offence did. While it is true that Mr Torun’s offence had the added culpability that the gun was deliberately pointed at the deceased, it must be remembered that Mr Lai repeatedly pulled the trigger, which was to tempt fate three or four times. Further, Mr Lai, while tired, unlike Mr Torun, was not in a drug-addled state and ought to have realized that he should not have been even handling what he knew, originally, to be a loaded gun in the first place. Further still, Mr Torun had a much more modest criminal history over a shorter period, had never been gaoled, was relatively young and had better prospects of rehabilitation than Mr Lai. Finally, Mr Torun’s plea of guilty was worthy of greater weight than Mr Lai’s offers to plead guilty, as there was some prospect that Mr Torun might have been acquitted outright had he run a trial,[11] whereas a conviction based on negligent manslaughter was almost inevitable in Mr Lai’s case.
[11]See R v Torun [2014] VSC 146 at [47].
The second case is R v Reynolds.[12] At a trial, Mr Reynolds was acquitted of his wife’s murder but found guilty of her manslaughter. He was sentenced on the basis that, during a drunken argument, he had accidentally shot his wife in the chest while deliberately pointing the gun at her and attempting to confirm that his shotgun was unloaded. He was aged 52, with no prior convictions, of positively good character and had offered to plead guilty prior to trial. The trial judge imposed a sentence of six years’ imprisonment with a non-parole period of four-and-a-half years. The sentence was imposed during the operation of s 10 of the Sentencing Act, which required applicable sentences to be reduced by one-third to account for the abolition of statutory remissions. Thus, the undiscounted sentence would have been nine years’ imprisonment with a non-parole period of six-and-three-quarter years. As Mr Grant pointed out, it is also notable that the maximum penalty for manslaughter at that time was still 15 years’ imprisonment, not the current 20 years’ imprisonment. The Court of Appeal (comprising Brooking JA, with whom Winneke P and Ashley AJA agreed) dismissed Mr Reynolds’s application for leave to appeal against sentence.
[12]R v Reynolds (Unreported, Court of Appeal, 28 May 1997).
As will be seen, I consider that Mr Lai’s offence demands a sentence a little longer than the sentence that, but for s 10, would have been imposed on Mr Reynolds, recognizing also that the actual sentence was imposed at a time when the maximum penalty was three-quarters of the current maximum.
I could go on with comparisons. But, in the area of sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. And, in any event, sentences are not precedents to applied or distinguished. Nevertheless, I have found the foregoing sentences and the other sentences I have considered, and the reasons given for imposing them, instructive in gauging the order of sentences imposed for manslaughter, particularly where the deceased is killed by accidental shooting, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors. In the end, however, as is always the case, because of the limits of that process, I have been driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentence for Mr Lai’s offence of manslaughter.
Sentence
I turn now to sentence.
Balancing all matters as best I can, I have concluded that, for the manslaughter of Rekiah O’Donnell, Nelson Lai will be sentenced to nine years and five months’ imprisonment with a non-parole period of six years and eleven months.
Both figures are not the more usual roundish numbers. This is because I have reduced the head sentence and the non-parole period each by one month on account of the fact that Mr Lai has been denied one month’s pre-sentence detention by the service of the sentence imposed as a result of his subsequent convictions in May 2014. But for the timing of its imposition, that sentence almost certainly would have been directed to be served concurrently with the current sentence. Fairness and principle dictate that I must adjust the sentence I otherwise would have imposed accordingly. Thus, the sentence I have imposed and the pre-sentence detention I am about to declare are intended to have the effect that, in real terms, from the time Mr Lai was arrested on the day he killed Ms O’Donnell, he will be subject to a potential total period of nine-and-a-half years in prison and will not be eligible for parole until he has spent at least seven years in custody.
Pursuant to s 18 of the Sentencing Act, I declare that 628 days be reckoned as already served under this sentence.
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